The Courage To Be Free

"Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety," said Benjamin Franklin. The arrest and nine-hour detention of Brazilian David Miranda at London's Heathrow airport has today re-ignited debate over the erosion of civil liberties in the war against terror. Miranda's treatment was widely seen as a vindictive attempt to intimidate his partner, and Guardian reporter, Glen Greenwald, for publishing information on US government spying on both its citizens and people across the world.

The source of Greewald's information was Edward Snowden, whom the West has turned into a fugitive, following in the footsteps of Wikipedia's Julian Assange, still holed up in the Ecuadorian embassy in London, and Chelsea Manning, who was recently sentenced to 35 yeas imprisonment for being the providing Wikileaks with thousands of secret US diplomatic cables. The scale of this unprecedented attack on civil liberties supposedly guaranteed in the West was recently underlined by reports of UK government goons overseeing the destruction of hard drives containing information relating to the Snowden leaks in the Guardian's basement.  "You've had your debate. There's no need to write any more," one said.

As noted by Agnes Callamard, Executive Director of ARTICLE 19, an international human rights organisation that defends freedom of expression, Miranda's arrest has also highlighted the fact that odious so-called "anti-terror" legislation is actually being used, not to target terrorists, but against against activists and journalists who dare to question and expose the "all-encompassing security response to terrorism and the human rights violations that result from it".

Any of this sound familiar?

In Kenya, the diminution of fundamental freedoms in the name of an elusive "peace" or security has been a fact of life for a long time now. By the time the election season rolled around, we had gotten used to the idea of trading innocent lives and the rights to a fair trial for the illusion of security. We cheered whenever the police announced their latest kills. "Cops gun down suspected thugs in shootout," was a regular headline. "Suspected" became more than a word. It became a means to strip people of their humanity. So few raised their voices when suspected thugs were shot and suspected witches were burned.

(It is worth noting, however, that in the hallowed halls of the powerful, "suspected" didn't have a similar connotations. For example, when calls grew for senior officials implicated in theft to resign, the government invented a new taxonomy where they could "step aside" and continue earning their obscene wages without the bother of working for them.)

In the run up to the election and in the time since, the dread of a 2007/8-like post-election conflagration has created an atmosphere where the public is increasingly willing to acquiesce to, if not support, the silencing of voices challenging official conduct and narratives. Like the Guardian in the UK, our media have become complicit in this silencing, destroying journalism standards under the watchful eye of the government's security apparatus. Editors have allowed the news to be lobotomised. Journalists do little other than parrot the official line and are more concerned with their celebrity status than in an informed audience.

The period following the election has demonstrated that, like in the West, these silences are not erected to protect the public, but rather to protect the elite, who have used the period to line their pockets with public cash, from prying eyes and uncomfortable questions. We have seen a bill in Parliament to "improve" the Truth Justice and Reconciliation Commission's report by deleting their names from it, the rehabilitation of Daniel arap Moi from erstwhile kleptocratic and brutal dictator, to lovable elder statesman as well as the revival of Nyayo-era intimidation by officials openly issuing warnings to those "fomenting disaffection against the government."

In this atmosphere, organised civil society has been effectively silenced. Calls for reform of the electoral system have been branded as the resurrection of a dangerous electoral politics. Human and political rights activists with a distinguished history of standing up for Kenyans' freedom and dignity are today designated as Western stooges and regularly receive death threats. With no public outcry, the government has passed a law allowing it to register and regulate the operation of civil society organisations. It has similarly drafted a bill to similarly muzzle the compliant press, again facing little public opposition.

In Kenya, as in other parts of the globe, there is an effort to convince the public that fundamental freedoms need to be curtailed for the sake of security. "Security, rather than human rights, has emerged as the algorithm de rigueur," says Callamard. This argument must be resisted for it seeks to mask the real causes of conflict and precludes effective remedy to both deliver justice and enhance security. The actions carried out under the cover of darkness or the cloak of secrecy, actions claimed to be necessary for national security, have time and again been shown to be neither necessary nor in the national interest. Revelations such as those from Wikileaks have demonstrated the folly of putting our faith in official pronouncements or in public professions of commitment to protection of fundamental freedoms.

