Tuesday, October 28, 2014

Bovine, porcine legislating.

Whatever else a normal person wants, they do not want to witness the making of sausages - or legislation. The former is just stomach-turning processing of different bits and pieces that may or may not have bovine or porcine. The latter is stomach-churning but for very different reasons, even though the words "bovine" and "porcine" come readily to the mind of a witness to law-making.

Those who have an indulgent boss like mine is will have experienced the utter shock of having their auditory senses assailed in the early, coffee-fuelled morning by portentous pontifications by our makers and shapers of opinions. This very morning, as I struggled to force my mind to adjust to the intricate machinery of the Value Added Tax Act of 2013, I was briefly jolted awake by a rather forceful justification for "heavy penalties" in a proposed access to information Bill that is yet to begin the arduous journey to enactment. Apparently, the International Commission of Jurists (Kenya Chapter) and some of its partners in the civil society complex have been promoting the enactment of such a law for a long, long time and they feel that, with the incorporation of an access-to-information clause in the Bill of Rights, they are one step closer to their dream.

I will not debate the merits, or otherwise, of an access-to-information law; I will wait patiently for the law to be enacted before I weigh in with totally unwarranted assessments. However, the premise that for a law to be obeyed or for a law to be effective it must prescribe "heavy penalties" for those who would contravene its provisions is a premise that must be challenged. The five years since the promulgation of the Constitution in 2010 has seen a flurry of law-making. One is hard-pressed to find a new law that does not have an Offences-and-Penalties section that prescribes stiff fines or imprisonment or both for contravening provisions of the said new law. This is sheer lunacy. Looking at the armed robbery and murder statistics in Kenya, it is clear that the harsh penalty imposed for both crimes has had little deterrent effect on armed robberies and murders in Kenya.

How will an access-to-information law benefit if it is designed to punish public officers who are reluctant to participate in exposing long-held secrets of the state? The United States and France have a long history of defying kings and emperors, as does England - in its own fashion. One of the tools available to these nations was the freedom of the press to broadcast far and wide what was being done in their names by their elected representatives, whether they be in the king's court, the emperor's court, the presidential mansion or the parliaments, congresses or chambers of deputies. The more the state tried to hide, the more viciously the free press fought to expose the government and its agents. The British suffered the Profumo Affair even when it still retained the power of the "D-Notice" and it took the Supreme Court of the United States to slap down the US federal government over the Pentagon Papers. Kenya's brief dalliance with whistle-blowing during the Goldenberg Affair was cut short with the rather Stalinist invasion of the premises of the Standard Media Group, the seizure of its news equipment and the dead-of-night burning of newspapers.

Kenya is not England, France or the United States. Threatening public officers, even those who have no truck with the Stalinist tendencies of their seniors, with hefty fines and long jail terms is not the way to get them to co-operate in lifting the veil on the State's long-held secrets. What you want is to persuade them. What you want is for them to volunteer information, make it readily accessible, and make it accessible to all at a reasonable cost - or no cost at all. Instead, the International Commission of Jurists and its partners have thrown down a gauntlet and challenged the State and its agents to resist the imposition of an access-to-information law, Constitutional provisions notwithstanding.

The experience with the Article 35 Bill is symptomatic of all laws made since 2010, indeed all laws made in Kenya. This obsession with penalties makes all Kenyans potential offenders. One of its less salubrious effects is that it makes  mockery of the law because there are too many laws to enforce effectively. People have no respect for laws or law-enforcers because they instinctively know that if all the penalty clauses were to be enforced and the maximum penalties imposed on offenders, the courts would be filled with so many petty offenders that the machinery of the administration of justice would not only grind to a halt, it would break down irreparably. Before parliamentarians and the law-making semi-literates who advise them add new offences to the hundreds of thousands already on our books, it is time they took a step back and reconsidered this penchant for fines and six-month prison sentences.

No comments: