Why the law allows no such thing as absolute freedom

As far as society is objectively concerned, freedom is not the heavenly laissez faire imagined by the “legal fraternity” of the liberal intelligentsia.

Kenya’s very constitutional ban on “hate speech” makes that self-evident. By openly imposing a limitation on free speech, it announces that not all speech is a social humdinger.

If it were, Mao Zedong would have thought twice before slapping a ban on the mouths of all those party members who knew only how to yap – freely commenting on everything – but who made no effort to study anything, and Kenya would celebrate with shining medals all our Duales, Kajwangs, Khalwales, Midiwos, Muturis, Shebeshs and Sonkos.

Although human individuals and groups need to freely express their desires and situations, certain exigencies of collective living make it necessary for them to express these in measured terms, in words that do not injure the feelings of both the individual and his collective.

Where would a species as social as humanity be if members were licentiously free to hurl insolent words at one another, rape one another, intrude into one another’s existential spaces, brandish the deadliest weapons inside marketplaces, shout “FIRE” in a crowded theatre when there is no fire? And so on.

Manifestly, that was why Nzamba Kitonga, Atsango Chesoni and our other constitution-makers powerfully declined to “guarantee” any freedom in any absolute terms. They seemed to know that, whenever permitted absolutely, every freedom must degenerate into jungle law.

Even jungle lawlessness is perpetrated only extra-specifically. A hungry cheetah will chase only a gazelle – not another cheetah – with such hell-for-leather acceleration, such absolutely free determination. Within, say, a beehive, all individuals obey certain very clear laws.

It makes no difference that these laws are instinctive only, natural selection having written them into the genes of every individual. What human intelligence has done is merely to replace most forms of instinctive herd behaviour with individual ability to learn even to rebel against the herd.

Natural inhibitions

In short, the conscious prohibitions that we call law are merely the form in which a highly intelligent species expresses the natural inhibitions that we call instinct. Prohibition refers to consciously made law. Inhibition refers to the instinctively given law that governs all other social species.

The one serves to protect the individual from collective tyranny and the other to protect the collective from individual waywardness. The latter – which is probably unique to human intelligence – includes such intra-specific waywardness as theft, robbery, murder, rape, libel and other things which compose the penal codes.

Protection of the individual is the idea behind the proviso which, in all liberal constitutions, follows every guarantee (“provided that...”). Indeed, a proviso often has the effect of clipping the wings of a guarantee, sometimes even rendering it totally wingless. That, indeed, is the question.

How absolute is the constitutional rubric which “guarantees” you the freedom of movement when the same rubric immediately proceeds to announce a string of “provideds” outlawing all “loitering with intent”, all trespassing into somebody’s property, all mass rallies without a licence, any invasion of another person’s bedroom, any entry into a place that the defence forces may declare a security area?

The upshot is that all such bans – because they aim at preventing any higgledy-piggledy state of affairs – are socially necessary and good. Indeed, the very expression of them immediately renders nonsensical and perilous any absolute freedom of the kind demanded by the Western liberal.

Any properly educated society will deliberately reject freedom in any absolute form, in favour of certain objective interests which, although applicable to all, will guarantee dignity to individuals only when enjoyed privately or shared in gratuity.

The reason all intelligent human beings accept the Nzamba-Atsango provisos is precisely that they are what enable a proper balance between the “dos” and the “don’ts”; between over-permissiveness and over-prohibitiveness; between social anarchy and social order; between democracy and despotism.

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