A magnificent multi million shilling storey block due to be occupied in December came tumbling down in the up market Kilimani area of Nairobi in what the Architectural Association of Kenya’s chairman, Mohammed Munyanya termed as poor workmanship and inferior structural equipment.

“As an association, we are extremely concerned that some of our members keep flouting the construction laws thereby exposing the public to all sorts of risk,” he said.

It is not known how the collapsed apartment passed the test after Kenya’s Local Government Minister, Musikari Kombo, set up a team to inspect the safety of all the buildings in the city, promising to bring down dangerous ones.

There is rising discontent on service delivery. Road accidents are on the increase due to poorly maintained vehicles. Potholes abound on roads despite the fact that road levies are collected. Unroadworthy vehicles still ply most country routes due to police negligence. Buildings are collapsing either due to non observance of construction standards or a blind eye paid to the constructing by building engineers. There have been cases of workers burning in factories as a result of being locked up. Many patients are dying in hospital due to negligence by medical practitioners. Exams are leaking, placing students who have not benefited from the leakage at a disadvantaged position. Justice demands that, if found guilty, the offender should be punished.

“Tort” from the Latin “ tortus” which means “wrong” refers to the body of the law which allows an injured person to obtain compensation from the person who caused the injury. Every person is expected to conduct themselves without injuring others. When they do cause injury to others, either intentionally or by negligence, they can be required by a court to pay money to the injured party ("damages") so that, ultimately, they will suffer the pain caused by their action. Compensation is probably the most important social role of tort law.

Tort also serves as a deterrent by holding persons responsible for their actions and to educate the community as to what is unacceptable conduct. The moral lesson that wrongdoers pay for their actions - is a pinnacle of modern society and, indeed, of many religious beliefs.

There are many advantages of treating the cases above under tort law than under criminal law. Tort laws are civil cases, where the burden of proof is lower. In a criminal trial, to be found guilty, the prosecutor would have to convince the judge of guilt 'beyond any reasonable doubt'. However, in a civil case, under tort law, all that is required is the mere 'preponderance of evidence'. So, tort cases can be settled fast and compensation paid quickly.

In many African countries, criminal law fails to deliver compensation to the victims in time. It also fails to deliver retribution to the perpetrators of the crime. Thus, there is no justice at all. If the tort  approach is followed in all cases of injury or death arising out of negligence — preferring restitution to retribution — then the role of the police in investigating such 'crimes' can be drastically reduced. All those who are booked for 'causing death due to rash and negligent driving' would be forking out compensations instead of getting squeezed by the criminal justice system. The ministry of transport will be held accountable for accidents emanating from bad roads. The traffic police will be held accountable for malfunctional traffic lights and for hours wasted on the roads due to long queues. Politicians would be held accountable for fanning animosity.

Once compensation through torts is established, it will send out a powerful signal to all players in the market economy (as well as the state) to be extremely careful. There will always be a powerful incentive towards caution. We shall see more notices such as: "Caution! Wet Floor" for if you slipped in a restaurant with a wet floor, and there was no warning, you would be very rich! The examinations council shall compensate students for missing chances in tertiary institutions due to raised pass marks emanating from leaked exams. Painters shall compensate victims for not putting up a “wet paint” sign. Airlines shall guard against unnecessary delays and loss of baggage.

Tort laws will lead to the emergence of insurance companies. Builders of apartments would know that they would be sued if their buildings collapsed. They would therefore insure. Private insurance companies, on the other hand, would ensure buildings are of better quality than any government agency today. Similarly, doctors would insure against malpractice suits, weeding out the quacks.

Tort laws will turn lawyers into negligence entrepreneurs. They will go scouting around for victims and make sure that they get their due far better than any social worker. The laws will be extremely effective against adulterated food and drinks which cause death or injury. For every 'liquor tragedy' there would be compensation. For every death caused by spurious drugs there would be compensation. That would be justice.

The lower burden of proof in torts has been found to be economically 'efficient' by those who undertake the economic analyses of law. In a criminal case, where the criminal, if found guilty, is imprisoned, society suffers a net loss and it makes sense to see that such cases are decided upon only after thorough scrutiny of the evidence. But under tort law, there is only a transfer of resources, society suffers no net loss, and it makes sense to decide these cases fast.
Tort is the way to go!