It's fascinating to watch the libertarians and bill of rights zealots twisting themselves in knots as they argue that political contestation must be tied to some reasonable and rational objective. In their world, the bill of rights does not just serve the purpose of recognising, affirming, protecting and enjoying rights and fundamental freedoms, but in order for the bill of rights to make sense, the exercise of those rights or fundamental freedoms can only make sense if there's a rationale and logical objective. In short, for example, one cannot just pick "demonstration" as the bit of Article 37 of the Constitution of Kenya as the right to exercise, but the exercise of that right must be, and only be, to present a petition to a public authority and that the petition must serve some rational and logical purpose. You can't have a bullshit reason to hold a political demonstration.
Obviously I think that position is, well, bullshit.
You cannot have a liberal constitutional democracy if the limitations on the bill of rights are limitations tied to neo-liberal and capitalist philosophies of utility, profit and economic advancement. The constitution, as someone rightfully argued, serves the people; it is not the people who serve the constitution.
What Raila Odinga attempted on the 20th March was to exercise, as fully as possible, his rights under Article 37. Sure, he "declared" the 20th March to be a public holiday. Only a moron thinks that his declaration was [a] the unauthorised exercise of State authority or [b] an unlawful attempt to establish a government otherwise than in compliance with the Constitution of Kenya. Sensible Kenyans understood that what he was doing was pressing his demands in the language that resonated with the tens of thousands of Kenyans who agree with him. Also, no one can ignore the fact that he ignored the risks associated with his maandamano; whenever he calls people out onto the streets, some of them engage in violence unprovoked. Be that as it may, Mr Odinga and the politicians who joined in his calls for maandamano had every right to exercise his rights under Article 37 even if his demands are utter bullshit and serve no reasonable or logical purpose.
We are repeatedly reminded by a highly-motivated segment of the political and economic classes that "Kenya is a capitalist society" and that political demonstrations, such as those of the 20th March, pose a risk to livelihoods and economic activity and, therefore, they must be tempered. One lawyer had the temerity to suggest that political demonstrations should last, at most, one hour and then the demonstrators should go do something meaningful, like go to work. This is the kind of bullshit that prevents Kenya from doing the work needed to build a constitutional culture.
Obviously I am not a fan of that kind of bullshit.
I don't know if Mr Odinga is on the right side of history and I don't care. I care that flimsy neo-liberal rubbish forms such a firm foundation for the watering down of the letter and spirit of the bill of rights. I care that as a consequence of such subversive reasoning, State officers see nothing wrong in actively preventing law-abiding Kenyans from exercising their constitutional rights, refuse to actively take steps to protect Kenyans' fundamental freedoms, and, instead, provoke violence as part of their strategy for winning (and losing) political arguments.
In my opinion, Mr Odinga, since at least The Handshake, continues to demonstrate why he should bow out of the political limelight. Not because his current political campaign lies on a foundation of bullshit. It does, but I don't care. Not because his hardcore supporters are blind to all reason. They are, but I don't care. Not because his core constituency is a pale shadow of what it was in 2002/2003. It is, but I don't care. It is because he is a man out of time, both with the people he would wish to rule and the ideas he should have to rule effectively. MS-DOS in a world of AI, a rotary telephone in a world of VoIP.
But no matter how over-the-hill I believe him to be, so long as he does not call for the violent overthrow of the Constitution, the State or the government, I don't care that he wants to bring his supporters to KICC every Monday and Thursday so that they can take a traffic-snarling stroll to State House. He can do that every single day for the week to his heart's content. Article 37, which a majority of adult Kenyans adopted at a referendum, affords him that right. The only, and best, way to beat Mr Odinga at his game, is to marshal the political arguments that renders his nugatory. Only good ideas can beat bad ones. Not police batons, teargas and lethal 7.62mm rifle bullets.
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