However, the practice of oathing was treated as a cultural practice and
was overlooked initially by colonialists. This changed during the Mau Mau period.
Criminalization was a process of making specific practices illegal and punishable
which was crafted to support colonial interests. The colonial government used
their invented laws to criminalize and control the spread of the Mau Mau
movement; the oath was viewed suddenly as a criminal act even though
historically it was embedded and accepted in traditional society.
The Colonial Criminalization of Mau Mau Oathing, 1952-1960
“Law does not operate in a vacuum; rather if a legal norm is to command the
requisite respectability and hence acceptance and compliance, it must take
into account the social ethos of the community it is supposed to regulate...the
defendant has committed the offence in the execution of what he honestly
believed was his duty to society.”35
As previously mentioned, prior to 1952, oathing activities were not
considered criminal. Oathing was used in conjunction with lower court systems or
by elders as a means to support the overall judicial process. The goal was that
by swearing on the oath, guilt or innocence would eventually be revealed. Like
many parts of East Africa during the State of Emergency, oathing by Africans
became criminal activity that would result in death, not death necessarily from the
power of the oath, but instead by the power of the colonial state. As F.D. Corfield
proclaimed in his historical survey of Mau Mau, it was the function of the
35 Onesmus K. Mutungi, The Legal Aspects of Witchcraft in East Africa with Particular Reference to
Kenya, (Nairobi: East African Literature Bureau, 1977), 19.
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