Citizen liberty and State authority

Implicit in this proposition is that under certain conditions, citizen welfare and freedom can situate themselves as diametrically against the common welfare or public interest.

This underpins the dubious proposition that a strong state must directly control the extent of liberty available to citizens, be it on grounds of special exigencies like emergencies, or other claims predicated on security interests and other existential imperatives.

The security state is basically a functional tyranny whereby human freedom and welfare are actively infringed as a matter of explicit policy.

The security state, or its more or less dysfunctional variants, may be strategic responses to real or perceived danger of anarchy, large-scale disorder, subversion, insurrection and civil crises, which afford excuses to severely repress or extinguish altogether, liberties whose enjoyment is cited as the fundamental trigger.

In other words, the fulsome exercise of rights and freedoms can provide a spurious cause for the arbitrary imposition of irrational restrictions and the infliction of brutal abuses on the pretext of safeguarding state security and, thereby, upholding the greater good.

At other times abuse through exuberant and recklessly immoderate exercise of freedoms can give miscreants and delinquents cover to advance unwholesome enterprises and perpetrate deleterious outrages, thereby impairing the rights and freedoms of others and furnishing a sound extenuation of retaliation through repressive measures.

A people-centred perspective of both liberty and the state fosters the conception of an equilibrium within the rule of law that incorporates a state that is sufficiently empowered for optimal efficacy while guaranteeing the uttermost exercise of the broadest range of freedoms and liberties by citizens.

This is based on the understanding that the foundation of all political institutions is to facilitate human flourishing under conditions of freedom and security by means of an apparatus that comprises, yet also transcends the totality of citizens and their interests.

The reason why citizens are required to forfeit a significant portion of their entitlements to the state is that by catering to the collective, the state advances the individual interests of every citizen more efficiently, subject to the caveat that in society, everyone's freedom is circumscribed by the public interest and the freedom of others.

If the purpose of state and public institutions is to attend to citizens' well-being, then forgoing the uninhibited exercise of freedom is, in the final analysis, not quite the drastic forbearance since the citizen is really only entrusting the actualisation of their aspirations to an authorised agency.

Such an agency can do a better job while preventing the conflicts and disorder that would inevitably ensue in the condition of natural liberty, which is a full-blooded free-for-all.

It follows then that the foundational mandate of state authority is that it exist solely for the welfare of the people.

It ceases to exist once divorced from any connection with the popular will, since the mutual obligations forming the fundamental considerations of the social contract are thereby absolutely extinguished.

The ends of a civil state being thus clear, it further follows, ipso facto, that the state is invested with the full complement of the means of pursuing and achieving these ends.

All the authority conferred upon the state is solely dedicated to the achievement of the highest levels of citizen well-being, and there is an obligation to deploy the formidable array of instruments arising from this authorisation to promote the people’s security, health and happiness in general.

Insofar as the state purports to be acting in pursuit of these ends, it can intervene to limit the enjoyment of private rights and freedoms because the collective interest supersedes individual liberty.

The stability and effectiveness of the state as an instrument of collective aspirations, which is to say, as a legitimate res publicus and an agency of the salus populi, constitutes a public interest that may extinguish or at least severely diminish individual liberty under certain conditions.

On the streets, it is possible to observe the operational implications and intricate dynamics of this mechanism at work. Whenever citizens gather to exercise their rights of association, assembly, demonstration and petition, the law guarantees their right to do so without let or hindrance, as long as they are peaceful and unarmed, and are not congregating to perpetrate repugnant delicts.

This means that in the first instance, the freedom of citizens to coagulate in rambunctious throngs is virtually illimitable and the state's authority to deny or limit them is, conversely, severely diminished.

However, every degree by which they, or any of their number, run afoul of the implicit mandatory standard of legitimate exercise of constitutionally protected freedoms instigates proportionate escalation of the state's authority to regulate it.

The writer is an advocate of the High Court of Kenya