By Victoria Tabut LLB (Hons)
INTRODUCTION.
In regard to this reflective response, the jurisprudential school that mostly influences my thinking is the Marxist school of thought. While attempting to analyze this jurisprudential thought, I shall tackle the issue of whether or not Kenya should embrace and incorporate Marxist ideologies in their Law and society. The next paragraph will focus on my views about Marxism and the interaction of Kenya with said concepts and ideologies with comparison and contrast with other nation states. This part will utilize the historical and anthropological schools by analyzing Kenya’s history and determining the possible prospects for the future in regard to Law.
MARXISM IN KENYA.
As earlier stated, this part of the essay will focus on my general views about Marxism and related concepts, its manifestation in Kenya as well as other parts of the world. The Marxist school incorporates many theories but I shall focus on four theories; the materialistic conception of history, the concept of class, the base and superstructure concept, the concept of dialects respectively[1].
Pre-colonial Kenya, like many parts of Africa, had a communal based system for property ownership and labour was provided by the general population[2]. During colonial times[3], the production forces changed and so did the production relations. Means of production was limited to cash crop farming and ordinances passed by the Legislative council (as the queen’s agent)[4] regulated Africans’ production through imposition of high taxes and limiting loans[5]. This is the danger of a positivist approach, where law can be used as a spear to commit injustice as well as a shield to defend it. This would shift communalist Africa to a capitalist one, and this was carried on post colonialism when Jomo Kenyatta signed the Sessional Paper No. 10[6] of 1965 to incorporate capitalist tenets in Kenya. There was a dawn of the land grabbing age by both Kenyatta and Moi together with their allies; which would pour into ownership of industries and financial institutions as capitalism stages advanced in this respective manner[7]. The reason behind this is the knowledge that the controlling classes indeed controlled even in the legal realm.
Class struggles, the worst evil of non-marxist societies, are created on lines of race, ethnicity, gender and elitism. This is done through improvishment of the ruled class. The inefficiencies of this system are slowly being realized and attempts of improving it (though futile) are being put in place such as affirmative action programmes in the 2010 Constitution of Kenya[8].
Laws created by this adopted system are in no way a reflection of sociological needs as should be in the sociological school; but instead codify the interest of the ruling class. For instance, on November 25th of 2014, Parliament awarded Safaricom a 149 billion shilling contract for security surveillance installation following the Westgate attack without the required open bidding process[9].
In response to monopolization and oligopoly domination coupled with the lack of protection of the proletarian’s interest, the dominated would attempt to rise in opposition led by the formation of the Kenya People’s Union by Oginga Odinga in 1969 that promoted the Marxo-Lennin ideologies[10]. Communism was considered treacherous and saw many imprisoned in 1975-1978[11].
It is clear that law is indeed the command of the ruling class and will continue to be so if the current dysfunctional toxic system is upheld. Change must be incorporated no matter the opposing forces because a revolutionist can be killed but never a revolution[12]. Amilcar Cabral is of the view that the death of capitalism is inevitable and was seen in the 70s with the fall of the dollar and soon the stage will shift to a socialist one; amidst resistance just like the feudal system withered into capitalism[13]. My recommendations will be illustrated in the last paragraph on the conclusion.
CONCLUSION.
As seen through history and current society of Kenya, the theory of Marxists on class struggles, domination of the proletarians, and law as a reflection of the ruling class is evident. This part, as earlier stated will give appropriate prospects for transformation. The way forward, as suggested by Marx is to adopt a socialist system as a means to an end which is communism[14]. This has been adopted in states such as Venezuela under Hugo Chavez; Cuba under Fidel Castro; and Nyerere’s Ujamaa policy[15]. The question would remain; what next after communism and is it possible to achieve this? It is one thing to advocate for welfare but totally different to allow the state; as a power tool; to wither away. Even the Ujamaa policy tended to shift to a capitalist approach once all social welfare problems had been cured[16]. Communism would seem impossible to achieve[17], but if it can be; it would either be testament to the 2nd coming of Christ because of the pure bliss that would be achieved; or the more realistic one is that it would revert to the status then individuals would again come together to form a social contract. In essence, as the concept of dialects would state, it is one cycle of life or better yet an unending dance of death. Still, in the words of Thomas Sankara, we must dare to invent the future[18].
Bibliography.
1. Omony J. Paul, key issues in Jurisprudence, an in-depth discourse on jurisprudence problems, 1st Edition.
[1] Omony J. Paul, key issues in Jurisprudence, an in-depth discourse on jurisprudence problems, 1st Edition.
[2] J. Vansina, A Comparison of African Kingdoms, Africa: Journal of the International African Institute (1962), pp. 324–335
[3] J. Forbes Munro, Maritime Enterprise and Empire: Sir William Mackinnon and His Business Network, 1823–1893 (2003)
[4] Kenya Legislative Council: Polling For European Seats" The Times, 4 April 1934, p11, Issue 46719
[5] Rodney, Walter (1972). How Europe Underdeveloped Africa. London: Bogle-L'Ouverture.
[6] Sessional Paper No. 10 of 1965, on African Socialism and Its Application to Planning in Kenya.
[7] http://newint.org/blog/majority/2015/02/11/kenya-land-grabbing/
[8] Constitution of Kenya, 2010.
[9]http://www.reuters.com/article/2014/11/25/kenya-security-safaricom-idUSL6N0TF1A520141125
[10]Bethwell A. Ogot, William Robert Ochieng': Decolonization and independence in Kenya, 1995
[11] Anastakis, Dimitry, ed. The Sixties: passion, politics, and style (McGill-Queen's Press-MQUP, 2008.)
[12] Thomas Sankara.
[13]N. Brown, Amilcar Cabral’s Theory of Class Suicide and Revolutionary Socialism,2012/10/23
[14] Omony J. Paul, key issues in Jurisprudence, an in-depth discourse on jurisprudence problems, 1st Edition.
[15] Claessens, August (April 2009). The logic of socialism. Kessinger Publishing, LLC. p. 15.
[16] Nyerere, Julius K. Ujamaa. English Ujamaa--essays on socialism. Dar es Salaam, Oxford University Press, 1968.
[17]Bertell Ollman Marx's Vision of Communism
[18] fyeahthomassankara.tumblr.com/A tumblog dedicated to the works, words and life of Thomas Sankara: Marxist, revolutionary and President of Burkina Faso, 1983-1987.
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