The rule of law is said to be central in the proper functioning of any democratic country; and the use of arbitrary power in any democracy is an outrage to the spirit of rule of law. In a democracy, constitutional limits on power require the subjugation of state authority to the country’s laws as established through popular consent and adopted by the people’s representatives as determined in free and fair elections. This is the meaning of the often cited phrase, “a government of laws, and not of men.”
Secretary- General of the United Nations defines the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the state itself are accountable to laws publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights, norms and standards.” Consequently, this requires measures to ensure adherence to the principles of supremacy of the law, separation of powers, participation in decision making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.
Kenyan 2010 Constitution is richly endowed with clear provisions on separation of powers. It establishes the institution of the three arms of the government, provisions relating to the exercise of checks and balances, independence of the same arms of the government and with regards to the co-relation between them. Being the supreme law of the land, it binds everyone under it and all state organs and arms of the government. All other laws are therefore required to be in conformity with it, and incase any is found in violation of any provision of the Constitution, particularly, the fundamental rights, is declared void.
The Constitution also incorporates the principle of equality before law and equal protection of laws enumerated by Dicey under Article 14. It realises that without the rule of law, there is likely to be either a dictatorship or mob rule. Some revolutionary thinkers have extolled mob rule, or anarchism, as the highest form of political and social justice. In reality, mob rule has meant violence and political chaos; indeed, it creates the very conditions that give rise to dictatorship, the exercise of arbitrary power, and the wholesale denial of individual rights.
However in this country, evolving democracy is a tragedy. As we grapple with the implementation of the new constitution, many challenges emerge about the government’s adherence to the rule of law in many of its activities. Whether in establishing security or appointing individuals into different public offices, a question begs for answers, how far is the government itself complying to the rule of law?
In Kenya we tend to measure ourselves on law thresholds and fail to realize that if we want to be counted among the committee of nations, then we must do more by being subscribers to the rule of law. Rule of law is not a constant, and is often reshaped by social discourse and the changing attitudes and values in a society. It is often an integral part of a social contract forged between the people and government. The core to the rule of law is the principle of legality, within which all public actions unfold in terms of laid down procedures. If we claim to be defenders of the rule of law, we should first question the actions of our government and public officers.
Kenya is at a war with herself. Her story is often not told by her people, but by foreign individuals and media organizations. On a global scale, the latest World Justice Project (WJP) report published annually by an independent, multidisciplinary organization working to advance the rule of law around the world puts Kenya 84 out of 102 countries measured with regards to constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice. It is clear that the powers of the government and its officials and agents are supposed to be limited and held accountable under the law; however, in Kenya we are struggling with these issues.
As much as reform process and the new legislation governing the police has enhanced recognition for the rule of law, there are still instance where the police do not follow it. Example is the recent use of excessive force against protesters where lethal force is unwarranted. The police enjoy discretionary powers that they always misuse while in their duty of assisting the office of the prosecutor in bringing accused to book through investigations.
The rule of law also has other facets, one of which is that disputes of citizens will be decided by Judges who are independent and impartial; and that disputes as to legality of acts of the Government will be decided by Judges who are independent of the Executive. An independent judiciary is therefore relevant for settling conflicts between various organs of government. In the absence of an impartial arbiter, conflicts between government branches are most likely to develop into simple power games. An independent judiciary can keep them within the rules laid out in the constitution.
Finally, the rule of law implies that government authority may only be exercised in accordance with written laws, which are adopted through an established procedure. The principle is intended to be a safeguard against arbitrary rulings in individual cases. The rule of law is fundamental to individual freedom and democratic order, whether it is parliamentary or presidential form of government.