If we are lucky

There are few of us who are truly privileged to have almost all, if not all, of our needs - and desires - catered for. More often than not, we always want for something - something that is just out of our reach, its scent wafting into our nostrils, enflaming our passions and, when we are careless, driving us mad with desire. It is, therefore, a test of our forbearance that for the most part, we keep our passionate desires at bay, denying ourselves the freedom that comes with the pursuit unrestrained hedonism. We learn, even when the spigots of the national treasury are thrown wide open, to temper how we enjoy the gifts that we receive.

This is not the case with those who have learnt nothing of the fatalities arising out of gluttony. Their baser instincts are so used to being satiated at the snap of their fingers that when the boom falls, the devastation it leaves behind is truly pitiable. The catastrophe is much worse when it befalls the men and women charged to govern the country. If you haven't been paying attention, in the past week, the High Court has lowered a devastating boom on the men and women top the edifice we call government. The High Court has denied them that which their political hearts desire above all else: the supine acquiescence of their subjects. The proof of the devastation is in the confused and frenzied pillar-to-post flitting by their acolytes as they attempt to set back the clock to the days when the presidential snap of the fingers led to the dismissal of bad judges.

I am most amused by the spectral whispering by their disciples in the so-called free press: editors and political journalists have spent the past week prophesying deadly outcomes if the judgment is allowed to stand. They have also amplified the voices of clever, though shortsighted, members of the Kenyan Bar who continue to make increasingly shrill observations about constitutional crises that only they can see. Few of these highly motivated sirens have bothered to take a step back and ask whether or not their sense of entitlement - theirs and those of their patrons - were ever meant to be satisfied in the first place.

The merits, or otherwise, of the appeal are neither here nor there. The highly paid legal eagles for each side of the argument will plead their case before senior judges and the best argument - or the best political argument - will prevail and the show will move on to the Supreme Court. But the question as to whether the unhappy, super-entitled men and women who disagree with the uppity-ness of the lower classes should continue to be indulged remains unanswered. The temerity with which the judges of the High Court have recklessly refused to indulge the self-centred and entitled whims of the Kenyan aristocracy has been received with shock and everything the aristocracy's loyal footsoldiers have done has represented the rage that pervades that aristocracy's psyche and salons. If the judgment is not reversed, it may very well lead to a class psychosis that shall be terrible to behold - or experience.

Kenya is yet to reckon with the existence of its aristocracy represented by its members in the political executive, the legislatures, the judiciary, business and academia and the institutions of religion that continue to offer spiritual and social solace to the lower classes. The judgment, in my opinion, is the first serious attempt to push back at the demands of the self-entitled classes. It builds on the tentative steps taken by the Chief Justice in 2017 and 2020 - the vitiating of a presidential election and the demand that parliament should be dissolved for subverting the will of the people - and, if we are lucky, the judgment might inspire us to put our foot down against the demands of the ministers of faith and the avarice of the business classes. If we are lucky.

They are called lies

The fundamental question that arises is how we ought to regulate fake news without limiting free speech outside the provisions of the Constitution. In an electioneering period, free political speech is critical. Should we even think about regulating fake news? Who even decides what fake news is and what it is not? - Mugambi Laibuta (The Fake News Pandemic)

"Fake news" is a handy euphemism for "lies". Once you make that conceptual link, it becomes apparent that it is here to stay. Humans have lied for as long as humans have had speech. Humans will continue to lie so long as lying confers an advantage of one over another. Governments lie to other governments. Governments lie to their citizens. Government officials lie to each other as they lie to civilians. It is not a pandemic; it is a design feature of humanity.

In answer to Mr Mugambi's question, no, we shouldn't think about regulating fake news aka lying except in a very narrow sense. Perjured testimony in court should be punished, for instance. Lying on governmental documents - tax returns, say - should attract stiff penalties. Lies by one person about another that cause harm should be the subject of private litigation, not criminal prosecution. It is not the place of Government to say whether or not lies between private parties are good or bad. The proponents of criminal defamation should, instead, be champions of the "I'll see you in court" culture. Suits for damages should determine the price one must pay for lying about someone else.

Mr Mugambi concludes by saying, "While there may be tools available to combat fake news, they are not widely deployed in Kenya. Perhaps we should focus on the effects of the fake news and not the contents of the fake news?" As a child, the consequences of lying were well-known. While it was not uncommon for adults to come to fisticuffs over lies told of or about them, the more socially-acceptable tools for dealing with liars included ostracisation. It was a shameful thing to be shunned for lying. Social institutions - faith and academic institutions, places of work, social clubs and peer group organisations, and the like - played a vital role in dealing with liars and mitigating the effects of their lies. Hard as it may be to believe, even political parties had processes for weeding out flagrant and egregious liars.

But today, all these social institutions accept lying from their most prominent members. I'm a member of the Law Society of Kenya. An inactive one, but that is neither here nor there. A prominent member of my Society lied about the source of an article he wrote for our journal. He lied when he was found out. He lied when he was asked to properly attribute the source of the contents of the article. He kept on lying unto the moment he was forced by a court of law to acknowledge his lie. What I found distasteful is that he did not face any sanctions from the Society. He remains a member in good standing of our professional association. He continues to appear in public without the shame of his lying hanging over him. Besides the attribution he was forced to make by the court, he has not faced any social or professional consequences for his lying. And if it hadn't been for the aggrieved party, our journal, which failed to even notice the blatant academic thieving he had engaged in, would have happily continued to celebrate him as a valued contributor.

This kind of social acceptance of lying is now prevalent in all spheres. There's a minister of faith who has lied repeatedly about a fatal road traffic accident he caused due to his reckless and dangerous driving. The pews in his church building continued to be filled until the day freedom of association was severely restricted on account of the Covid-19 pandemic. There is a senior government official who has lied about a harmful policy his ministry is pursuing that will lead to millions of Kenyan children being offered extremely substandard education. He is still in office. A senior member of the Cabinet promised to publish the contracts of a highly controversial public infrastructure works. Three years later, the contracts remain hidden behind a veil of secrecy.

It is impossible to address the consequences of lying when every social institution that can do something about liars is infiltrated and run by liars. What we should do is empower individuals as much as possible to make it easier for them to seek damages for lies that cause them harm. What Government should do is punish people who lie in official documents - tax returns, for example - or lie in official governmental proceedings - such as perjury in court. What we must also do, though I don't know if it can be done, is to restore social institutions to perform the tasks they used to perform with regards to liars. For example, faith organisations should not give liars in their midst platforms to spread their lies. Professional associations should revoke professional titles and rewards they have conferred on liars in their midst. But most of all, we should call "fake news" what it is: LIES. Properly naming the thing is the first step to dealing with the thing.