This is not the United States of America. The spirit of the American Revolution is not alive and thriving in the savannas of this most East African of East African nations. The United States was built on the foundation of the greatest extent of human liberty that one could get away with in a nation-state. It is why the Supreme Court in Roe v Wade could read privacy into the First Amendment though neither pregnancies nor their terminations are mentioned at all in the First Amendment.
The American Declaration of Independence is a truly remarkable statement of intent. The Preamble to the Constitution of Kenya is a poor imitation.In it you will struggle to find the equivalent of a rallying call to extend human liberty to its most extreme end. Instead, it is a set of platitudes perfected by the rhetorical flourishes of carnivore buskers; it is incapable of even raising the hackles of those who feel that their right to privacy is under the greatest of threats from their government.
When Kethi D. Kilonzo asserts with authority that the right to privacy is essential to a free society and she quotes the principles and the right enshrined in Article 91, I wonder whether she has been keeping up with the changes that Kenya has undergone over the past fifty years (Leave me alone and just let me be, Sunday Standard, 26/01/14). Kenya is not the United States; its Mau Mau war is not the equivalent of the American Revolutionary War; its Preamble is not the battle-hymn that the Declaration of Independence is. Privacy may be enshrined in Article 31, but it is about as inspirational as a citation from an English-Swahili Dictionary.
In the United States, the Bill of Rights are the foundation for ideological battles between scholars steeped in decades of argumentation; Chapter Four, on the other hand, is a wish-list from the civil society industry for which few battles have been fought and fewer of those have been ideological or argumentative, if that. It is why the false narrative of privacy rights is being red-herringed in public discourse; red herring because whom do you know who could credibly argue that even in modern Kenya privacy is understood in the same libertarian way that it is in the United States?
For this reason, we must restate the argument in light of the experience of colonial Kenya and Independent Kenya, and the choices our rulers made for us between 1921 and 2010. The colonial government and its hated administration service were rulers. Jomo Kenyatta and Daniel Toroitich arap Moi were rulers. Kibaki will deny it until the day he is dead and gone, but he was a ruler too. Only Uhuru Kenyatta has a chance to be a leader, perhaps even a statesman. Kenyan rulers decided when Kenya would gain internal self rule; they decided who would form the self-government Kenyans demanded; they decided the form of government Kenyans would have; they decided whether or not to sustain that government or curse it with financial bankruptcy. The Mau Mau may have died in the name of land and freedom but they were not a revolutionary army and their war was not a revolutionary war, no matter how many hagiographical tales we tell about their heroism.
Privacy, the rights of arrested person, the power of the State to search ones home and seize ones property...all these are things that the State gave Kenyans. It is why many refer to government not as an uncountable noun but as a proper noun: Government even today in light of a progressive constitution. One of the clawbacks of the power of Government in light of the progressivism of the Bill of Rights is to be found in the scarcely-studied Article 24 that permits the State, or Government, to limit the application of the Bill of Rights. In contrast to the rest of the Bill of Rights, it is drafted in the weaselly words of a lawyer out to cheat you out of your point-something acre of land. It is proof that Government survives regardless of what the civil society industry wants, or wishes Kenyans would want.
IN Kenya, as a nation and as Republic, the State, and Government, came first; the people were an afterthought. They were an afterthought when the robbers of the Imperial British East Africa Company pushed the natives off their land; when the colonial administration all but enslaved the natives; when successive Independence regimes did everything in their power to sustain Government, whether the people were happy or unhappy. The people suffered; Government prospered.
Perhaps Ms Kilonzo is attempting to rally people to the cause, show them that they now come first and Government should be the afterthought. She seems to live in the Twilight Zone where the rule of law is the foundation of the relationship between the people and Government. She should know better. The rule of law is one of those fictions Kenyans have been sold on which in the darkest recesses of their hearts they know to be snake-oil, a flim-flam, not worth the paper on which it is printed. It is why Kenyans are going along with the sham that is judicial vetting. It is why we are not raising eyebrows at the spectre of the members of the police vetting board sitting pretty while their colleagues on the other side of the table are compelled to attempt to bamboozle their way to job security. We can ape the United States and become properly agitated about "assaults on our privacy" and "unwarranted State surveillance" but we know, deep in our hearts, we don't care. We never did. We probably never will.
No comments:
Post a Comment