Monday, March 27, 2017

The law, Sir, is not the solution you think it is

State officers enjoy certain privileges that the rest of the public service or even the public do not enjoy. One of the most obvious is that their safety is catered for at a level that few private individuals or public officers ever will. Almost all State officers have an armed bodyguard made up of serving officers of the Kenya Police Force and the Administration Police Force. Many of them enjoy the services of armed guards at their various official homes, both in Nairobi and out of Nairobi in the boonies. To my mind, because of this privilege, few State officers appreciate the palpable state of insecurity and unsafety that many Kenyans live in. If we insist that State officers should be compelled, by law, to only use public health facilities, will it lead to an improvement of service for the rest of the public?

I looked at this analogy after a Twitter exchange between Patrick Gathara and David Ndii. Mr Gathara supports Boniface Mwangi's proposal that the law should compel State officers and their families to only use public health and education facilities. Mr Ndii cautions that the outcomes of such a law might not be what its proposers expect. It is more likely that State officers will either establish or engineer the establishment of elite facilities to which only them or their families will have access.

The instinct to legislate away our problems has created more white elephants than solutions. Take the fight against corruption as an example. From the day we established the Kenya Anti-Corruption Agency under John Harun Mwau, we have expended hundreds of billions of shillings passing laws, appointing anti-corruption czars and their staff, and conducting investigations and yet the problem has not only not been solved, it has mestastacised and infected even the private, civil society and faith-based sectors. the solution shouldn't just have been a law to control corruption or the establishment of an elaborate bureaucratic machinery to police it. It should have been about a complete culture change among the people, the people they elect to lead or govern and the public service they appoint to implement public policies and laws. We got the law and the bureaucracy; we never even started on the culture.

The same is almost certainly to be the outcome of a law compelling State officers and their families to use, for example, the public healthcare system. The same way we have a system of "national" schools which still privileges "legacy national schools" over recently established or upgraded national schools, is the same way we will have an elite public healthcare system to which only the State officers will have access. We have yet to challenge the culture that privileges State officers over the rest of the public service and the public. We accept it as the privilege expected to be enjoyed by these men and women as a consequence of being elected or appointed to high office.

This culture is starkly illustrated by the desire of many Kenyans to be elected or appointed to high office on order for them to effectively serve their people, or so many of them claim, including those calling for compelling State officers to use public facilities as a strategy for gaining votes. Whenever someone declares that their desire is to help the people, that desire almost always culminates in a campaign for elective office or an appointment to high office as a principal secretary or head of a constitutional commission or parastatal. High office is associated with power, power with privilege, privilege as the spoils of the entire campaign.

I am not saying that Mr Mwangi or Mr Gathara don't believe in their proposal. They probably do. I am saying that they are likely blind to outcomes that they will not contemplate. Their blind faith that this kind of law will be implemented in the manner that they want it to be implemented and will have the outcome they want it to have is naive. In the history of law-making, no law has ever done exactly what it promised to do in the manner it was intended to. Every single law has had unintended and unexpected consequences. Mr Mwangi's legislative proposal will be no different if it is ever enacted into law. That he hasn't publicly acknowledged this is instructive.

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