Who gave the police the responsibility to abandon the criminal procedure as we know it? Who authorised law enforcement agencies to replace the law with fear, procedure with brute force, and the constitution with terror? In a functioning democracy, law enforcement follows the law. In a failing one, it manufactures its own law. Kenya today stands dangerously close to the latter.
Once upon a time, when the police suspected someone of a crime, they issued a summons. The individual was asked to report to the nearest police station to record a statement. That simple step, an embodiment of due process, has been replaced by a concerning routine: masked or plainclothes officers in unmarked vehicles, often armed, appearing in residential estates, taking individuals into cars, and holding them for hours or days without informing their families or legal representatives. What we are witnessing is not the evolution of law enforcement. It is a slide into lawlessness.
The constitution is clear. Article 49 outlines the rights of arrested persons, including the right to be informed promptly, in a language they understand, of the reason for their arrest, the right to communicate with an advocate, and the right to be brought before a court within 24 hours. What some law enforcement agencies are doing appears to contravene these protections. These are not lawful arrests. They amount to detentions outside the legal framework. Such practices are associated with jurisdictions where policing operates without adequate checks and balances.
The use of force, disguise, and nighttime operations are not the hallmarks of a lawful state. They project fear. And fear is a tool of control. Law enforcement risks becoming an instrument of repression under the guise of criminal justice. Those defending such actions cite national security or the urgency to combat crime. But security that disregards the law fosters impunity. A government that fights crime by undermining legal safeguards risks losing legitimacy in the eyes of the people.
We have reached a point where ordinary Kenyans struggle to distinguish between legitimate police work and unlawful detentions. That is the tragedy. That is the danger. Once the line between law enforcement and criminality is blurred, citizens are left defenseless, unable to tell whether the person at their door at 2 am is a law enforcer or an impersonator. This uncertainty erodes public trust in policing and can open the door to lawlessness from all sides.
More concerning is the growing normalisation of such actions. As a society, we are beginning to treat these detentions as routine. The media often reports them as "arrests" without scrutiny. Government spokespeople dismiss concerns as exaggerated. But state overreach begins with silence. When we fail to name these actions for what they are, we contribute to the erosion of our own freedoms. When we are indifferent to reports of unmarked vehicles picking up citizens involved in protests, we undermine constitutional guarantees.
These detentions do not occur in isolation. They often appear politically motivated, targeting critics, outspoken citizens, protesters, and those demanding accountability. It is notable that the same state struggling to address economic grievances is deploying force to silence dissent. This is not about crime prevention. It is about power retention.
Kenya’s criminal justice system is not broken because the constitution is inadequate. It falters because those entrusted with its implementation have failed to uphold it. We do not lack laws. What we lack is consistent enforcement and accountability. Law enforcement agencies are bound by the law. When they operate outside those boundaries, they risk becoming tools of oppression rather than justice.
The national leadership must ensure accountability within law enforcement, disband covert units engaging in questionable operations, and reaffirm the supremacy of the constitution. Failure to act risks taking Kenya down a dangerous path.
This is not a partisan issue. It is not about opposition or government. It is about the right of every Kenyan to live in a country where the rule of law prevails, where arrests follow lawful procedure, and where fear does not dominate households. The police service must be reminded that it serves the people and derives its authority from public trust and constitutional legitimacy.
We cannot claim to be a democratic state while turning security institutions into instruments of intimidation. We must demand better. We must insist on the rule of law from those mandated to enforce it. Because when the law is suspended for one, it is suspended for all. And if we do not speak now, there may be no voice left when they come for us.
The writer is a former Attorney General
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