Constitutional Law: Rule of Law in Kenya

The rule of law is the "authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes".^[2] The phrase can be traced back to 16th century Britain, and in the following century the Scottish theologian Samuel Rutherfordused the phrase in his argument against the divine right of kings.^[3] John Locke wrote that freedom in society means being subject only to laws made by a legislature that apply to everyone, with a person being otherwise free from both governmental and private restrictions upon liberty. The "rule of law" was further popularized in the 19th century by British jurist A. V. Dicey. However the principle, if not the phrase, was recognized by ancient sages and philosophers, such as Aristotle, who wrote "It is more proper that law should govern than any one of the citizens".^[4]

Rule of law implies that every person is subject to the law, including people who are lawmakers, law enforcement officials, and judges.^[5] In this sense, it stands in contrast to an autocracy, dictatorship, or oligarchy where the rulers are held above the law.^{[citation needed]} Lack of the rule of law can be found in both democracies and dictatorships, for example because of neglect or ignorance of the law, and the rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it. Government based upon the rule of law is called nomocracy.

All government officers of the Kenya, including the President, the Justices of the Supreme Court, state judges and legislators, and all members of parliament, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader.