Last week, Kenya’s Opposition, NASA, made good its threat to boycott products from certain companies they perceive to be pro-government or the Jubilee Party. To further actualise their “resistance” against these companies, NASA urged its supporters to migrate to other firms with immediate effect.

In doing so, NASA was following a path trodden by some civil rights activists in other jurisdictions to pursue change in circumstances quite different from the Kenyan context. The use of Boycott, Divestment and Sanctions (BDS) Campaign against Israeli products in the West promoted by the Palestine Liberation Organization (PLO) and its surrogates, stands out as a more recent application of this tactic. 

Safaricom, whose net worth grossed over Sh1 trillion this year is a public company owned by Kenya government, Vodafone UK, and the Kenyan public. With a customer base of over 21 million people consuming its voice, data and money transfer services, Safaricom has placed Kenya on the map as a world leader in harnessing mobile technology.

Targeting M-pesa

According to research, M-pesa, with a 58 per cent lead in mobile banking, is a remarkable example of how financial inclusion of the unbankable, through mobile technology is transforming lives of the most disadvantaged and marginalised. Moreover, Safaricom has been the leading tax-payer to government since 2012.  Undoubtedly, NASA’s call for boycott if heeded, will impact on Safaricom’s business, and compromise the company’s contribution to the economy.

NASA grounds their boycott campaign on the constitutional right to free expression. However, without sanctifying their view, NASA reasons that Safaricom and the other two companies are pro-Jubilee and were somehow responsible for NASA’s electoral loss, thus the decision to undermine these businesses through the boycott campaign.

While appreciating NASA’s view, it must be asserted that Safaricom and its shareholders equally have a right to property that is constitutionally protected. No doubt, NASA’s call will reduce the company’s income, and shareholders’ dividends, both of which constitute property. There is therefore a clear clash between free speech rights of NASA and its disciples vis-a-vis the constitutional right to property of Safaricom and its shareholders.

Thus, this begs the questions; Is NASA’s call, which has such deleterious impact on the targeted companies legally permissible? Can one commit an act that has an injurious impact on another’s property without attracting legal culpability?

In a society with constant social and political contestation between different actors, a property rights system would be incomplete unless it defined the limits of permissible interference with property interests. One of these limits must be the right to enjoy and maximise one’s property free from wrongful interference or harm by others.  In this uncertain environment, the Law of Torts perhaps sheds light to the current boycott campaign’s impact on commercial interests of the three entities.

Any first year law student, in the course of their study of the law of torts, will come across the principle of negligence.  The success of negligence claim requires proof of four elements. Plaintiff must show, that the defendant owed her a duty of care; and, that the defendant breached this duty. Then, the plaintiff will need to prove that the defendant’s conduct was the proximate cause of her injury, and that this injury is capable of compensation.

Lord Atkin in the famous 1932 case of Donoghue V Stevenson noted the following in relation to the duty of care: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.”

It should be unambiguous from the foregoing that political parties under the NASA umbrella, which are constitutionally enjoined by Article 91 to promote national unity and comply with values and principles of the Constitution, cannot escape legal liability arising from commercial losses occasioned by their boycott campaign upon the three companies.

Certain actions and omissions by public bodies and their officials must be deemed impermissible by law and policy. To think that NASA officials have an untrammeled latitude to do and campaign as they please notwithstanding the injurious impact of their conduct on the health and welfare of others is to invite a Hobbesian existence, which the very idea of government is designed to undermine. Accordingly, the social value of free speech must not present excessive risks to property rights of others.

 

Dr Sing’Oei is an Advocate of the High Court of Kenya and a Legal Adviser, Executive Office of the Deputy President