Trade not freedom for security – you will surely lose both!

The trade-off between freedom and security, so often proposed so seductively, very often leads to the loss of both. — Christopher Hitchens, Author & Public Intellectual, in the August 2003 issue of Reason.

Any law that abrogates fundamental rights, that gives too much discretion, that limits transparency and that undermines accountability is a bad law that should not be enacted, and if already enacted should be repealed expeditiously. The Prevention of Terrorism Bill 2012 is such a law.

Sadly, blogosphere debate on this bill has progressed down a dangerous, if predictable,  religious and ethnic path. Kenyan Muslims and Somalis feel and say that the law targets them and oppose it fervently; the rest of the population agree that indeed it does, and therefore poses no threat to them! As a result, opposition to the Bill is almost entirely from the former group, while support is almost entirely from the latter group.

 My greatest fear is that too many members of the public will embrace the government’s call to give up some freedom in return for greater safety, only to find that they have lost freedom without gaining safety.  – Nadine Strossen, Professor of Law, President of the American Civil Liberties Union February 1991 to October 2008, in the December 2001 issue of Reason.

As is almost inevitable in all discussions of a political nature in Kenya, the insults and wild allegations have begun to fly! Phrases like ‘the guilty are afraid’ and ‘this is an American plot to curtail the spread of Islam and take away the wealth of Muslims’ have entered the discourse – introducing elements that are highly emotive, highly subjective, often irrational, and that cannot be reasonably deduced from the Bill itself. This has provided an undesirable side-road down which the debate on this crucial matter has veered – wasting valuable time and energy that would be better spent addressing the very obvious and immediate danger that this law poses.

This law can be fought and defeated at the level of rhyme and reason – without undue appeal to ethnic or religious sentiments – for the simple reason that it is a threat to ALL Kenyans. Muslims and ethnic Somalis may feel unduly targeted by the law because of the geopolitical realities of this moment in time, BUT the law can be equally applied to any group now and in the future – any group that is seen as a threat to the persons that happen to be wielding the coercive power of the State at the time. By reducing this law to a threat against Muslims and Somalis and their perceived wealth, is to suggest that other Kenyans need not bother about it, because it does not concern them. That would indeed be great victory for those that would that this law enter our statute books!

 People who value freedom will always have to defend it from those who claim the right to wield power over others. … And, in today’s world…, that means being an active citizen. David Boaz, Cato Institute, in Is Freedom Winning?

It is folly of gargantuan proportions for the non-Muslim/non-Somali majority of the population to think that this law does not concern us, because it does! It is a threat as much as terrorism is, though of a more insidious and long term nature. Stability will be restored in Somalia and the threat posed by international terrorists is being progressively reduced and at the current trajectory, will be degraded to an ‘acceptable’ level in the foreseeable future. BUT this law will stay in our statute books if it is indeed enacted! Remember the infamous Preservation of Public Security Act. Though this was a colonial ordinance intended to extinguish the freedom struggle, it was retained by our post-independence Governments, converted in an Act of the Kenya Parliament. Hundreds of people were subsequently detained without trial under its provisions, all enduring unspeakable tortures, many suffering irreversible damage to their health. Who were these victims of a bad law – brave leaders and professionals that dared speak-up against tyranny, and ordinary citizens that were seen to support these leaders. In short – people that were in no way a threat to public security, just a threat to the establishment with its oppressive and kleptocratic ways!

 Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. William Pitt the YoungerBritish politician, youngest Prime Minister in 1783 at the age of 24.

We have been told that this law is necessary to prevent attacks such as we have suffered in the past, and to punish those that may perpetrate such attacks. Many have repeated this argument in debates on blogosphere and elsewhere. But is it really necessary in its current form that jeopardises fundamental freedoms that people have lost life and limb over the last 70 years fighting for? What is the deficiency in our other laws that this law seeks to address? What powers is it that our law enforcement agencies lack under current laws that they need to effectively fight terrorism?

When your response to everything that is wrong with the world is to say, ‘there ought to be a law,’ you are saying that you hold freedom very cheap. As long as human beings are imperfect, there will always be arguments for extending the power of government to deal with these imperfections. The only logical stopping place is totalitarianism — unless we realize that tolerating imperfections is the price of freedom.”  – Dr. Thomas Sowell, Economist, Social Theorist, Political Philosopher, Author

Citizens have often wondered why Ethiopia, another country that is engaged in Somalia, has not suffered equivalent terrorist attacks – and it has been observed that it is because Ethiopia has more effective security systems, backed by appropriate laws. What is not pointed out that the same laws that are used to interdict potential terrorist attacks in that country are also used to suppress legitimate political opposition, civil society and the media! Laws that are targeted at the happenstance of terrorist action, are used against the certain daily need for fundamental freedoms. My fellow citizens, contemplate these profound words:

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety!Benjamin Franklin, one of the Founding Fathers of the United States, an outstanding Polymath

 We must protect fundamental freedoms with all we have got, if only because freedoms lost are so much harder to retrieve – and because these fundamental freedoms are our most valuable possession and greatest asset in the quest for national growth and development. To quote William Somerset Maugham: If a nation values anything more than freedom, it will lose its freedom; and the irony of it is that if it is comfort or money that it values more, it will lose that too!

Finally, I ask you to assess this Prevention of Terrorism Bill 2012 against this Twelve Truths about Legislation:

    1. Any law the electorate sees as being open to being perverted from its original intent will be perverted in a manner that exceeds the manner of perversion seen at the time.
    2. Any law that is so difficult to pass it requires the citizens be assured it will not be a stepping stone to worse laws will in fact be a stepping stone to worse laws.
    3. Any law that requires the citizens be assured the law does not mean what the citizens fear, means exactly what the citizens fear.
    4. Any law passed in a good cause will be interpreted to apply to causes against the wishes of the people.
    5. Any law enacted to help any one group will be applied to harm people not in that group.
    6. Should the citizens mount a successful effort to stop a piece of legislation the same legislation will be passed under a different name.
    7. Any government that has to build safeguards into a law so that it will not be abused is providing guidelines for abusing the law without violating it.
    8. Any legislator up for re-election will vote against a bad law if and only if there are enough other votes to pass it.
    9. Everything the government says will never happen will happen.
    10. What the government says it could not foresee, the government has planned for.
    11. When there is a budget shortfall to cover non-essential government services the citizens will be given the choice between higher taxes or the loss of essential government services.
    12. All deprivations of freedom and choice will be increased rather than reversed.

 Those who profess to favour freedom, yet deprecate agitation, are men who want crops without plowing up the ground. They want rain without thunder and lightning. They want the ocean without the awful roar of its many waters. This struggle may be a moral one; or it may be a physical one; or it may be both moral and physical; but it must be a struggle. Power concedes nothing without a demand. It never did and it never will. – Frederick Douglass, former Slave, Social Reformer, Orator, Writer and Statesman