On the contemplation of freedom and impunity

The recognition of libel, verbal abuse and cyber-bullying as grievous forms of violence used to be an elementary and cardinal signal of rationality, and its observance a critical indicator of social competence. In these disconcerting times, alas, these crucial tenets no longer appear obvious or universally recognised. Nevertheless, bold assertions of entitlement to insult, troll, abuse and bully at will can never cease to perturb, and more so whenever they are complemented with brazen denial of the injurious essence of resultant impunity.

The denial of injurious intent and effect is a perverse derivation of a mistaken construction of the right to freedom of expression, insofar as the champions of this impunity imply that all actions permitted by the constitution (at least according to this horrifically distorted analysis) are, in principle, harmless. Unfortunately, an even more dreadful dimension to the ambient dysfunction appears to saturate discourse on freedom and impunity, and seems to arise from an incipient fundamental misalignment between our normative coordinates.

This is to say that there exists a disruptive tension between constitutional values and principles on one hand, and praxis in terms of the preferred understandings and experiences of the vociferous and transgressive legions including vicious online bandits, and motivated by a collective subversive animus and an insatiable propensity for anarchy. This anomalous phenomenon is all the more perplexing in view of the clear provisions of article 24 of the constitution for the limitation of rights and fundamental freedoms, among which are limitations which are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom are expressly permitted.

Fundamental freedoms

The constitution explicitly recognises the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others. Article 19 recognises that the rights and fundamental freedoms in the Bill of Rights are subject only to the limitations contemplated in the constitution, while article 25 ring-fences freedom from torture and cruel, inhuman or degrading treatment or punishment, freedom from slavery or servitude, the right to a fair trial and, finally, the right to an order of habeas corpus to be categorially illimitable.

This means that every other liberty set our in the Bill is, can and must be limited in order for it to be enjoyed by the greatest number under conditions of equality. Consequently, article 33 unambiguously limits the freedom of expression; it does not extend to propaganda for war, incitement to violence, hate speech or advocacy for hatred that either constitutes ethnic incitement, vilification of others or incitement to cause harm, or is based on any ground of discrimination.

The provisions on the freedom and security of the person set out in article 29 protect persons from any form of violence from either public or private sources. Further, statute protects the security of the person by proscribing defamation (section 194), threats to kill (223), intimidation and molestation (section 238), assault (section 250) under the penal code, and through the provisions against hate speech and allied outraged under the National Cohesion and Integration Act as well as the Cybercrimes Act, which proscribes the use of electronic communication to intimidate, harass or threaten another person.

The legal framework is neither a spurious fabrication of the officious and despotic, nor a capricious abstraction by the idle and deluded. Rather, it is based on the sound recognition of universal principles recognised from time immemorial, and established as jurisprudence since antiquity.

Architecture of liberty

In the first book of his celebrated Commentaries on the Laws of England, William Blackstone provided, in 1769, an account of the right of personal security, being a person’s legal and uninterrupted enjoyment of life, limbs, body, health and reputation as constituting the absolute rights of individuals, or their natural liberties, and establishing the principal aim of society or the state as the protection of individuals in the enjoyment of these absolute rights by instituting laws to maintain and regulate them.

Restriction or regulation are indispensable because if every person retains the “absolute and uncontrolled power of doing whatever (they) please”, every other person would likewise have the same power, and there would be no security for any individual in the enjoyment of these rights. This is the “war of all against all” which Thomas Hobbes, had, earlier in 1651, memorably described as a most inimical liberty to the extent that its ultimate consequence is that human life would be “solitary, poor, nasty, brutish and short.”

The state and all its legal and policy instruments are dedicated to the security, cohesion, unity, order and development of society, and this must be understood as the purpose of both our liberties and their limitations. Impunity, anarchy, and violent mayhem, are antithetical to society’s fundamental constitutional enterprise. Therefore, neither the constitution, nor the freedoms contemplated in it, are instruments of instigating cruelty, hate and bullying or conducing pessimism, despondency, anxiety, fear, negativity and suspicion. A wholesome appreciation of the architecture of liberty therefore necessitates urgent recalibration of the normative coordinates of our moral compass.

The writer is an Advocate of the High Court of Kenya