rule of law

Why the rule of law must be enforced

As much as the Constitution provides for vital principles such as the separation of powers, independent offices and constitutional commissions, free speech, leadership and integrity, accountability, participation of the people, devolution, representation and universal suffrage, these ideas mean nothing without the observance of the rule of law.

This is the legal principle that the law should govern a nation, as opposed to the whims of government officials.

It primarily refers to the influence and authority of the law as it is within society, particularly as a constraint upon behaviour of government officials.

Article 27 provides that every person is equal before the law and has the right to equal protection and equal benefit of the law.

ABOVE THE LAW

This means that every citizen, regardless of class, sex, gender, religion, tribe and race is subject to the law, including lawmakers themselves.

It stands in contrast to dictatorships and autocracies, where the rulers are held above the law.

Time after time, Kenyans have witnessed the law being applied selectively and court orders being ignored by those in and close to power.

The State has failed to honour court orders against top officials.

PUBLIC BENEFITS ACT

For instance, on May 13, Interior Cabinet Secretary Joseph Nkaissery was ordered by the High Court to commence the Public Benefits Act within 30 days.

This expired without him honouring the court order.

When the rule of law and equality before the law are compromised, we get a dysfunctional State.

The State must lead by example because if it does not honour the law, ordinary people will likely start disobeying the law.

FUNDAMENTAL RIGHTS

For a country to purport to be governed by the rule of law, laws must be clear, publicised, stable, and just.

They also have to be applied evenly; and to protect fundamental rights, including the security of persons and property.

The only problem I find is that often, Parliament does not appear to be cognisant of the importance of its work, judging from the small number of MPs present during debates and those who have never uttered a word in the House.

On the administration and enforcement of the law, the National Police Service, the National Police Service Commission (NPSC), the Independent Police Oversight Authority (IPOA) and police process come to mind.

POLICE REFORMS

To what extent have they met the expectations and recommendations of the National Taskforce on Police Reforms led by retired Judge Philip Ransley, the Waki report on post-election violence and the Philip Alston report on extrajudicial killings?

The living conditions of police have been improved and their numbers increased in line with international standards; improved salaries and housing; bought equipment and introduced life and health insurance.

However, there has been little accountability in terms of past wrongs.

SENT HOME

Going by the police vetting where those found not suitable are simply sent home without charges being preferred. They retain the ill-acquired wealth and escape prosecution.

The NPSC and IPOA must be strengthened and better funded.

Thirdly, justice should be delivered in a timely manner, by competent, ethical, and independent individuals.

Judicial reforms instituted by former Chief Justice Willy Mutunga have brought about change and the appointment of more competent staff, customer-based service within the courts and building of new and better equipped courts.

EXECUTIVE EXCESSES

Kenyans and experts will have more faith in the Judiciary, especially shielding all against legislative and executive excesses.

However, the elite always seem to get their way and escape justice through courts, which have been fingered as complicit in ensuring that Chapter 6 on leadership and integrity has been rendered moribund.

Linked to this is the role of the EACC and the DPP in investigations and prosecution of corruption cases, which, according to the Controller of Budget, are responsible for the loss of a third of the national Budget.

COMPETENT INVESTIGATIONS

The two are yet to show their seriousness by securing convictions through competent investigations and prosecutions.

It is only through true respect of the rule of law that the coming elections will be conducted freely and fairly.

Political parties, the IEBC, the government, the opposition, security organs, voters and other stakeholders must ensure that the will of the people and democracy prevail on August 8.

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