If we begin choosing which laws to obey, we open floodgates of anarchy

We read of the death of the philosopher Socrates (469–399 BC) in the history of ancient Greece. The great thinker was sentenced to die by drinking the hemlock, for “harming public piety.”

Scholars are not agreed what “harming public piety” meant. But the custodians of law and order thought it was something bad for society. In truth, the authorities were worried about the philosopher’s growing influence among the youth. And so they put him to death.

Socrates’ friends were unhappy about this sentence. They thought that courts should not kill innocent people. And Socrates was innocent, they said. Accordingly, they devised a plan. They would help him escape into exile. But the philosopher refused. “No, he said, “Laws must be obeyed; even bad laws.”

The thrust of the argument is simple. If we begin choosing which laws to obey and which ones not to, we open the floodgates of anarchy. In sharp contrast to Socrates, was American Henry David Thoreau (1817–1862). He thought that citizens had a duty to civil disobedience against the state.

The government is rarely useful or efficient, Thoreau said. The laws that government makes are often self-serving. Citizens have no obligation to obey bad laws, he said. They should instead disobey them, as well as the governments that make them. Finally, bad governments must be removed, by whatever means.

Now this is dangerous. First it is not always possible to agree on what laws are good and which ones are bad. Secondly, removal of government “by whatever means” is the surest sponsor of chaos. It is a common practice of democracy that in the Legislature, for example, unanimity is rare. Hence democracy has the notion that the majority will have its way while the minority have its say.

While the majority rules it must know that there exists a minority that is unhappy with the law — or laws. However, the laws are binding to everybody. Should the minority, after losing the Motion in the Legislature rebel against the state because they consider the laws bad? Certainly this could only lead to unprecedented disorder, for everyone must find some law bad.

This is why the attitude of the Kenya Government towards the laws of the land is baffling. Even more baffling is its response to court orders. In the current impasse with the teachers, the government took the teachers’ unions to court — all the way from the Industrial Court through the appellate stages, all the way to the Supreme Court. When the courts decided against the government’s wishes, the government questioned both the soundness of the decision and the legitimacy of the courts to determine the matter in the first place. But why did they run to the courts in the first place? Maybe they thought they would exercise leverage over the courts? I don’t know.

However, fast-forward. The courts issue another order. The second order meets the government’s interests, at least in the short term. Suddenly, the government is advising the teachers to obey the courts. Wooweh! The first ruling was bad and so the courts did not matter. The second ruling is good and courts now matter! This is how to drive the country towards felonious government.

The post-colonial African state, in any event, has been by and large felonious. Kenya has balanced delicately between the rule of law and official felony. Some people are now talking about moving a Motion in Parliament to impeach President Uhuru Kenyatta for holding the law in contempt. They are basically saying that even if the President was not happy with the way the law behaved, he should still have recognised that it was the law. He should have allowed it to govern him, albeit reluctantly. They are worried that the example he has set could go viral.

CORD’s efforts to impeach the President are foredoomed to fail. Some people are already boasting about a tyranny of numbers in the Legislature. They are saying that they already know how they will vote on the matter. They don’t even have to listen to any debate, or to participate in it. They only need to come in at the crucial time to vote. And the Motion will be lost. The sponsors of the Motion also know all this very well. Yet they will still go ahead with it.

Sometimes the essence of bringing up a Motion in Parliament is not so much to win. It is to make a statement. The statement is that Kenya is sinking into State-sponsored anarchy. For the duration of the debate, CORD will bring to the attention of the country and the world the alleged felonies by the Head of State. That alone is bad enough for any self-respecting government. It is a slur on the reputation of the Head of State that he was the subject of possible impeachment in Parliament.

We are not witnessing any concern in government about this slur, however. Are we being told then that the only thing that matters to this government is numbers and the capacity to use them tyrannically? Turned on its head, these numbers mean only one thing — that you can use the Legislature to run a tyrannical regime. If the numbers are right and the composition adequately freed from the capacity to think and decide, you can employ it as automatons to do your malevolent biding. Hence where dictatorships are traditionally one-man shows, the tyranny of numbers is a dictatorship by proxy.

In the end, the tyranny of numbers is criminalisation of the state. As the Head of State, you can treat the law contemptuously and find protection in your machine-driven numbers. You can privatise state institutions and use them for selfish ends. This way, the state becomes a legitimate vehicle for organised criminal activity.

In this manner, elsewhere in Africa, tyrannies of numbers have been used to sanitise fraud, plunder national resources and even to commit murder. As we continue to celebrate the tyranny of numbers in Parliament, we need to worry about where this tyranny is taking our country.

Kenyans will be watching this tyranny and its role in potential abuse of power and office. The day may not be too far off when a critical mass of citizens will join the government in holding the law in contempt. When the time comes, God have mercy upon us.

For now, the courts have issued yet another order to the striking teachers. Their strike has been suspended for 90 days, the teachers directed to go back to their students. In the interest of the law and for their own good in future, the teachers had better heed this directive. They will come back to fight against Kenya’s emerging felonious state — to good effect — some other day.