The background against which the Anglo-Chinese opium I
and II Wars of 1839/1842 and 1856/1860 were fought was due to flooding of the opium
by the British Merchants to China from India.
The proliferation of opium into China had the effect
of drop in price, local consumption increased rapidly and the drug penetrated
all levels of society. “This had a devastating effect on the general Chinese
population while local officials profited greatly from bribes and taxes
involved”.
Fast forward to 1920 when the US drinking problem had
its toll on America citizens. This necessitated the country to effect
Eighteenth Amendment to the Constitution under Volstead Act which prohibited
the sale of alcohol. People like the late Joseph P Kennedy Sr, the father of
the late President John F Kennedy, is alleged to have made money in bootlegging
the illegal importation and distribution of alcohol during the prohibition. This
prohibition was “Successful in reducing the amount of liquor consumed” but had
the unintended consequence of increasing “rampant underground organized and
widespread criminal activity”. However on March 22, 1933, President Franklin
Roosevelt signed into law the Collen – Harrison Act legalizing beer with an
alcoholic content of 3.2% by weight. Eventually on December 05, 1933,
ratification of the Twenty –First Amendment repeated the Eighteenth Amendment
to the Constitution.
Drinking as is being witnessed in Kenya and indeed
many countries in Africa i.e. South Africa, can equally draw another lesson
from what is happening to Native (Red Indians) Americans in US and the
aborigines in Australia. They are slowly and surely heading to extinction
because of widespread drinking to the extent they now live in exclusive reserves
and literally don’t participate in the normal economic, Social and political
lives of their Counties.
In the very recent past, there has been awakened ‘consciousness’
on the part of the Kenyan leadership to deal with an already dire situation of
crippling effect of drinking by both young and old in parts of Kenya. The
object is noble but the wherewithal raises legal questions on the methodology
of eliminating the drinking sources.
When a nation subscribes to the rule of law and due
process, it becomes important not only to think of the future but also the
means through which we achieve that which we desire. The mechanism of dealing
with the alleged offences against the law must always be lawful. Why? Our
constitution under Act 40 on the protection of right to property covers right
to acquire and own property (a) of any description and (b) in any part of
Kenya. The critical fact to note is that to the constitution there is no
difference between a bicycle owner and the owner(s) of multimillion shilling BAT
plant! Property is property and the government must protect the sanctity of the
bicycle as much as it protects the BAT plant.
Honorable members of Parliament have done a ‘commendable
job’ in destroying what are supposedly illegal and illicit drinks! However they
have no police powers and hence their actions, though well intentioned is outrightly
unconstitutional and illegal. Illegality cannot correct illegality, period! In
the preamble our Constitution states that, “We, the people of Kenya, recognizing
the aspiration of all Kenyans for a government based on the essential values of
human rights, equality, freedom, democracy, social justice and the rule of law!”
Therefore every Kenyan is indeed enjoined to observe this very important
principle of our constitution. Any transgression of any law of the land by
anybody is an affront to civilized conduct and must be met with lawful means.
This is the only way we can always be safe and proud of being Kenyans when we
live in the knowledge that every Kenyan is subordinate to the law.
If we seriously wish to address this problem for ever,
we must go back to the basic. First the work of dealing with any criminal
activities is within the perview of the National Police Service. Vigilantes
have no place in a civilized society by whatever description.
Why? If allowed, this is the fastest way of creating
an anarchy. The government must be resolute in enforcement and adherence of the
rule of law. Those charged with the mandate of maintenance of law and order
must discharge their duties and if they fail, there are legal channels to
provide immediate sanctions. The courts must discharge their duties too without
delay. In other words, every arm of Government must execute its role within the
law and with justice always in mind.
However, let us all be alive to the dire consequences
to individual, families, communities and the nation in general where drinking
reaches catastrophic levels. The effect to pro-creation, productivity, social
cost and above existential threat are both devastating and real. Therefore no
nation can be blind to these consequences nor can any sensible citizen can
fault its government for taking all legal means to address this threat. The proportion
we have reached, it will require long term strategy and co-operation of the
entire citizenry. The challenge is not individual, community, political or
party specific hence nobody can claim immunity nor celebrate the suffering of a
people. We are all in it together.
Karanja KABAGE
ADVOCATE,
HIGH COURT OF KENYA
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