• There is a government or private action that is or can be discriminatory and even harmful to some but acceptable because it benefits the majority
• Given the history that informed the handshake, which begot BBI, no one should oppose its implementation.
We thank God political imprisonment, torture and assassinations as tools for taming or otherwise silencing opposition are long gone.
However, that doesn't mean the President is not without an arsenal of other weapons he can use to whip or otherwise nyorosha recalcitrant or misguided opponents of his agenda, especially the BBI.
But to understand how he can use these tools in the manner suggested here, it's important to understand what I call the benign and invidious theories of government and private action.
The gist of this theory is that there is a government or private action that is or can be discriminatory and even harmful to some but acceptable because it benefits a larger group of people as compared to the few that it discriminates against or harms.
This type of action is referred to as benign discrimination.
On the other hand, there is a government or private action that discriminates against or has a harmful effect on most people but only for the benefit of a few. This is invidious discrimination.
For example, if a government employer has two equally qualified candidates for a key position and they happen to be a Kikuyu and a Giriama, and the employer decides to hire the Giriama because he or she believes the Kikuyus are over-represented in government, that would be benign discrimination
This acceptable because the discrimination or harm caused to the individual is outweighed by the benefit of having a more representative workforce.
On the other hand, if the same hiring authority hires the Kikuyu over the Giriama, even in the face of glaring evidence of Kikuyu overrepresentation, then that would be invidious discrimination and therefore unacceptable and unfair.
In the political context, the imprisonment, torture and assassination of people simply because they challenged the government’s wrongdoing and oppression of the people was invidious discrimination on steroids and the discrimination or harm caused served no purpose other than to further the selfish, evil designs of its practitioners at the expense of all others.
However, selective arrest, prosecution for real or even tramped up charges to silence the ring leaders of those opposed to government’s good deeds that benefit the citizenry simply because these individuals wish to advance their own narrow, selfish or backward agenda is benign and therefore acceptable. The individual discrimination or harm these individuals suffer in this case is far more outweighed by the social utility derived from the government’s good deed.
President Uhuru Kenyatta and ODM leader Raila Odinga saw it fit to bury the hatchet and shook hands for the sake of unifying the country.
In furtherance of their handshake objectives, the two agreed to form the BBI task force charged with coming up with proposals to address several key issues that resulted in violence and deaths after every presidential election.
Given the history that informed the handshake, which begot BBI, and given the objectively balanced and competent task force that has transversed the country and developed a report in that regard, no one should oppose its implementation.
Put another way, BBI implementation is a good deed the government must take every possible measure to make sure it succeeds.
Yes, Uhuru and Raila should hit the road to promote BBI.
However, there are those already opposed to the report, even before the contents are made public, by muddying the waters, making passage of a BBI referendum difficult, if not impossible.
If all else fails, the President should and must be prepared to deploy a nuclear option against those opposed to the BBI, who have no idea he has to still legally implement it.
Samuel Omwenga is a legal analyst and political commentator