KITUO CHA SHERIA BLOG

Is the Finance Act 2018 an Abuse of the Social Contract?

While a lot of people may agree with me that Kenya may largely pass for a democracy, few understand democracy as a predicate of a social contract. Democracy is neither an end to itself nor a means to leadership as it is popularly thought of. It is however a way of executing a social contract between the rulers and the ruled. This subject is made relevant by the financial Act, 2018. This is a law which in effect passes down the tax burden to the people of Kenya while disregarding their protests, yet they have very little to do with the debt crisis in the country or the mismanagement of public funds that has caused this. Simply put, it is asking the Kenyan people to pay more, to fund for projects they don’t really need, run a Government that doesn’t care about them and pay debts that they do not know how they came about. This paper therefore delves into the social contact both as a legal and political theory; it analyzes its place in the legal system in Kenya, attempts to interprete the Finance Act 2018 and the debt crisis management with regards to the social contract and finally gives a way out.  

The social contract theory was primarily developed to avoid a state of nature which is famously described by Thomas Hobbes’ five adjectives as a life that is solitary, poor, nasty, brutish and short. It is a life of chaos, characterized by selfishness and might for right. In order for self-preservation and protection and to avoid pain and misery, man must submit to the social contract. This contact consists of two pacts, pactum unionis where people undertake to live together in peace and harmony so as to protect lives and property and pactum subjectionis, where people unite together to pledge to obey the authority and surrender whole or part of their freedom to the authority. The authority in turn guarantees protection of life, property and freedom to certain extent. He is the sovereign and must therefore act or use this authority for the best interest of all the citizens. Is the social contact theory applicable to Kenya?

Kenya is a State with a defined population, area, Government and is sovereign which means that by organization her people seem to have subjected themselves to this contract. The preamble of the Constitution of Kenya manifests elements of pactum unionis where Kenyans undertake to live together as one indivisible sovereign nation, committed to the nurthering, well-being and protection of individuals, the family and communities in the nation. The Constitution of Kenya 2010 further recognizes people’s power as article 1 highlights sovereignty of  the people, article 1 (3) brings in the elements of pactum subjectionis as this power is delegated to the executive, judiciary and parliament. Article 94 (2), gives parliament the role of representing the people. This means that it has to legislate and work for the interest of the people of Kenya. Article 38 which gives Kenyans the right to vote is the ultimate manifestation of the social contract theory in Kenya.

As much as there is no doubt that the people have power and that they cede the power, the question is whether the Government works for the best interest of the people?  Do Members of Parliament always work for the best interest of the people? Does the Executive and the judiciary work for the benefit of the citizens? Do they even realize that the power they exercise belong to the people? There have been fundamental concerns as to whether they can even relate to the problems of the people they lead.  

Kenya is set in a context where the leaders claim to want to fix roads they don’t use, they pretend to be concern of the healthcare system they hardly use, schools their children do not go to and now they want to fix an economy they ruined. While these are blatant abuses of the social contact, none is as strenuous as imposing tax increments to the people of Kenya through the Finance Act, 2018.

The law imposes tax increments in telecommunications services, petroleum products, betting winners, motor vehicle exercise duty, sugar confectioneries, and telephone and internet services. This is done with very minimal participation while ignoring the fact that the most affected people are the poor and economically marginalized. The whole essence of Government is to protect its vulnerable yet the Finance Act, 2018 seems to have the opposite effect. Is there a way out?

When parliament and the Executive in Kenya seem to have betrayed the people and therefore abused both the social contract and the Constitution 2010, there are two ways out of this. Firstly, is using the judicial arm of the Government which also derives power the sovereign will of the people. This may not work as they as they are also part of the system. Secondly is the way provided for by proponents of the social contract theory.

The right to disobey the authority. People need not suffer under an oppress regime, there is no duty to suffer and live from hand to mouth  because those in leadership decide to accumulate debts or  that they made corruption and the misuse of  public resources a way of life.

Disobedience is the true foundation of Liberty -Henry David Thoreau

By:

Ouma Kizito AjuongAdvocate