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State shouldn’t tax the people unless funds are for public good

By Makau Mutua | December 16th 2018 at 00:00:00 GMT +0300

Kenya isn’t the first state to tax its citizens. Nay – Nairobi didn’t invent the practice. But there are do’s and don’ts of taxation. Let’s stipulate first that the state is the servant – not the master – of the citizenry. The state’s existential rationale is simple. It’s supposed to facilitate our lives, not the other way round. The state doesn’t exist for itself. Or because of itself. No. It exists because we, the people, voluntarily deliver unto it some of our inherent rights so that it can exercise them on our behalf. We can snatch those rights back at any time by overthrowing the state. That’s why the right of the people to revolution is natural and inherent. Full stop. 

Put differently, the state doesn’t have a single right that we, the people, didn’t donate to it. This includes the right to tax us. That right – to tax – is framed as an obligation on citizens. But lost in translation is the unarguable norm that it’s citizens who gave the state the right to tax them. The consequence of this argument is that we can take back the right of the state to tax us. In other words, we can reject the obligation to pay taxes.

There are many reasons why a citizenry can refuse to pay taxes. I won’t enumerate all of them. Kenyan potentates – in the legislature and executive – need to appreciate that our duty to pay taxes is conditional. Those with a modicum of education will recall from history books the Boston Tea Party, the 1773 mercantile protest by American English colonialists who objected to taxes imposed by British Crown.

Their rallying cry – and those of others who resented exploitative British colonial rule – was “no taxation without representation.” They flatly refused to pay taxes to the British monarchy, a colonising power in whose state they had no direct representation. The protests led to the American Revolution which overthrew the British to give birth to the USA. Taxes, which are central to a state’s existence, are key loci for a fair and representative government. Only a government that’s responsible and responsive should levy taxes on citizens.

I am not making the argument that Kenyans shouldn’t pay taxes. No – I believe we should all pay taxes. Paying taxes is analogous to a trip to your dental hygienist. I don’t know anyone who’s thrilled to see their dental hygienist for a cleaning. It’s usually a painful experience surpassed only by a root canal by the dentist herself. But both are necessary, and often unavoidable. Try living with a throbbing, smelly, puss-producing tooth and you will cry for your mama. We often feel that awful when paying taxes. But we pay them because that’s how our common good is funded. That’s how we pay for basic services like sewer and garbage collection, security, utilities, education, health, and infrastructure.

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We pay taxes so that the government can run and provide, or facilitate, the provision of basic services. We want the state to protect our core bodily integrity from other citizens and secure our property. It can’t do so without money. The state will have no money unless we provide it. The big question – truly the crux of the matter – is whether a thieving, bloated, over-borrowing, wasteful government deserves our tax shillings. Kenyans were rightly incensed recently when the state raised taxes on fuel.  In turn, the cost of all products went up. Kenyans want to know – and rightly so – into which Bermuda Triangle all the money it’s borrowed from China, the World Bank, and the IMF has disappeared. I tell you where the demon of the deep sea who’s eating our lunch is. First, we simply have a bloated state. Our legislatures are too large and too many.  We’ve almost as many senators and MPs as the United States which has 6.5 times as many people. Throw in the MCAs. Then add the national and 47 county governments. These bureaucracies are simply too expensive for Kenya’s meager tax base. As if that were not enough, there’s massive looting – without consequence – of the public purse. Every day we read of a new gargantuan thieving scandal worth billions of taxpayer money. No one is caught, and when arrests happen, the culprits are slapped on the wrist after fake stunt arraignments.

Unlike Kenya, the United States can print money because it’s the world’s money store. That’s what it did with the so-called quantitative easing after the Great Recession. Kenya’s economy would tank like Zimbabwe’s or Venezuela’s if it tried that trick. We can’t print money. Which brings me to my central point. Taxation must be anchored in basic morality. The state shouldn’t tax the people unless it uses the funds for the public good.  If not, the people should refuse to pay taxes.

- Makau Mutua is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC.  @makaumutua

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