Graft agencies need liberation

This is why freedom of thought is a foundational value and constitutional liberty; the totality of our political economy is at its core the output of human endeavour, impelled by determined creation, invention and innovation, all inspired by compassing and devising by minds in pursuit of solutions.

It is known that the single most decisive predictor of sustained competitiveness is a country’s capacity for innovation. In turn, the foundation of innovation is the conviction that, to quote the great Christopher S Khaemba, every problem has a solution, and that always, there is a better way of getting things done, even if the one in use is a superlative improvement from previous schemes.

Assuming that an infinite field of possible procedures and courses of actions exists in theory, the only barrier between us and our vision for a better world, is imagination. The fear of freedom directly translates to a resistance of innovation, which imprisons us in the claustrophobic pond of parochial mediocrity and chronic small-mindedness.

Freedom requires courage, because it often entails antagonism of power structures underpinned by the inertia of the status quo, and their systemic monopoly thereof. Freedom consists of willingness and ability to test rules, interrogate taboos and infringe the irrational expectations of those in authority. We are here because Socrates, Copernicus, Galilei, Darwin and many other icons, possessed sufficient courage to defend their freedom to reimagine our physical and moral universes.

Historically, the greatest direct and indirect obstacle to material improvements and technological advances produced by intellectual enlightenment was the church. Its patriarchs often deployed such repressive instruments as the brutally forbidding injunctions concerning heresy and blasphemy. Applied liberally, these restrictions could effectively strangle vitality out of societies by proscribing progress, thereby incarcerating civilisations in millennia of material, intellectual and moral squalor. Similarly, states can employ laws against treason and subversion to transform countries into open-air prisons.

We must retain the freedom to imagine the unimaginable because that is how we generate technology to protect us against existential worst case scenarios. A little irreverence is in order, as is a willingness to embrace the idea that God approves progress, in principle. Our urgent need for progress is surely incontrovertible, even, most especially in such sectors as anti-corruption.

Within our ludicrously retribution-obsessed penal system, our anti-corruption legal framework is as draconian as they come. This brings into question what the institution’s overarching objective is supposed to be. The thing about anti-corruption is that it is a starkly binary policy choice: zero tolerance or infinite turpitude. The legislative expression of zero tolerance can be counterproductive, as ably demonstrated by our teacher Jesus Christin in the passage contained in John 7:53 to 8:11. It is about a woman who was brought to Him, having been caught in adultery.

The aim of this anomalous arraignment was to test Christ’s commitment to Mosaic edicts. As it happens, however, the legal and judicial authorities of the time ended up failing the fundamental test of credibility when the Lord permitted the execution of the lawful sentence, under the condition that “ he that hath no sin” should cast the first stone. The condign enterprise collapsed instantaneously and spectacularly.

Adultery is not a unilateral act. It is invariably committed in secret, and involves at least two parties. Yet only one had been arrested and prosecuted. So it is with corruption; it entails at least two sets of parties, and utmost secrecy is essential. This set-up produces an insoluble impasse: the most compelling witnesses of corruption are also horribly implicated in it, or outright accomplices. However high we raise penalties for corruption, no meaningful quarry will be caught unless we liberate parties with critical evidence to cast the first stone. As matters stand, these people will “ begin to go away, one at a time, the older ones first, until only Jesus was left, with the woman still standing there”.

There is nothing wrong in principle about instituting a framework for plea-bargaining to resolve this deadlock. The only barrier is imagination- a stolid refusal to countenance efficacy, and an equally quixotic commitment to the perverse incentives and (un)intended consequences of absurd statutory expressions of zero tolerance, which effectively confer a formidable shield of impunity to the corrupt.

- Eric Ng’eno is an advocate of the High Court