Rule of law must be something more

The rule of law is the essence of any democratic state. It ensures that the society is governed based on rules which are widely acceptable and applied fairly and equally to all members of society.

It guarantees both the weak and the strong that they will enjoy their membership in the particular society on an equal plane and that any disagreements that may arise as part of normal human relations will be resolved amicably.

Institutions that are established by the state for governance are expected to operate in accordance with laid-down rules and serve the interests of the public without discrimination or favouritism.

Kenya explicitly reiterated in its Constitution adopted in 2010 that it will be governed based on the rule of law.

This assurance, as part of the social charter that was negotiated to govern the country, was an important demonstration of the kind of society that Kenyans thought they want to live in and their leaders to deliver on.

Development can only be meaningfully pursued and realised within a context of rule of law where rights are guaranteed, respected and promoted.

They say that reality is not always the same as the promise. Ten years later, a review of the country’s operational architecture reveals that adherence to the rule of law has instead of being the upscaled become a differentiated and selectively applied principle.

The rule of law presumes that society is committed to it. However, what happens when government only pays lip service to it.

Former Chief Justice Willy Mutunga in one of his judgements spoke about the utado? philosophy. This is where people do the wrong thing fortified in the belief that nothing will happen to them. They, therefore, are daring those offended with their action to accept that conduct since there is nothing, they can do to challenge that action and that even if they did nothing would change.

This philosophy has permeated the entire rule of law culture and application in the country. It is worse when the disregard is led by government.

Government, under the social contract theory, is entrusted with the responsibility of maintaining law and order. The use of the two terms demonstrates that having an orderly society is quintessential for governing. Such order, however, should not be guaranteed by brute force.

While exercising security power is an important component of the tools available to government, the addition of the word law to the arsenal ensures that it must be exercised within an agreed legal context. This is the guarantee of the rule of law. That even when force must be used to compel obedience, it will be done within reasonable limits and in a legal framework.

A friend of mine recently engaged me in a debate about what happens when the rule of law culture is disregarded.

His point was that he was trained to know that when you have problems in a society you explore modalities set out within the constitutional and legal architecture, including traditional and alternative methods of resolving those disputes.

The state guarantees you that there will always be a solution and that once found the same will be respected. Unfortunately, it is increasingly becoming difficult to take the government’s promise to the bank. He wondered what a citizen should do in the circumstances.

The above developments are not only contrary to but inimical to rule of law.

The President recently complained about the political class disregarding the Covid-19 containment measures while ordinary citizens were being exhorted every day to follow laid-down Ministry of Health guidelines.

The rule of law as a concept was designed to avoid a situation where some sections of society because of social, economic or political status operate on the basis of different set of rules.

We must start making government and leaders focus not just on enforcing the law but obeying the law themselves.