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The metamorphosis of the ideas and positions of Mchungaji Kishoka has not occurred unnoticed. Of particular interest is the evolution from his stance on 'collective self-reliance' to 'individualism.' It is not easy to tell whether the 'Reverend' is playing the devil's advocate or he has seriously undergone the baptism of fire in the ivory towers and citadels of western liberalism, capitalisma and imperialism. What is important though is to unpack his recent assertions against the twin key tenets of African Socialism, that is, collective ownership of national resources and equitable distribution of the wealth of the nation.
When the self-proclaimed Reverend asserts that there is no problem with being or becoming rich and using riches in whatever ways one personally wishes provided s/he is doing so within the confines of the law, he is taking for granted the political economy of 'private wealth' and its legal context. He is assuming that people simply become rich by hardwork and others become poor by being lazy. Or as another champion of 'personal wealth' puts it: 'I am rich but not because you are poor!' However, the political economy of richness indicate that historically being rich is primarily a result of taking advantage of others or to put it in the crude language of anti-capitalism, it is mainly an outcome of exploitation.
It is this last point that Mchungaji needs to contextualize with respect to the fact that the laws we have were mainly enacted to protect this exploitation and exploiters. Probably no other person historicize better the evolution of this liberal legal regime that protect 'private property' that in essence is 'collective property' than our eminent constitutional lawyer and Professor of Law, Issa Shivji, in his article 'Law's Empire and Empire's Lawlessness.' It would do Mchungaji justice if he reads it hereunder:
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For those of us who come from Africa, the hypocrisy and the double standards of the Western Establishment are not new. We have got accustomed to it. Yet, barring intellectual sceptics and political opportunists, the admirers, nay believers, in values of Enlightenment and the virtues of Rule of Law have been many and not far between. The Nkrumahs and the Nyereres, the Mandelas and the Mondlanes were all steeped in Western liberal values and crafted the demands of their people's independence in the language of law and rights. When accused of liberalism by left students in the 1960s, the author of Socialism and Self-reliance, Julius Nyerere, quipped: 'I am a bourgeois democrat at heart!'
The nationalist critique of the Western legal, moral and political order, which, in any case, the African leaders adopted in their countries, was from within. It was a critique, which highlighted the divergence between the ideal and the real, between theory and practice, between the desirable and the achievable. The fundamental premises of the Western legal thought and its world outlook, however, remained, by and large, unchallenged.
Some of us who adopted more radical approaches, albeit still within Western traditions, did not perhaps subscribe wholly to Thompson's thesis that the rule of law was an 'unqualified good'. Yet we, too, saw in bourgeois law and legality, space for struggle to advance the social project of human liberation and emancipation. Law, we argued, was a terrain of struggle; that rule of law, while expressing and reinforcing the rule of the bourgeoisie, did also represent the achievement of the working classes; that even though bourgeois democracy was a limited class project, it was an advance over authoritarian orders and ought to be defended. The legal discourse, whether liberal or radical, thus remained rooted in Western values, exalting the Law's Empire.
To be sure, in my part of the world, the law faculty and students went beyond the confines of legal discourse. The sixties and seventies saw an upsurge in interdisciplinary approaches to law. We crafted new courses like 'law and development', read theories of imperialism and demonstrated against the war in Vietnam. Imperialism was on the defensive.
We studied history and political economy. We discovered and recorded the crimes of imperialism against our people. We came to know how our continent was depopulated and its social fabric devastated by the slave trade and then colonialism. We were enraged. We were equally enraged as we read how the industrial revolution in Britain was built on the backs of child labour and American development rose from the genocide of the indigenous 'Indian' population and the enslavement of our brothers and sisters. In disgust, we learnt that while the pundits of capitalism glorified competition, the textile houses of Lancashire conspired to have the hands of Indian craftsmen chopped off so as to destroy India's textile industry.
Although all this was history, we were outraged because imperialism continued to be with us and showed its most brutal and ugly face as it napalmed Vietnam. Apartheid South Africa, with the connivance of imperialism, armed RENAMO creating havoc in the newly liberated Mozambique. American multinationals continued to rape the resources of the then Zaire, now the Democratic Republic of Congo. In much of the rest of Africa the cold war continued to be fought by the superpowers through their proxies leaving the dead, the maimed and the malnourished in its wake.
Eventually the Lilliputian Vietnam demolished, morally and militarily, giant America. David defeated Goliath. The backward Portuguese empire collapsed. We were inspired. Imperialism was demoralised. Then came the restoration.
