The rule of law needs an environment that would help it to thrive and we are not cultivating a conducive environment for it to do so.
In the past few weeks, law and order has suffered as violent crime, including daylight muggings, returned to Nairobi with a vengeance.
A day does not go by without incidents of mugging or house break-in by robbers being reported.
For many victims of mugging, all the police can help with is issuance of P3 forms to help in application of replacement of official documents or seek treatment in case of injury.
That’s an indication that the police are either out of their depth on muggings or not bothered to want to tackle it; signalling impunity within the service.
It is very easy to apportion all the blame onto the police, however, but it, in fact, lies with the lawmakers. If the politicians are the first to breach the law, then the ordinary citizens, criminals and police can only follow suit.
Criminals are opportunists and they can feel that there is a vacuum after the exit of the previous government and before the new one settles in.
The in-fighting and actual fights by the lawmakers are also clearly setting a bad example for the citizens when it comes to violence and crime. The recent storming of the Judiciary by Nairobi MCAs is a good example. There are many lawful and civil ways the ward reps could use to get their parking spaces back but they resorted to violence to arm-twist the Judiciary.
It is no surprise that the Nairobi MCAs would behave so aggressively. They are a representation of the aggressive society that majority of Kenyans now inhabit.
The criminal behaviour of lawmakers is not only found in the counties but the National Assembly too. Many Kenyans cannot still get their heads around why some MPs thought a convicted colleague was the best bet to serve from prison—no less as a member of the crucial committee of Parliamentary Service Commission.
The county assemblies and Parliament legislate on laws that they are not prepared to follow themselves. They have made the norm to act either ultra vires or illegally as long as the end justifies their personal means and in contrast to the very laws they make.
The dogged pursuit of CDF funds, despite it being declared unconstitutional by the Supreme Court, no less, proves that Parliament is the epicentre of impunity.
If MPs have no understanding of separation of powers, they really have no right to be in Parliament. The court’s decision on the fund ought to be final—and it should be!
Sets the benchmark
That impunity sets the benchmark for other government agencies. Breaches of the law, therefore, become the order of the day in hospitals, schools and most government offices because those that made the law are showing how they can be broken through impunity.
Hence, negligence in hospitals goes unpunished because those responsible have been shown how to evade responsibility. Auctioneers and land grabbers with fake court orders know they can lay claim to any property they set their eyes on because there is a law they can breach with impunity to evict families from their legally owned homes.
Forced evictions is even more troubling due to the prevalence of fake court orders. How are such papers allowed to continue to flourish—given human rights abuses that ensue, not to mention the bribery involved?
Lack of respect for the rule of law in the country seems to be the preserve of the three arms of government—namely; the Executive, Legislature and Judiciary.
As long as these three arms don’t sing from the same hymn sheet, impunity will continue to be the biggest obstacle to law and order in the country.
We not only have an unequal society in Kenya but also a two-tier legal system. That will be the case for the foreseeable future as long as the criminal justice system continues to be under-funded.
A poorly funded criminal justice system is vulnerable to abuse by corrupt individuals and at the mercy of the Executive and Legislature. Its funding should never be politicised.
The rule of law is “the concept that nobody is above the law and is applied equally and fairly to both the government and the citizens”. In the history of Kenya, laws have hardly ever been applied equally. To use George Orwell’s theory from his book Animal Farm, our country is the place where “all animals are equal but some are more equal than others”. (Orwell clearly had Kenya in mind!).
The way the leadership of the country has trampled upon the law and got away with murder—literally—shows impunity will always have the rule of law by the jugular and its survival is uncertain. But does it have to be?
