mis·in·for·ma·tion – false or inaccurate information, especially that which is deliberately intended to deceive.
Is it a crime to lie in public? Is it a crime to “misinform the nation” or “mislead the people” about your political opponent’s achievements, undertakings or intentions? This is the question that has agitated the ruling alliance over the past three months. No matter how many times the ruling alliance has attempted to set the record straight on its achievements since Uhuru Kenyatta was sworn in as Kenya’s fourth president, the public commons has been awash with what the ruling alliance’s leading lights, such as the Leader of the Majority Party in Parliament and the Deputy President, have characterised as “lies”. There is now a Jubilee Parliamentary Party legislative proposal to criminalise “lying to the public” or, as one aspiring political candidate has termed it, “spreading misinformation harmful to the nation”.
Article 33(2) and Article 24 of the Constitution prescribe the constitutional limits of free speech. While Article 24 prescribes in general terms under what circumstances a right or fundamental freedom could be limited (by the State), Article 33(2) prescribes what free speech is not: propaganda for war, incitement to violence, hate speech, advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm or advocacy of hatred that is based on any ground of discrimination specified or contemplated in Article 27(4). Article 33(3), meanwhile, isn’t so much a restriction on the freedom of speech as an obligation that in speaking freely, one must not disrespect the rights or reputations of others.
Two things are readily apparent. First, “misinformation” or “lies”, in and of themselves, are not reasonable grounds for placing any limitations on Kenyans’ freedom of speech in accordance with Article 24. Second, the intention of the Bill of Rights in Chapter Four of the Constitution wasn’t intended to create new offences for which citizens could be prosecuted for by the State; it was intended to restrict the State when it sought (or seeks) to restrict Kenyan’s rights and fundamental freedoms.
One thing seems to characterise the ruling alliance: acute political paranoia. Despite a fairly broad political mandate as evinced by its numbers in both the National Assembly and the Senate, its control of almost half the county governments in Kenya, its implementation of flagship projects (including the much-derided laptops-for-children) and justified successes in diplomacy and foreign relations, the ruling alliance has continued to operate like a minority opposition party, unsure of its parliamentary strength, hobbled by infighting and beset by enervating setbacks related to backhanders, kickbacks and tender-price-inflating nitwits. Despite its command and control of the national airwaves through its administrative and political oversight of the Communications Authority, the ruling alliance has been incapable of a coherent propaganda strategy to counter the Jubilee-is-the-most-corrupt-regime-ever narrative persuasively advanced by a member of the Minority Party, Raila Odinga.
The ruling alliance has had many successes but all have been overshadowed by revelations of what David Ndii, one of Kenya’s best thought-leaders, and John Githongo, Mwai Kibaki’s teller of uncomfortable truths, have called looting. “Looting”, they explain, goes beyond petty or grand corruption;corruption is simply the venal act of a few people who are in the right place with the opportunity to rip off the taxpayer. Looting, on the other hand, is the systemic and parasitic programme, sanctioned at the highest levels of the Government, to rob the taxpayer blind. Mr Odinga might not have the glib tongue that many in the ruling alliance seem to possess (the Deputy President and the Majority Leader in the National Assembly come readily to mind), but he has an uncomfortable knack of making them look daft every time they try to hide proof of perfidy in high places. For that reason, if for no other, more and more members of the ruling alliance consider Mr Odinga the most dangerous man in Kenya and the stratagem they are trying out for size is to classify his actions in the florid language of the “crime of misinformation”.
No one now doubts that the political campaigning for the 2017 general election is well underway and that a few members of the ruling alliance are not confident about the chances of their flag-bearer, President Uhuru Kenyatta. That he, too, entertains the suggestion that political speech should be restricted to protect Kenya and its citizens from Mr Odinga’s misinformation and lies lends credence to the notion that the ruling alliance is no longer confident of its chances at the hustings in August 2017. In a continent whose politics is rapidly changing, perhaps the members of the ruling alliance fear that despite Mr Odinga’s frequent malapropisms, his accusations may yet find purchase among the political hoi polloi, put paid to a repeat command performance by the ruling alliance at the next general elections, embolden constitutional commissions and independent offices to go fishing with dynamite, and motivate the minority party, civil society windbags and foreign powers to challenge the ruling alliance’s political hegemony.
The tool that the intellectual dwarfs of the ruling alliance have chosen for this particular task will not work. It is likely to be welcomed with open arms by the securocracy whose existence is almost entirely predicated on keeping the Commander-in-Chief in power, through thick and thin, good times and bad, as opposed to protecting the citizens’ rights or fundamental freedoms enumerated in the Bill of Rights. They quickly forget that what was wielded against their political opponents in the past will be wielded against them in the future. After all, the past is prologue. Should they manage to imprison Mr Odinga (or fatally end his political career), they should be prepared to hold onto the levers of political and governmental power by force if necessary because, as Baba Moi came to discover, even twenty-four years is not forever. Sooner or later the music will stop and it is they who will be without seats.
In Ghana, John Dramani Mahama turned out to be a one-term president as did Goodluck Jonathan in Nigeria. In the Gambia, strongman Yahyah Jammeh lost to Adama Barrow (though he seems hellbent on staying put despite having initially conceded defeat) while in Angola, José Eduardo dos Santos has promised to step down before the next general elections in 2017, the same year Kenya will be going to the polls. In the United States, Hillary Clinton lost to Donald Trump in what many called a “shock” defeat (though I don’t know what’s so shocking for a war-mongering wife of a serial philanderer and liar to lose an election to an electoral neophyte) while in the United Kingdom and Italy, prime ministers resigned their offices after losing referenda, the UK on the European Union and Italy on constitutional reforms. Both Africa and the rest of the world have recently demonstrated that incumbency is no guarantee of political longevity or victory any more.
Perhaps members of the ruling alliance have finally discovered that a partnership that is consecrated with looting is not the winning recipe they need for the 2017 general election and, in their panic, rather than right their ship, have decided to charge the doyen of the opposition with charges akin to treason. If it is a strategy to curry sympathy for the 2017 elections, I cannot see it. What is readily apparent is that Jubilee Party apparatchiks have panicked and in their panic are acting recklessly. It is their recklessness, not their looting inclinations, that is likely to be their undoing but only time will tell and it will be a long two hundred and thirty four days.