We must instead insist on the means to monitor and punish any government malfeasance. We must insist on a press that is truly free and that takes its duty to inform, rather than entertain, the nation seriously. We must also insist that the government keeps its dirty hands off civil society and leaves them be to question and interrogate official conduct and policy. We must insist on a better electoral system and refuse to be bought off by talk of building the nation, economic growth and free maternity and laptops.

We must build up the courage to be free and come to understand that it is we, the citizenry, who are the ultimate guarantors of accountability in government. If we shrink back out of fear, if we sacrifice "liberty for a little temporary safety" then we not only won't deserve, we also won't achieve either freedom or security.

Church, Jury and Executioner

The nominations of Dr. Willy Mutunga as Chief Justice and Nancy Barasa as his deputy have caused considerable disquiet within the religious community. This week, as Parliament’s Constitution Implementation Oversight Committee (CIOC) started receiving public submissions on the nominations, along with that of Keriako Tobiko for Director of Public Prosecutions, Church representatives were not shy about their reservations.

Bishop Martin Oginde of the Nairobi Pentecostal Church said that though Dr Mutunga was a gentleman, he would be uncomfortable with a Chief Justice who wears a stud. He was appalled by the thought of, as he colourfully put it, “our young men becoming young women” and the prospect of “the highest person in our judicial system expressing themselves in the same way,” by wearing an earring. Mr Peter Waiyaki of the Christian Association took issue with Dr Mutunga’s and Ms Barasa’s support for abortion and same sex relations.

Father Ferdinand Lugonzo, who represented the Kenya Episcopal Conference, perhaps best summarised the church’s position: “We are … raising concerns about the family values that Dr Willy Mutunga stands for. We observed here, that one who has a philosophy that promotes gays and lesbians, aggressive population control, commercial sex work... We emphasize that family principles are not issues of private domain. Marriage and family are ordained by God”

The church’s stand betrays a fundamental misunderstanding about the nature and role of the state in a free and just society. To understand why this is so, we must examine the rationale for government and individual rights.

In their natural condition, all men, just like animals, are absolutely free to do as they wish, guided only by their instincts and conscience. Natural man is a law unto himself, born free and acting free. Sadly the law of the jungle respects only might and does not necessarily foster security or justice. The lamb has no forum to argue its right to life against a hungry lion. In similar manner, the strong, unrestricted by any outside agency, will tend to oppress the weak; the powerful will take from the powerless.

However, by acting together in civil society and binding ourselves to its laws, we pass from the natural state to a civil state, substituting justice for instinct and right for might. Natural independence is given up in favour of civil liberty, the former being guaranteed only by the individual’s might while the latter is guaranteed by the collective power of the community. This arrangement, what 18th century French philosopher Jean Jacques Rousseau referred to as “The Social Contract”, substitutes legal equality for natural inequalities in strength and intelligence evident among men.

We become part of a corporate body politic, a public person made up of the unification of many persons, called the state. The individuals within it are individually known as citizens and they all share equally in the sovereign power and are equally subject to its laws. The state itself is therefore formed for the common good as defined by the general will of the governed. Since the natural, some might say God-given, rights have been relinquished in favour of civil rights, the state now draws its legitimacy not from a higher being, but from its subjects, the people. It is, by definition, secular.

From the above, it is clear that Father Lugonzo is fundamentally wrong when he declares that “family principles are not issues of private domain.” Marriage and family may be ordained by God, but the state does not exist to serve Him. And even when one resorts to the dictum vox populi, vox dei – the voice of the people is the voice of God – there is no relief from having to allow for individual choices that may not be to the liking of the majority. The late US Supreme Court Justice Harry Blackmun said: "A necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices” adding that “we should be especially sensitive to the rights of those whose choices upset the majority”. In this, he was echoing a famous argument by another late Supreme Court Justice Oliver Wendell Holmes Jr. who stated: "If there is any principle … that more imperatively calls for attachment than any other it is the principle of free thought -- not free thought for those who agree with us but freedom for the thought that we hate."

