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 West-trained leaders and legal instruments from departing colonialists.
Last week, 60 years after his death, Poland's General Wladyslaw Sikorski's body 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 untimely 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 - 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 weld 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 any one 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; 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 Hon. 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 to 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 burry themselves in yet another blunder of asking for government controls on pricing. Note; price controls is euphemism for using the law to disenfranchise small traders and those who are not politically correct!
Growing up in the pre-liberalization era, Kenyans witnessed days when essential food commodities would disappear from the shelves simply because the retailers anticipated 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 in a $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 – say 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; it curtails free movement of people; 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 legitimize 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.
By James Shikwati
Mr. Shikwati is the Director of Inter Region Economic Network