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How the law is enslaving Africans
By James
Shikwati
Posted
to the web: 03/12/2008 15:19:15
IT IS not uncommon for friends of Africa to ask people
on the continent to forget the past and forge ahead. "Blaming colonialism
will not help your country develop, focus on the future," they
say.
As much as I may
agree in part with the thesis of 'forget the past,' I am inclined to
remind my brothers and sisters that history is very important for the
prosperity of any country.
Africans inherited both their western-trained leaders and legal instruments
from departing colonialists.
Last week, 60 years after his death, the body of Poland’s General
Wladyslaw Sikorski was exhumed to help determine whether he died in
the hands of assassins.
The Catholic Church once posthumously tried Pope Formosus in what was referred to as the Cadaver Synod. Found unworthy for pontificate; the papal vestments were torn off his remains, three fingers cut and the body thrown into the Tiber River.
Every city in the
developed world, boasts of some historical achievements and failures
that inform its contribution to the society.
Should Africans interrogate the history of the law that governs them?
I am an advocate of the Rule of Law as opposed to the rule of the whims
of man. The law as presently constituted and practiced in Africa is
not designed to further democracy and individual enterprise. It is within
parameters of the law that Africans have been robbed, maimed and killed.
For the last 30
years, the African political class has presided over 70 conflicts that
have sentenced millions to death. A prominent East African cartoonist,
Paul Kelemba (Maddo), aptly captured the scenario in one of his cartoons
that depicted the political class held at ransom by a blood thirsty
"anti-poor" secret society. The truth is that it is the law
that is anti-poor in Africa.
The cartoon depicts shadowy figures in dark glasses that hunt down politicians,
reward them with big houses and limousines and demand that in return,
the politicians must never address the plight of the poor. Is it not
the law that rewards politicians with the power to plunder, mould the
culture of entitlement and exclude the masses from enterprise in return
for political loyalty? Most constitutions and legal systems in Africa
operate on the basis of winner takes it all; wars have been wedged precisely
because the excluded seek a piece of the pie.
Kenya presents a unique case of how the law has been subverted to serve
the interests of the few who wield instruments of power. After elections
in 2007, Kenyans witnessed a dramatic swearing in of the incumbent president
late in the evening in what became a classic civilian coup on the continent.
Whoever was behind the move was well aware that the law as it stands
will pose legal challenges should anyone attempt to unseat a duly sworn
in president.
Clearly, the law was used to deny Kenyans a chance to have their electoral
power determine who their leader ought to be. As per the law, whoever
the Electoral Commission of Kenya declared the winner; such was to be
sworn in as president in spite of arguments to the effect that no one
knew who actually won!
Another clear case of use of the law to muzzle Kenyans is depicted in
the ongoing debate between citizens and their parliamentary representatives
in matters of payment of taxes. Legislators have enacted a law that
prevents them from paying taxes because they (MPs) argue that they are
faced with insecurity and give handouts to their constituents.
Kenyan voters on
the other hand engage in similar acts of philanthropy by supporting
each other in terms of food, school, medical and funeral fees; they
are faced with insecurity and travel those very same bad roads each
weekend to visit their relatives yet the law demands that ordinary Kenyans
pay taxes.
Citizens have no recall clause to get rid of rogue parliamentarians
and president - they are all reminded to follow due process of the law!
(Law abiding citizens must wait for 5 years because the law dictates
that one must suffer the injustices as per the law!).
The most dramatic aspect of citizen's impotence caused by the law was
displayed at the homecoming party for Kenya's Prime Minister Raila Odinga.
It was a shouting competition with each politician literally seeking
to be applauded and to appear to be a friend of the poor.
“Reduce food prices or government takes control of pricing!"
was the resounding chorus. Who should reduce prices? Millers? But millers
argue that maize prices are high and point at the Agriculture Minister
for having increased maize prices to gain popularity among farmers and
maize cartels! Can anyone stem the tide of cartels? Not the law, it
will take generations of court battles! The ordinary citizens were left
dry with a placard in hand that read "Flour Ksh 105; Rent Ksh 2000;
Salary Ksh 4,000; NO WE CANNOT!"
Anyone who watched the political discourse at the Raila party on food
prices must have noticed that the speakers appeared to know someone
(or group of persons) manipulating the prices for maize meal. For some
reason, the so called leaders were unable to give names (because of
the law!) but simply sought to bury themselves in yet another blunder
of asking for government controls on pricing. Note; price controls is
a euphemism for using the law to disenfranchise small traders and those
who are not politically correct.
Growing up in the pre-liberalisation era, Kenyans witnessed days when
essential food commodities would disappear from the shelves simply because
the retailers anticipated an increase in prices by government. It is
one thing to have cheap price controlled commodities that one cannot
access, and another to have cartels in government (and friendly to government
functionaries) simply create artificial scarcity.
It is now 45 years since Kenya 'gained independence' and her legislators
have no remote idea how to feed its 36 million plus people. Instead
of churning out policies and strategies that ought to strengthen the
country's sovereignty, the political leadership has sunk Kenya into
a US$2 billion debt as of September 1, 2008.
The law empowers
Kenyan political leaders to enter into debt on behalf of 36 million
people without having a mechanism of consultation. As if aware of the
fact that the law was created to safeguard prefects of European outposts;
political leaders behave in a manner likely to suggest that they ought
to grab as much as they can while in office since somewhat they believe
that the 'owners' of the country will soon want it back.
This is not only a Kenyan story, it is the story of Africa.
• The law determines who signs mining deals with Western companies; the excluded resort to 'liberation wars' and care less about the collateral damage. Look at the 5.6 million dead in Congo!
• The law enforces property rights of the powerful while trampling on those of the weak.
• The 'owners' of the law literally force governments in Africa to negotiate with those wielding Rocket-Propelled Grenades (RPGs) in order to reach a power sharing agreement that yet again excludes the will of their citizenry.
• The law promotes agricultural control boards that determine whether farmers can uproot unprofitable crops.
• The law curtails free movement of people.
• The law closes the African airspace and
• Slows down setting up of indigenous enterprises.
• The law in Africa exemplifies Frederic Bastiat's assertion that: "The State is that great fiction by which everyone tries to live at the expense of everyone else."
It is clear that Kenyans and by extension Africans must dig into their history and right the wrongs that have been unleashed on them by the law. A total re-examination of the continent's fraudulently founded states ought to be the first step in order to legitimise governance.
Ignoring history serves to perpetuate the robber mentality where the political classes collude with global opportunists to plunder Africa and deny African citizens a chance to engage in productive enterprise.
James Shikwati
is director of the Inter Region Economic Network
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