Personal freedoms and the Mututho Rules

There are various schools of thought on the matter of personal freedoms, what the Americans call "civil liberties." For example, the US Constitution's First Amendment protects, among other things, free speech, which has been interpreted to include such esoteric subjects as what one wears, where they wear it and whether or not an institution, say a school, can determine whether what one wears is acceptable or not. The American Civil Liberties Union has gone to court successfully to argue that public schools cannot force students to wear a uniform, even though it has lost the case to allow students to wear 'gang colours'.

I am on record as having supported the enactment and enforcement of the Mututho Rules regarding the sale, consumption and advertising of alcoholic drinks. However, I am alive to the fact that these rules are having an invasive effect on personal freedoms, and if anybody wishes to challenge these rules, the question they should be asking is whether they can accept a certain amount of curtailment on their personal freedoms and, if so, to what extent. The businessmen challenging the rules have missed the point; it is not about their freedom to engage in commercial practices that is under threat, but the freedom of patrons of their establishments to determine when, how, how much and why they will imbibe alcohol.

Mr. Mututho is a lawmaker and his job is to make laws that will benefit his constituents. This is what must or should have informed his desire to control the alcoholic beverages industry. After all, a significant and vocal section of his constituency alleged that alcohol consumption has been responsible for the moral, spiritual, entrepreneurial and academic decline in their fortunes and they desired a law that would address the failings in his constituency. But Mr. Mututho could no make a law specifically targetting his constituency as he could demand that the rest of the country ignore the portions of the law that affected their personal and professional lives.

The debate surrounding the Mututho Rules should be about personal liberty and not about commercial activity. In Kenya we regulate business all the time; by requiring entrepreneurs to obtain various licenses and permits in order to operate; by standardising their merchandise and services; by restricting to whom they can sell; by regulating how they manage their waste; and by imposing safety and public health rules to ensure the fitness of their merchandise or services. For instance, it is unlawful to sell alcoholic drinks or tobacco products to children below the age of 18 years or to dispose chemical waste in waterways or water bodies. No one questions these restrictions, even though they impose a cost on businesses and affect their ability to maximise their profits. The people do not oppose these restrictions because they accept that they are for the greater common good.

When it comes to the Mututho Rules, some of the restrictions are not without merit. For instance, we all accept that alcoholic beverages should not be sold to children; children should not be allowed in premises that sell alcoholic drinks; children should not be exposed to advertisements on alcoholic drinks; all persons engaged in the manufacture, sale, distribution, and marketing of alcoholic beverages should be regulated to ensure that their products meet the highest quality standards, that they ensure a profit for those engage in the industry, and that society as a whole is not harmed by this industry. 

However, it is the aspects that affect personal liberty that are controversial and should be addressed if we are to rescue the situation from turning into a farce. We should challenge the rules that state when we can enjoy a drink and for how long, or what the limit should be. If a person decides to drink until he is quite senseless, unless he becomes a nuisance, it is not up to the State to determine whether he should be prosecuted for it or not. It is his right to drink himself into an early grave. The State cannot nanny all of us; if it did, it would have no time for building roads or staffing health clinics. If a proprietor of a pub or hotel wishes to sell alcohol to his patrons on credit, the State cannot deny him this right; after all, the State is also a borrower of public funds and no one places a restriction on  whom the the state can borrow from or on what terms.

I would challenge those aspects of the rules that affect my personal freedoms, including my right to associate with anyone I please. If I want to meet with my friends and associates till the wee hours of the morning, the State cannot restrict this association simply because it is being held in a pub. I should be able to access credit in whatever form I deem fit so long as the credit is not a risk to the State. The debate raging over the Mututho Rules should be restricted to its civil liberties portions and not on anything else. I would uphold the portions that restrict the location of bars as on those that limit sale to people in the age of majority. We must elevate this debate; otherwise, the State will have all the right in the world to interfere in our personal freedoms simply because we do not know any better.