There is an emerging worrying trend that involves unjustified differential treatment with regards to the Covid-19 Containment Regulations. The political elites who are supportive of the political faction aligned to President Uhuru Kenyatta and the ODM Party Leader- Raila Odinga are allowed to disregard the containment measures while those in opposing political camps and the common wananchi are either brutalised by the police or detained in quarantine centres for breaching the said measures. This selective application of the law erodes the constitutional value and principle of the rule of law and erodes the legitimacy of these measures in the eyes of Kenyans.
The very meaning of the constitutional value and principle of the “rule of law” is that everyone must abide to the demands and terms of the law, that no one is above the law, and that all Kenyans are equal before the law. This means that even politicians aligned to the political faction represented by the President and Hon. Odinga must comply with the Covid-19 Containment Regulations. They are not exempted from being law abiding on account of their political alignment.
The way to entrench a culture of compliance with the law is to ensure that law – enforcement agencies treat (and are seen to treat) everyone equally. It is thus jarring to see that the Chairperson of the Council of Governors, Hon. Wycliffe Oparanya, Cabinet Secretary Eugene Wamalwa, and Cotu Secretary General Francis Atwoli, continue to convene and attend political gatherings that have been outlawed without any consequences yet the Senator for Bungoma Hon. Moses Wetangula and his supporters are brutalised for doing exactly the same thing.
The failure to enforce the Covid -19 regulations with respect to regime friendly politicians harms the legitimacy of the legal system. It reduces the trust between the public and the law enforcement agencies, which bodes poorly for generally getting citizens to be in the habit of complying with laws.
In the Kenyan context, these questions about favouritism in law enforcement are important because we have a history of regime biased and unfair criminal justice system. We cannot afford to misstep, not least during a pandemic when we need everyone to trust the state, and to respect the authority of the state, including the law enforcement powers of the police.
It is the position of this publication that Kenyans will only accept the limitation on their liberties if the limitations apply to everyone. If the government continues to apply the Covid-19 regulations selectively, then it will lack the moral entitlement to ask Kenyans to continue abiding with the Covid-19 public health measures.