The Berlin wall fell. Imperialism rode on the triumphalist wave to rehabilitate itself. Douglas Hurd, the then British Secretary of State for Foreign Affairs, heaved a sigh of relief: 'we are slowly putting behind us a period of history when the West was unable to express a legitimate interest in the developing world without being accused of 'neo-colonialism'.' The moral rehabilitation of imperialism was first and foremost ideological which in turn was constructed on neo-liberal economic precepts - 'free' market, privatisation, liberalisation, etc - the so-called Washington consensus. Human rights, NGOs, good governance, multiparty democracy, and rule of law were all rolled together with privatisation and liberalisation, never mind that they were utterly incompatible.
The 'new' comeback of rule of law had little to do with the original Enlightenment values, which underlay it. This time around it came as both a farce and a tragedy. Farce because the law was not being made by the representatives of the people. International Financial Institutions (IFIs) and their consultants dictated it. Tragedy because the national sovereignty won by the colonised people was all but lost except in name, and this time around, as John Pilger says somewhere, without a gunboat in sight. But guns were never out of sight. Witness Panama. Witness Sudan. Witness Somalia and Iraq and Iraq again.
Globalisation, through the laws of privatisation and liberalisation, struck at the heart of the democratic legislative process. Then, lo! behold, came nine-eleven. Mr Bush picked up his 'phone to receive pre-arranged messages of support from African leaders, one after another. Everyone was told to fall in line. 'You are either with us or with terrorists'. No African leader could dare say anything even remotely close to what the Iranian leader said: 'We're neither with you nor with the terrorists!'. Iran was promptly included in the axis of evil.
One after another, African countries enacted similar anti-terrorism statutes, contrary to their own constitutions which had provided for bill of rights. The anti-terrorist laws made no pretence of rule of law. Due process, integrity and certainty of rules, open trials, principles of natural justice, right of appeal were all dispensed with. The definitions of terrorism are so wide that these laws are worse then some of the draconian statutes legislated during the one-party authoritarian rule. Opposition to anti-terrorist law was ruthlessly suppressed. In my country, the President devoted the whole of his monthly speech reprimanding the opponents of the anti-terrorist law.
If privatisation laws stabbed the heart of the legislative process, the anti-terrorism laws tore the artery of the judicial process. The rhetoric of the rule of law was exposed to be what it was - a rhetoric. As elsewhere, the Americans are now in the saddle training our police in anti-terrorism. They will soon establish a regional school to train spies, of course, to spy on us, the people, the supposed beneficiaries of human rights, due process, and the rule of law.
This is only a beginning though. The trends are clear. On the West Coast of Africa, the American multinationals are striking roots to control oil resources while on the Eastern board, from Djibouti to, eventually, perhaps, Zanzibar, the Marines are establishing military bases. Who rules Africa today?
Continue reading at http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2003_1/shivji2/
When the self-proclaimed Reverend asserts that there is no problem with being or becoming rich and using riches in whatever ways one personally wishes provided s/he is doing so within the confines of the law, he is taking for granted the political economy of 'private wealth' and its legal context. He is assuming that people simply become rich by hardwork and others become poor by being lazy. Or as another champion of 'personal wealth' puts it: 'I am rich but not because you are poor!' However, the political economy of richness indicate that historically being rich is primarily a result of taking advantage of others or to put it in the crude language of anti-capitalism, it is mainly an outcome of exploitation.
It is this last point that Mchungaji needs to contextualize with respect to the fact that the laws we have were mainly enacted to protect this exploitation and exploiters. Probably no other person historicize better the evolution of this liberal legal regime that protect 'private property' that in essence is 'collective property' than our eminent constitutional lawyer and Professor of Law, Issa Shivji, in his article 'Law's Empire and Empire's Lawlessness.' It would do Mchungaji justice if he reads it hereunder:
------------------------------------------------------------------
For those of us who come from Africa, the hypocrisy and the double standards of the Western Establishment are not new. We have got accustomed to it. Yet, barring intellectual sceptics and political opportunists, the admirers, nay believers, in values of Enlightenment and the virtues of Rule of Law have been many and not far between. The Nkrumahs and the Nyereres, the Mandelas and the Mondlanes were all steeped in Western liberal values and crafted the demands of their people's independence in the language of law and rights. When accused of liberalism by left students in the 1960s, the author of Socialism and Self-reliance, Julius Nyerere, quipped: 'I am a bourgeois democrat at heart!'
The nationalist critique of the Western legal, moral and political order, which, in any case, the African leaders adopted in their countries, was from within. It was a critique, which highlighted the divergence between the ideal and the real, between theory and practice, between the desirable and the achievable. The fundamental premises of the Western legal thought and its world outlook, however, remained, by and large, unchallenged.
