Business Class: Investment and the rule of law

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Dear Mr. Masiyiwa,
I AM writing this letter to you in appreciation of your article entitled: “Investment and the Rule of law” that was published on your Facebook thread and republished on the website in which you eloquently and simplistically dealt with the complex subject of how best economic freedom can be secured.
It has been argued by many that economic justice and prosperity can best be secured by a developmental and thinking state; and its actors playing an active role in the intermediation process instead of a market system.
Africa’s past has regrettably created a psychological impression that state actors possess all the solutions that can best deliver the promise of a safe and happy life.
It is always the case that knowledge that is not shared is of little value. By taking your time to share your Kenyan experiences in order to drive home the point that investment is a friend of the rule of law, it becomes easier for many to begin to appreciate that the elephant in the room standing against progress may very well be the people who have a tendency to point fingers and issue fatwas.
It is often convenient to forget that state power is derivative in nature and its fountain is the very people who are daily threatened by its exercise yet remain helpless in defending themselves when such borrowed power is abused in their name. The propensity to use state power to bolster negotiating positions is not unique to Africa.
Our understanding of the true purpose and meaning of life is often blurred by not only the past, but ignorance about the causal link between respect for the rule of law, human life and peoples’ property.
Indeed, your experience starting with your fellow shareholder and the escalation of the dispute to incorporate state actors in what should have been limited to the shareholders is typical, and many of us relate to it.
The manner in which a commercial dispute was transformed into a public interest one goes a long way towards exposing a predatory human nature that can only be contained if there exists checks and balances in the system.
If Kenya had not developed a culture that can limit the abuse of power, the Minister’s word would have been final with real and significant legal and financial consequences.Advertisement

It is always the case that even in constitutional states, members of the judiciary are appointed by the executive yet after appointment, the constitution compels the judiciary to act in an independent, impartial and detached manner.
The temptation always exists for the judiciary to play second fiddle to the executive yet in your example; it is the case that the judiciary was able to step up to the plate.
The concept of the rule of law and its importance in commerce was part and parcel of the colonial eco-system and as such unpacking its true meaning and relevance especially in the case of black actors necessarily requires caution.
The link between the rule of law and property is a direct and consequential one. For property holders, the rule of law acquires critical importance. However, for a person with nothing to lose, the rule of law is not that important.
In the case of Zimbabwe’s land reform program, it is the case that the disposed farmers had no choice but to appeal against what they considered to be unconstitutional acts on the basis of the law yet the law was used to entrench a new idea that retrospective application of the law is permissible and justifiable.
However, when calls have been made and the link between sanctions removal and the restoration of the rule of law established, persuasive arguments have been proffered that the land in question was acquired through non-market forces and, therefore, the rule of law is irrelevant in reversing that which was created by force.
But what would be the purpose of work if the law is incapable of protecting its fruits? Indeed, it is and has always been the argument of property owners that they did not acquire such assets through corrupt means and, therefore, at the very least, the rule of law in the words of Aristotle is far much better than the rule of man.
By adding your voice to this central universal and age-old truth that the arc of the moral universe always bends towards justice, it is my sincere hope that we can, as individuals and collectively, build a bank of experiences that shows the vitality and critical importance of limiting the predatory nature of man.
It is only when we put the experiences in one box that we can begin to put in place disincentives for misbehaviour. Human beings, if given an opportunity, will always misbehave.
In addition, humanity is perishable to the extent that no one can cheat death but more importantly, human beings are inherently prejudiced and subjective to give comfort to anyone that safety can be secured without checks and balances.
We are accustomed to trusting people with power yet such persons can never rise above the limits of what it means to be human. We learn from your story that concentration of power in the hands of a few wise men and women can be lethal and toxic.
The fact that the judiciary was able to reverse an executive decision has added value to the economic freedom challenge for without that decision, the investment and attendant jobs will not have been materialised.
We can draw lessons by sharing what could have been the alternative if the judiciary in Kenya had acquiesced to the tyranny as is the case in many developing nations.
Together we can build an Africa of promise and opportunity.
Mutumwa Mawere