Wednesday, March 09, 2016

Why Ezekiel Mutua is wrong

The law is not made for the crooks. The law is made to constrain the government, its officers and its agencies. It is that simple. It is so simple that its salience escapes the men charged with interpreting, enforcing and applying the law. This includes the officers of Government who have arrogated unto themselves the power to eradicate immorality from among the people.

Kenya has a Bill of Rights in its constitution, a Bill of Rights that requires the most elaborate maneuvers to amend it. It is a Bill designed to frustrate Government whenever its instincts get the better of it. Article 24 claws back some of the Bill of Rights' gains, but only slightly, and only an understanding of what limitations are permitted by the constitution will persuade the willfully ignorant that the law constrains and restrains Government, and protects the people from their Government first, and their enemies second.

In this regard, before Government, its agencies or its officers act to address an attack on the moral fabric of this nation, there must be a firm statutory or constitutional foundation to act. It is not enough to draw a tangential line between a perceived threat and ones mandate; the link must be crystal clear. Claims of "cross-jurisdictional responsibilities" will only work for the ignorant and the sycophant; for the skeptical among us, proof of such cross-jurisdictional responsibilities must be adduced to our satisfaction.

The people are usually at the greatest risk of having their rights violated by their government when their government purports to determine what is moral and what is not. It always starts with pornography and by the time they are done, people are being jailed for imagining the death of the president and charged with treason (the enforcers of our Penal Code are very familiar with this kind of reasoning). But in-between the beginning and the end, many suffer because of an overzealous and wrongful interpretation and application of the law, by an unrestrained and unconstrained government that lacks legitimacy or a popular mandate, that governs through fear rather than through the creation of opportunities for one and all, and that benefits an elite few at the expense of the many.

Control of morality usually entails the control of access to information. This is a tall order in the twenty-first century but as the People's Republic of China and the Democratic People's Republic of Korea have demonstrated, it is quite doable. What is not immoral will be declared seditious and possession of either will land one in jail or get one executed for being an enemy of the state. Kenya, however, even with the quisling Fourth Estate's owners, has a remarkably difficult information environment to control. 

Unless the Government wants Vodafone to divest from Safaricom and Airtel to move out of Kenya entirely, or Jamii Telecom to halt its impressive nationwide expansion, thereby depriving the National Treasury of billions in national revenue, the likes of Ezekiel Mutua and his acolyte will have to make peace with the sad news that they are an anachronism in the Information Age. We have come a long way down the Information Superhighway for Mr Mutua and his fellow travellers to halt our progress, and tilting-at-windmills strategies such as "banning" Project X house parties or attempting to bully Google into removing "offensive" content from YouTube only serves to ridicule the Government, its agencies and, especially, its officers.

Mr Mutua seems to believe that his job is to go after pornographers, instead of restraining his officers from harassing innocent users of information technology or technology companies plying their trade in Kenya. It is a belief that pervades the firmament of Government. It is a wrongheaded belief. It is this belief that constantly stymies our attempts at faster economic growth; we are hounded and harassed as we attempt to sell our products in highly competitive markets by mandarins who see themselves as policemen first and always, not as makers of policy or enablers of entrepreneurship. Mr Mutua could have used the Films and Stage Plays Act and the relevant provisions of the Kenya Information and Communications Act to expand the production and distribution of high quality Kenyan films and stage plays. Sadly, unimaginative as he is, this is not something that is likely to happen today or in the near future so long as he is obsessed with the moral fabric of Kenya.

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