The common good being common to all, there is no question of sacrificing one person or group in the interest of another. Rather, since the state is the result of a negotiation by different interests, it is the common points of agreement that constitute common good. The contemporary ethicist, John Rawls, defines it as "certain general conditions that are...equally to everyone's advantage". Common good is thus a confluence of interests, not of moral values or traditions. The latter are important only in as much as they influence an individual’s sense of where his interests lie. At the state level, however, the discussion is only informed by interests. Far from enforcing a moral code, the only thing the state is committed to is the pursuit of common interests through the creation of social systems, institutions, and environments which work in a manner that benefits all persons without elevating the interests of one group over those of another.

The clergy should, therefore, not be allowed to impose its views on the rest of society without, at the very least, being required to show how the common interest is otherwise injured. As John Stuart Mill stated in his 1859 essay, On Liberty: "The only purpose for which power can be rightly exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his own mind and body, the individual is sovereign." We cannot punish or deny opportunities to individuals for making choices, when those choices have no perceptible harm on the rest of us, without demolishing the façade of justice and individual freedom.

The Necessary Enemy of The People

Next week's issue of The EastAfrican will feature a glowing profile of Dr. Willy Mutunga and will be full of praise for the decision by the Judicial Service Commission to nominate him for the post of Chief Justice with Nancy Baraza as his deputy. With both the President and Prime Minister endorsing the two nominees, and with opposition from William Ruto's camp seemingly crumbling, Parliamentary approval appears to be a foregone conclusion. In a few weeks time, all things being constant, Dr. Mutunga will take office and change from being the champion of Kenyans' rights to being an instrument for their suppression.

Now, I have absolutely no reason to think that that Dr. Mutunga is anything other than what the EastAfrican piece will say he is: a fearless advocate for social justice. I have no doubt that he is as committed to uplifting the lives of ordinary Kenyans as anyone can be. My reservations have nothing to do with either his qualifications or his integrity. They, however, have everything to do with the nature of power and the propensity of my countrymen to ignore the lessons of history.

Power corrupts. A simple yet unfailingly true phrase. Kenyan's history is replete with fallen icons, former giants of matchless courage and integrity whose reputations did not survive a sojourn into government. In this pantheon you will find the likes of Mwai Kibaki, Raila Odinga, Martha Karua, Kivutha Kibwana, Anyang' Nyongo, Wangari Maathai, Kiraitu Murungi and Mukhisa Kitui, just to name a few of the most recent examples. By the time they were raptured into government, many of these had fought the good fight, risked life and limb, and endured torture, incarceration, beatings and tear gas, all in the name of upholding the rights of ordinary Kenyans. They inspired us, and brought the despotic government of Daniel Arap Moi to its knees, by the sheer force of their beliefs.

Yet all of them eventually turned into the very oppressors they were once fighting after we put them in power. Which brings me to my second point: Kenyans unrelenting and, frankly, psychotic sense of optimism. Despite all evidence to the contrary, we still persist in the illusion that if we just elect or appoint a nice guy, all will be well and we can look forward to living out the rest of our lives in comfort and luxury. We allow our institutions to rot while we wait for the promised Messiah, our very own Mandela or Ghandhi.

"Eternal vigilance is the price of liberty" is a line familiar to most. What is perhaps less well known are the words that Wendell Phillips uttered following these:"The hand entrusted with power becomes, either from human depravity or esprit de corps, the necessary enemy of the people. Only by continual oversight can the democrat in office be prevented from hardening into a despot." Phillips was only too well aware that the intrinsic goodness of the powerful could not be the ultimate guarantor of liberties. Similarly Kenyans should put their faith in their own ability to monitor and control the people in office, and not in candidates' records and words.

Now, I am not saying that qualifications, experience and integrity are unimportant. I hold them to be vital. However, like Phillips, I know they are just proof that the man (or woman) can do the job. They are no guarantee that he (or she) will actually do it. Past performance is fickle surety for future returns. Only "continual oversight" will deliver that and it will require that we treat all office bearers, Dr. Mutunga included, as "the necessary enemy of the people." I hope all the good folks applauding our next chief justice will keep this in mind.