Consumerisation was a mistake

With the advent of the consumerisation of public services—the treatment of citizens as consumers by the Government—came the establishment of customer-care desks and service charters. These had one profound effect: the development of a new language that erased the notion that citizens have rights as opposed to contractual expectations. Rights are either protected or violated; when they are violated, sometimes the only way to mitigate those violations is by jailing someone. However, all contractual breaches can be mitigated by cash awards.

Consumerising the public services has led to the idea that only those consumer-citizens who meet certain contractual thresholds deserve certain public services or enjoy certain rights or privileges. For example, in the recent past no less a person than the President and CEO of Kenya Government Ltd has suggested that if one fails to register as a voter and fails to vote at an election, one isn't entitle to "question" the Government about anything. Some who have challenged the President's declaration have offered an alternative: if one pays taxes, one has every right to "question" the Government about its acts. Counter-factually, going by the latter argument, if one is not a taxpayer, one has no right to question the Government about anything.

The problem with these propositions is that the Government's operations increasingly begin to reflect the ill-thought provision in the Bill of Rights that states,

(5) In applying any right under Article 43, if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles––
(a) it is the responsibility of the State to show that the resources are not available... (Article 20)

When a customer goes to a shop to purchase something, say bread, he has absolutely no right to the bread being offered for sale by the proprietor. He is one among other consumers and if he happens to go by when the proprietor is out of bread, whether or not he had the cash to pay for the bread, he cannot argue that his right to bread has been violated by the proprietor. The rights in Article 43 are,

(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;
(b) to accessible and adequate housing, and to reasonable standards of sanitation;
(c) to be free from hunger, and to have adequate food of acceptable quality;
(d) to clean and safe water in adequate quantities;
(e) to social security; and
(f) to education.

As a consumer-citizen, your rights will be protected so long as Government Ltd has the resources to implement the right, and if Government Ltd can demonstrate to, a court for example, that it has inadequate resources to implement the right, you, the consumer-citizen, will be left to the mercy of the free market and the profit motive. Today is the sixty-eighth day that the public health services have been crippled by a doctors' strike. The Government has argued that it lacks the resources to meet the demands of the striking doctors and, by extension, it lacks the resources to implement the citizens' right to the highest attainable standard of health, which includes the right to health care services.

I believe that we have a fundamentally flawed understanding of what a Government is, especially a Kenyan Government, and what it can and cannot do. The Government is not a commercial entity even though it has a corporate identity, that is, it is a legal person capable of suing and being sued, buying and holding property, entering into contracts, and doing all those things that a corporate entity is capable of doing. Because it is not a commercial entity, it is not and it should not be guided by the profit margin.

The Government has a mandate to levy and collect all sorts of taxes and an obligation to spend that revenue in the most prudent manner possible. But it shouldn't tax-and-spend with the citizens in mind as consumers of services,  but as people who have rights guaranteed by the Constitution and protected by the State through its institutions, including the Government. That, at least, is the theory.

In 2010, in the run-up to the constitutional referendum, many were distracted by side-shows, like Kadhis' courts, abortion, the right to strike by members of the disciplined services, and presidential versus parliamentary government systems. As a result, the relationship between the Government and the people, was defined in especially perverse ways, one of which is an obligation on all adult Kenyans to pay taxes but to retain or have limited rights in how those taxes would be spent. Hence, the current impasse: doctors have demanded a comprehensive policy on health services which would require substantial sums to be spent in implementing but the Government, seen as a caricature of a for-profit organisation, argues that it lacks the resources to meet the doctors' demands.

The consumerisation of public services is Mwai Kibaki's greatest legacy as President. If his government hadn't persuaded even human rights' organisations of this subtle change, it is possible that the Bill of Rights would not have taken on the burden of enshrining rights that could not possibly be protected (or implemented) by a Government that was recovering from forty years of decrepit political thinking, whose revenue base was still too narrow (because of its focus on formal employment and manufacturing) and which required greater political engineering to encourage greater civic participation by citizens. We are all consumers now; shortages are the norm in inefficient and ineffective markets.