Kidero’s PR team is complaining that the Daily Nation is putting only a snippet of the video that captures the slap, not the full video showing: the attempt to block Shebesh and team from barging forcefully into the Governor’s office; the forceful entry into the Governor’s office doorway by unruly and menacing men accompanying Shebesh; the angry threats of immediate harm to the Governor constituting assault; a low kick well aimed at the Governor’s genitalia; and the spit that Shebesh unleashed on Kidero’s lip.
In all jurisdictions whether in Kenya or in America, Rachel Shebesh committed a misdemeanor crime called “assault by contact”. Irrespective of gender (I see Cecily Mbarire trying to make this a gender crime), in the U.S., if you forcibly confront someone in their house or office, invading their personal space within inches of their face, and inadvertently spit on their face as you shout epithets, then they respond by slapping you – you have no case, period! It is called the doctrine of self defense, in all reasonable sense.
Even without Rachel’s spit on Kidero’s face which may not be clearly visible on video, Shebesh still committed assault. It is the spit that makes it assault by contact (or “battery” in some jurisdictions). Even without the spit, Shebesh committed a misdemeanor crime.
Common assault is punishable under Kenya’s Penal laws (Cap. 63, XXIV, 250; with other assaults at Cap. 63, XXIV, 253).
In many violent confrontations, people often forget to look at all elements and examine one of the most important questions of who the initial aggressor was. In many instances, once the initial aggressor is found to have committed a crime, legal culpability (of perceived victim) often ends at that point if what followed was a reasonable response.
What is assault?
Assault does not mean throwing a punch or anything like that. It simply means doing the following related things:
1) Merely confronting someone in their personal space and trying to physically strike – even without touching.
2) Acting in a threatening manner that puts the other in fear of harm.
Here is what Rachel Shebesh did:
- Shebesh physically confronted Governor Kidero in the latter’s office (intent of aggressor proved; victim is in their lawful space).
- She aggressively pursued Kidero not acting alone, but accompanied by an army of menacing men (who the aggressor(s) was/were, is confirmed).
- Despite being denied entry, Shebesh and her accomplices forced their way through Kidero’s office door and violently acted in a threatening manner that put Kidero in fear of immediate harm (putting intended victim in fear of harm is confirmed). This fear may have induced temporary post-traumatic amnesia in Kidero who claims his memory of the event was temporarily clouded following the adrenaline-filled experience of fear of imminent harm by the menacing and angry-Mungiki-looking army.
- Shebesh and her army, visibly shouting threats, pointing fingers, and angrily charging, actually came within inches of the Governor’s face, with the former unleashing a spit on the latter’s face [try your luck seeing the spit on video] (actual physical contact was initiated from the aggressor, whether inadvertently or not).
All the elements above constitute the legal definition of assault by contact (aka physical battery).
The events above place Rachel Shebesh as the aggressor who initiates this confrontation.
Any assaulted victim is entitled to defend themselves (a very basic concept of self defense).
In defending themselves, the victim must limit their actions to use of reasonable force.
Slapping an angry aggressor who forces their way into your office accompanied by 50 menacing Mungiki-look-alikes, coming within inches of your face (invading your personal space), and in the process unleashing a provocative spit – is within the reasonable realm of self defense.
Kidero did not punch Shebesh unconscious or fire a bullet through the obvious aggressor. That would have been excessive and unreasonable use of force. But slapping Shebesh is a very reasonable response to the situation described above. This is not a difficult legal case to resolve.
Ilei iwe funzo to aggressors who commit assault on a daily basis with gross impunity – Rachel Shebesh needs to be found guilty of assault. The governor needs to be found to have acted in self defense, end of story.
The lesson here is that you may never predict the physical or legal outcome of any violent confrontation. Violence should never be anyone’s purported trademark towards problem solving. Therefore Shebesh should think twice before confronting people hovyo hovyo! You may lose both in the physical exchange, and in court!