Beware those who insist on 'objective' debate

The room was stinking. The air was polluted by foul-smelling fish.

The teacher walked down the classroom aisle, to where a Standard Two boy had a bony fish in his pocket. He was happily dismembering it little by little and eating it with startling naturalness, just like peanuts.

The teacher who told me this story was truly amazed at the things little children can do. They are totally unaware of their surroundings, and the prejudices we grown-ups ascribe to.

Unlike the boy of our story, our modern democracies have grown up. Our democratic debate has also filled itself with these ‘grown-up’ prejudices that are slowly paralysing its wonderful flexibility and diminishing its beauty and authenticity.

Last week we pointed at a few serious challenges posed to modern democracy by a more sophisticated lifestyle, the speed of information flow through the Internet and social media.

Abraham Lincoln may have been prophetic when he said in his Gettysburg Address “that the government of the people, by the people, for the people, shall not perish from the earth.”

The greatest challenge for modern-day democracies is the real identification between ‘of’, ‘by’ and ‘for’ the people. These prepositions represent the highest vindication of a government that exercises delegated authority – a representative government.

POINTLESS TO PRETEND

Last Friday I was invited to an unusual forum at KICC. It was organised by the Kenya Christian Professionals Forum (KCPF), a group of Christian professionals from various denominations sharing common values on issues of family, life and religious freedom and social justice.

The forum was not only Christian. I was happy to meet the Vice Chairman of the Hindu Council of Kenya, Mohan Lumba, and the Secretary-General Supreme Council of Kenya Muslims, Adan Wachu. They all spoke about unity, family, respect and peace.

My mind was wondering, why bring religion into this debate? Shouldn’t this be left to objective policymakers? Technocrats? The people who really know? The experts?

Michael Sandel speaks of the need to rediscover the art of democratic debate. He says that it is pointless to pretend that any truly democratic debate is devoid of certain underlying moral principles, religious convictions and philosophical questions.

THE CASEY MARTIN CASE

Personal beliefs and moral and philosophical considerations have an impact on every political debate and every judicial decision. Proof of this can be found in the Casey Martin case, which the United States Supreme Court decided in 2001.

Casey Martin was a disabled professional golfer who needed a cart to move from hole to hole, but the Professional Golfers Association’s (PGA) denied him this facility, claiming that he would be favoured over his competitors who had to walk.

In the final ruling, the Court allowed Martin to use the cart. The Court said that use of a golf cart would not result in a fundamental change to the game since the rule requiring walking between golf shots did not define what the golfers actually do in a competition.

The US Supreme Court demonstrated that it is necessary to inquire into the purpose or function of the rule and to compare it with others. The Court had to delve into the philosophy of golf, the aim of the game and the reason behind its rules.

It is practically impossible to hold a strictly objective democratic debate. The greatest objectivity is to put all subjectivities clearly on the table, look at them, then assess and judge them.

DEMOCRATIC DECISIONS 'LOADED'

This is what good judges have always done in court, politicians have done in Parliament, and presidents in their executive decisions.

The more we deny our personal biases, the less sincere the debate becomes and the more we lie to ourselves.

There is nothing like hanging the hat of beliefs behind the office door, or the moral coat at the court entrance, or leaving the philosophical trousers at Parliament’s car park.

Every important legal or political decision is always charged with moral and philosophical underpinnings. Law is only the frame that holds the picture together, the glue that gives consistency to justice and order.

Democratic decisions are not made in a vacuum. They are heavily loaded with personal beliefs, moral tenets, philosophical stands and personal interests that usually go undeclared, even when they are covered up with a blanket of party policy, legality or objectivity.

Once we are aware of this, we can then venture into the beautiful depth of democratic debate, with respect, tolerance, and the genuine desire to seek the best for the country.

DENYING OUR DIFFERENCES

Sandel says that it is simply not possible to hold meaningful democratic debate if we fail to address the underlying society’s conception of what is worthy to be honoured and what is the essential purpose of institutions.

He concludes that this might be a better way of understanding justice and solving social and moral questions.

There is an urgent need for dialogue in Kenya. Differences should not be the cause of division and conflicts between government and opposition or between the national and local governments, much less on security issues.

Differences have a wonderful potential which is best appreciated in mosaics, where a variety of materials are combined harmoniously to produce wonderful art pieces.

As I sat at KICC and looked around at the public in the KCPF conference, I realised that their concerns, discussions, desires and aspirations were authentic. Such forums are necessary and should be attentively listened to by policymakers.

The denial of the fact that moral, religious and philosophical considerations are at the root of our legal discourse is turning us, in a very subtle way, into a more intolerant society. It is like denying that the bony fish is in the pocket, yet we can all smell it.

Dr Franceschi is the dean of Strathmore Law School. [email protected], Twitter: @lgfranceschi