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Resist shallow, quick-fit political solutions - they die in the courts

Friday March 3 2017

By LUIS FRANCESCHI
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Harvard University's Michael Sandel says that today’s democracy is suffering from a rise in civic frustration.

In his 2015 Kellogg lecture, he said:

People are frustrated with politicians, political parties, and the alternatives being offered. This frustration is evident in the rise of protest candidates and stems from the fact that political discourse is often neither elevated nor morally engaging, but rather channelled through narrow managerial talks or ideological food fights that inspire no one.

Today’s public discourse is shallow. Problems and solutions are presented and legislated on without proper study. Decisions are taken but consequences are not assessed, and the problems we are trying to resolve grow deeper roots. They remain unresolved and injustice is perpetuated.

The fact that we are in an election year complicates matters further. John Marlan Poindexter, who was National Security Advisor under US President Ronald Reagan, argued that “it is very difficult today to have a reasoned public discourse on any controversial subject. Certainly, election years present a complicating factor.”

In 2010, Harvard University Press published The Disenchantment of Secular Discourse by Steven D. Smith. Smith notes that public officials and political candidates often shape their public discourse through impulsive, shallow remarks and ideas. This approach conveys far more about their ethics than their shallow ideas and solutions.

For Smith, this shallow, quick, and inconsiderate approach may have a lot to do with mistrust in our government structures. It is as if we're trying to satisfy the media’s demand for reply, to “fill the public’s appetite with whatever thoughtless impulsiveness pops into mind.”

THE BLUNDERS OF ENGINEERS

There are many quick, shallow and inconsiderate utterances by public officials in today’s Kenya, too many quick-fit solutions that we have not thoroughly studied. It's as if jumping to conclusions has become our national sport.

Social media is not helping the situation. We often see panic cooked by some inconsiderate remarks from unscrupulous individuals and believe it as Bible truth. On Wednesday, at 9:28pm, I got one such message. It read:

The circular is finally out, all universities to ensure all civil servants and teachers with degrees must have a minimum grade of C+ or a distinction in a KNEC diploma class, any degree that doesn’t meet the above must be recalled and nullified before June, the changes are deemed at helping to cut down the ballooning wage bill as the new salary scales flips in in July.   

It may be a hoax, as many things are nowadays in social media. But this particular hoax is founded on a real problem observed by the Commission for University Education (CUE) during the national audits it recently conducted.

There is no doubt that standards must be upheld because shoddiness has bad consequences. As the popular saying goes, the blunders of engineers fall apart, the gaffes of architects are exhibited and studied, the mistakes of lawyers are filed, and the errors of medical doctors are buried. We should not tolerate mediocrity.

However, I am reluctant to believe that our Public Service would use such a shallow approach to address a bigger problem of mediocrity and corruption in our education system.

DEPENDENT ON PERSONALITIES

The fallacy of our education system is to have pegged quality, aptitude and capacity on the mere result of a national exam while overlooking a life track record, which tells us a lot more than just an exam. More so when we are fully aware that the results of our national exams present huge inexplicable variations from year to year.

It is, in some ways, a gamble between how exams may be marked and who the Cabinet Secretary or the chair of Knec may be. Our institutions are weak, which makes them largely dependent on personalities.

I have been involved in Kenya’s education system for many years and I am a product of it. We all know that an A, B or C is just an indicator of aptitude in specific certain subjects. More often than not, it is largely useless for the exercise of specific functions in the public sector.

This election year, our educational public discourse has become not only shallow but also distorted. Our institutions seem too weak to come up with a comprehensive, well-studied sustainable solution.

The result is random directives, given in an uncoordinated, contradictory fashion. This makes social media thrive, and panic and uncertainty start undermining the trust we are supposed to have in our institutions.

Government agencies should be aware that we have a fast-growing and developing branch of law called Administrative Law. 

In his recently published masterpiece titled Administrative Law, Prof Migai Akech explains with amazing clarity the main principles of administrative law. These are legality, reasonableness, proportionality, participation, justification, legitimate expectations, independence and accountability.

These principles enshrine the limits of administrative action in a democracy and impose themselves on any act of government to foster fairness.

'EMPTY TALK'

Any administrative act defaulting on these principles may be challenged in a court of law and be subsequently declared null and void.    

The term “fair” or “fairness” appears in our Constitution 47 times, and it may be just by chance, but it is precisely Article 47 that encapsulates the right to “Fair Administrative Action”. It says, “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”

Would it be reasonable and procedurally fair to dismiss anyone from any job because he or she did not attain a C+? It sounds absurd and unfair. There are better ways of assessing people’s performance, such as score cards, key performance indicators, target and others.

 Perhaps our administration is suffering the consequences of empty public discourse. What used to be ‘empty talk’ is now being brought to life in the form of shallow measures that can, and will be, easily challenged in any court of law and the Judiciary will certainly uphold administrative fairness as a key to justice.

When this happens, our shallowness will make us blame the Judiciary for issuing decisions that seem to obstruct efficiency in government, when really, a government that did not think through the legality of its actions is at fault.

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