The name is absent

administration in some communities. It has prevailed as a strategy for handling
difficult and unusual cases.

Among the Gurage in Ethiopia, oathing was also a process used to
determine guilt or innocence in cases where there was insufficient evidence. For
questionable cases, the defendant can take an oath of innocence. If the
defendant is found guilty, illness to the oather and succeeding generations is the
consequence.¹⁶ This oath is similar to the kithitu because it also unites the
actions of the defendant with his family, holding the entire group accountable for
the guilt. This process is explained by William Shack:

“Ritual oathing is a double-edged function in the Gurage judicial process of
determining guilt or innocence: it makes manifest the moral and economic
Iibability of the oath of ‘the father's clan’, under which men assume the liability
for the misconduct of kinsmen; it limits the possibility of presenting perjured
evidence since the threat of supernatural punishment ultimately effects all
living clansmen and future descendents as well.”¹⁷

We see in all of these cases the existence of oathing as a well established
process for maintaining societal order. Oathing was not a phenomenon unique to
Kenya but was a process for determining truth in many different societies. The
application of the oath in court cases and hearings was a spiritual process that
worked within the legal structures to determine the innocence or guilt of an
individual, and in all cases oath pledges of the guilty had severe death penalties.
With this background, it is time to now turn to the colonial political, economic, and
social tensions that lead to the transformation of the oath in Kenya from a
ceremony of morality to criminality.

¹⁶ Max Gluckman, Ideas and Procedures in African Customary Law, (Oxford: Oxford University Press,
1969), 158-159.

¹⁷ Gluckman, Ideas and Procedures, 159.

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