Some of us who adopted more radical approaches, albeit still within Western traditions, did not perhaps subscribe wholly to Thompson's thesis that the rule of law was an 'unqualified good'. Yet we, too, saw in bourgeois law and legality, space for struggle to advance the social project of human liberation and emancipation. Law, we argued, was a terrain of struggle; that rule of law, while expressing and reinforcing the rule of the bourgeoisie, did also represent the achievement of the working classes; that even though bourgeois democracy was a limited class project, it was an advance over authoritarian orders and ought to be defended. The legal discourse, whether liberal or radical, thus remained rooted in Western values, exalting the Law's Empire.
To be sure, in my part of the world, the law faculty and students went beyond the confines of legal discourse. The sixties and seventies saw an upsurge in interdisciplinary approaches to law. We crafted new courses like 'law and development', read theories of imperialism and demonstrated against the war in Vietnam. Imperialism was on the defensive.
We studied history and political economy. We discovered and recorded the crimes of imperialism against our people. We came to know how our continent was depopulated and its social fabric devastated by the slave trade and then colonialism. We were enraged. We were equally enraged as we read how the industrial revolution in Britain was built on the backs of child labour and American development rose from the genocide of the indigenous 'Indian' population and the enslavement of our brothers and sisters. In disgust, we learnt that while the pundits of capitalism glorified competition, the textile houses of Lancashire conspired to have the hands of Indian craftsmen chopped off so as to destroy India's textile industry.
Although all this was history, we were outraged because imperialism continued to be with us and showed its most brutal and ugly face as it napalmed Vietnam. Apartheid South Africa, with the connivance of imperialism, armed RENAMO creating havoc in the newly liberated Mozambique. American multinationals continued to rape the resources of the then Zaire, now the Democratic Republic of Congo. In much of the rest of Africa the cold war continued to be fought by the superpowers through their proxies leaving the dead, the maimed and the malnourished in its wake.
Eventually the Lilliputian Vietnam demolished, morally and militarily, giant America. David defeated Goliath. The backward Portuguese empire collapsed. We were inspired. Imperialism was demoralised. Then came the restoration.
The Berlin wall fell. Imperialism rode on the triumphalist wave to rehabilitate itself. Douglas Hurd, the then British Secretary of State for Foreign Affairs, heaved a sigh of relief: 'we are slowly putting behind us a period of history when the West was unable to express a legitimate interest in the developing world without being accused of 'neo-colonialism'.' The moral rehabilitation of imperialism was first and foremost ideological which in turn was constructed on neo-liberal economic precepts - 'free' market, privatisation, liberalisation, etc - the so-called Washington consensus. Human rights, NGOs, good governance, multiparty democracy, and rule of law were all rolled together with privatisation and liberalisation, never mind that they were utterly incompatible.
The 'new' comeback of rule of law had little to do with the original Enlightenment values, which underlay it. This time around it came as both a farce and a tragedy. Farce because the law was not being made by the representatives of the people. International Financial Institutions (IFIs) and their consultants dictated it. Tragedy because the national sovereignty won by the colonised people was all but lost except in name, and this time around, as John Pilger says somewhere, without a gunboat in sight. But guns were never out of sight. Witness Panama. Witness Sudan. Witness Somalia and Iraq and Iraq again.
Globalisation, through the laws of privatisation and liberalisation, struck at the heart of the democratic legislative process. Then, lo! behold, came nine-eleven. Mr Bush picked up his 'phone to receive pre-arranged messages of support from African leaders, one after another. Everyone was told to fall in line. 'You are either with us or with terrorists'. No African leader could dare say anything even remotely close to what the Iranian leader said: 'We're neither with you nor with the terrorists!'. Iran was promptly included in the axis of evil.
One after another, African countries enacted similar anti-terrorism statutes, contrary to their own constitutions which had provided for bill of rights. The anti-terrorist laws made no pretence of rule of law. Due process, integrity and certainty of rules, open trials, principles of natural justice, right of appeal were all dispensed with. The definitions of terrorism are so wide that these laws are worse then some of the draconian statutes legislated during the one-party authoritarian rule. Opposition to anti-terrorist law was ruthlessly suppressed. In my country, the President devoted the whole of his monthly speech reprimanding the opponents of the anti-terrorist law.
If privatisation laws stabbed the heart of the legislative process, the anti-terrorism laws tore the artery of the judicial process. The rhetoric of the rule of law was exposed to be what it was - a rhetoric. As elsewhere, the Americans are now in the saddle training our police in anti-terrorism. They will soon establish a regional school to train spies, of course, to spy on us, the people, the supposed beneficiaries of human rights, due process, and the rule of law.
This is only a beginning though. The trends are clear. On the West Coast of Africa, the American multinationals are striking roots to control oil resources while on the Eastern board, from Djibouti to, eventually, perhaps, Zanzibar, the Marines are establishing military bases. Who rules Africa today?
Continue reading at http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2003_1/shivji2/
