Former CS's woes and broader painful lessons of the rule of law

Our transformative Constitution is a repository of hard-earned historical lessons about power, restraint, and the inevitability of vulnerability. It embodies what scholars describe as “the discipline of power through law,” a system designed precisely because those who wield authority are often least inclined to limit themselves. Constitutionalism, in this sense, is not an abstract ideal but a lived warning that today’s wielder of power is tomorrow’s subject of it. The painful but valuable lesson embedded within the rule of law is that its protections are universal and temporally fluid in the sense that they do not belong to the strong alone but are ultimately most needed by them when their strength fades.

Across Africa, and particularly in Kenya, the erosion of the rule of law has historically followed a familiar, predictable pattern: The politicisation of institutions, intimidation of the Judiciary, and normalisation of impunity. Such erosion, though, is never permanent. The law, though sometimes delayed, reasserts itself with a quiet but devastating impartiality. It is this inevitability that renders the Constitution both a shield and a mirror. It protects, just as it also reflects past excesses onto their authors.

The Kenyan experience demonstrates that undermining judicial independence is often the first step toward institutional decay. Judicial independence, described as the “lifeblood of constitutionalism,” ensures that even the most powerful are subject to legal scrutiny. When political actors delegitimise the Judiciary, they weaken not just an institution but the very mechanism that could one day defend them. This is why scholars argue that the rule of law is inherently counter-majoritarian. It protects individuals not when they are popular and powerful, but precisely when they are neither.

The recent tribulations surrounding former Cabinet Secretary Raphael Tuju provide a vivid and cautionary illustration of this constitutional paradox. At a time when state power appeared firmly aligned with him, Mr Tuju’s remarks directed at the Judiciary reminded judges on live television that the state provides their security and “knows where they live.” It reflected a broader culture of executive overreach and implicit intimidation. Such statements, particularly in a context where judicial officers had faced real threats, symbolised a troubling disregard for the autonomy of the judiciary and its officers. Now, as circumstances shifted, the same constitutional order that was once seemingly expendable became indispensable. The lesson here is neither personal nor partisan; it is structural. The Constitution does not forget, and it does not discriminate in dishing out the painful lessons.

A similar arc can be traced in the experience of former President Uhuru Kenyatta. His public characterisation of judges as “wakora” after the 2017 presidential election nullification by the Supreme Court remains one of the most classic national moments of recklessness of a head of state. However, after power faded, subsequent events, such as the invasion of Northlands and the controversies surrounding the revocation of his son’s firearm licence, underscored the fragility of power once it exits formal office. In these moments, the very institutions once criticised become the only legitimate avenue for redress. This is the constitutional boomerang, the return of legal necessity to those who once dismissed it.

You all remember the epic Fred Matiang’i. His tenure was marked by a hardline approach to security, including rhetoric that appeared to endorse extrajudicial measures in dealing with criminality. While such positions may temporarily resonate in moments of crisis, they often erode the normative foundations of legality. As Prof Migai Akech notes, “impunity, once normalised, does not remain selective; it metastasises.” When Dr Matiang’i later encountered the autocratic lawfare of political prosecutions outside the protective umbrella of office, the Constitution again revealed its dual nature of being unforgiving in its memory. The courts remained the only arena for refuge, nonetheless.

These individual experiences are manifestations of a broader constitutional truth. The rule of law operates on a principle of reciprocity across time. As one enduring maxim reminds us, “power tends to corrupt, and absolute power corrupts absolutely,” but constitutionalism adds a critical corollary to the effect that unchecked power ultimately consumes itself.

This is why the rule of law is often described as both a restraint and a refuge. It restrains those in power today and offers refuge to them tomorrow. The deeper philosophical insight is that constitutional fidelity is a form of enlightened self-interest. It requires those in authority to act not only for the present but with an awareness of their inevitable transition into ordinary citizenship. In this sense, the Constitution is profoundly egalitarian; it collapses the distinction between ruler and ruled over time. As legal theorists have observed, “constitutionalism is the institutionalisation of political humility.” It forces power to anticipate its own decline and to legislate accordingly.

Thus, the painful lessons of the Constitution are not punitive but pedagogical. They teach, through lived experience, that the erosion of legal norms is never contained. Those who encourage and tolerate unconstitutionality in moments of strength inadvertently construct the conditions of their own vulnerability. The Kenyan experience, rich with cycles of assertion and restraint, offers a compelling testament to this dynamic.

I argue, therefore, that the rule of law is not vindictive; it is patient. It waits, often silently, for the moment when its necessity becomes undeniable. And when that moment arrives, it does not ask whether one was once powerful or powerless. It simply applies. That is its pain, and that is its profound value.