When The Law Changes Its Name Depending On Who Is Accused

In Kenya, words such as contraband, counterfeit, fake, illegal and illicit are thrown around with the certainty of a conviction and the speed of a political slogan. Once the label is attached, the public is expected to stop asking questions. The trader becomes a criminal, the goods become dangerous, the seizure becomes heroic and the press statement becomes proof. Yet the most important question is often left unanswered: is the law being applied consistently, or is the language of illegality being used selectively against those without influence?

Let us begin with precision. Contraband is not merely another word for an untaxed product. It generally refers to goods whose importation, exportation, possession or movement violates customs or other laws. Counterfeit goods are not simply goods the State dislikes; under Kenya’s Anti-Counterfeit Act, they are products that imitate protected goods or misuse intellectual property in a manner likely to confuse or deceive. Illicit trade is broader still. It covers commercial activity conducted outside the law, whether through smuggling, tax evasion, counterfeiting, false declarations, the movement of prohibited goods, or the abuse of regulatory systems.

Those distinctions matter because careless language creates careless justice. A product may be genuine but undeclared. It may be legal but imported without payment of duty. It may be substandard without being counterfeit. It may be counterfeit without being physically dangerous. When every violation is blended into one dramatic accusation, enforcement stops being a careful legal process and becomes public theatre. The citizen hears one word – illegal – while the State avoids explaining exactly which law was broken, what evidence exists and whether the same standard is used against everyone.

The real anger in Kenya is therefore not that the law exists. Counterfeit medicines, fake agricultural inputs, dangerous electrical products, falsified alcohol and defective vehicle parts can destroy lives, businesses and entire industries. The Anti-Counterfeit Authority reported in June 2025 that Kenya loses more than KSh153 billion annually to counterfeit trade, with health, agriculture, electronics and automotive products among the sectors most affected. This is not a minor problem, and no serious country can afford to treat it casually.

But a serious country must also understand that enforcement loses legitimacy when it appears to have a social class and a political address. When a small trader is arrested before sunrise, photographed beside seized cartons and publicly condemned before trial, the State calls it a crackdown. When politically connected actors are linked to questionable procurement, irregular imports, unexplained wealth, tax disputes, or the loss of public resources, the language softens. We hear of procedural lapses, administrative errors, reconciliation, negotiations, pending investigations and ongoing consultations.

That difference in vocabulary is not innocent. Language is often the first place where unequal justice reveals itself. The poor are called suspects. The powerful are called persons of interest. The poor are paraded. The powerful are invited to record statements. The poor person’s stock is destroyed. The powerful person’s file is reviewed. The poor person’s mistake becomes evidence of criminal character. The powerful person’s conduct becomes a technical matter awaiting clarification.

Read Also: When The Law Becomes Lawless: Murkomen’s SHOOT Orders, Shock The Country

This is how a nation slowly teaches its people that legality is not determined only by the act, but also by the identity of the actor. The same conduct can be described as smuggling when committed by an ordinary trader, aggressive tax planning when organized by professionals, and an unfortunate oversight when associated with political power. The same public loss can provoke a raid in one neighbourhood and a committee meeting in another. The same State that demands immediate compliance from citizens can spend years explaining why accountability for the powerful must follow a more delicate process.

Kenya’s Constitution does not permit this moral flexibility. Article 27 establishes that every person is equal before the law and is entitled to equal protection and equal benefit of the law. Article 10 binds public institutions to national values that include the rule of law, integrity, transparency and accountability. These are not decorative promises for national celebrations. They are instructions on how power must be exercised, especially when the State is investigating, accusing, taxing, seizing property or prosecuting citizens.

Equality before the law does not mean that wrongdoing by ordinary citizens should be excused because leaders are suspected of worse conduct. It means the opposite: every offender should face the same seriousness, every investigation should follow evidence, every accused person should receive due process and every public official should be held to at least the same standard demanded of the public. A country cannot fight illegality by normalising selective legality.

There is also an economic danger in confusing enforcement with intimidation. Kenya’s informal economy is not a side issue; it is the daily survival system for millions of families. Many small traders operate in an environment of high taxes, overlapping licences, complicated import procedures, unpredictable enforcement and limited access to affordable credit. This does not legalise tax evasion or the sale of fake goods. It does, however, require government to distinguish between organised criminal networks and citizens trapped in confusing, expensive or inaccessible compliance systems.

A trader selling unsafe counterfeit medicine should face the law. A manufacturer stealing another company’s brand should face the law. A smuggling network evading customs controls should face the law. But the official who protects that network, the politician who finances it, the officer who takes a bribe, the senior executive who falsifies documentation and the public servant who deliberately looks away must also face the law. Enforcement that arrests the person at the bottom while preserving the person at the top is not justice. It is supply-chain management for impunity.

The fight against illicit trade must therefore follow the money, not merely the merchandise. Cartons do not cross borders by themselves. Counterfeit factories do not operate through magic. Fake excise stamps do not print themselves. Containers do not disappear from surveillance systems without human decisions. Warehouses do not remain protected for years without networks. Every major illicit market has financiers, facilitators, transporters, compromised officials, political protectors and beneficiaries. Destroying products while leaving those networks intact creates dramatic photographs but does not dismantle the business model.

The same principle applies to corruption. Kenya cannot loudly condemn a trader for denying the State a few thousand shillings in duty while treating the suspected theft or waste of billions as an abstract governance debate. Tax justice must run in both directions. Citizens must pay what the law requires, but government must account for every shilling collected. The moral authority to punish tax evasion weakens when public money is squandered without consequences, procurement questions remain unanswered and politically favoured actors appear insulated from ordinary enforcement.

A lawful State must also resist trial by press conference. Seizure is not conviction. Suspicion is not proof. An agency’s allegation is not a court judgment. Businesses can be destroyed by publicity long before facts are tested. Employees lose jobs, suppliers lose money and reputations collapse. Enforcement agencies must communicate clearly, but they must also disclose the legal basis of action, preserve evidence, respect due process and correct the record when allegations are not proved. Power without procedural discipline is another form of illegality.

Consumers, too, deserve more than slogans. If government wants Kenyans to reject counterfeit goods, authentic products must become easier to identify and reasonably accessible. Product-verification systems should be simple. Complaints should receive rapid responses. Agencies should publish clear distinctions between counterfeit, substandard, smuggled, uncustomed and prohibited goods. The public should know which institution is responsible, what evidence is required and how innocent traders can challenge wrongful seizure. Confusion protects both counterfeiters and abusive officials.

Businesses must also accept their responsibility. Brand owners cannot demand public enforcement while pricing legitimate products beyond the reach of most consumers, neglecting distribution outside major towns or failing to educate buyers on authentication. Large companies should support enforcement without turning State agencies into private commercial weapons against smaller competitors. Intellectual-property protection is essential, but it must not become a licence for monopolistic intimidation or the harassment of lawful parallel traders.

The media must be equally careful. A raid is easy to report; a collapsed case is less dramatic. A photograph of seized goods travels faster than a court ruling clearing a trader. Journalists should ask what law was allegedly broken, whether the goods were tested, who owns the claimed intellectual property, whether duty documents exist, whether arrests reached the financiers and what happened to previous cases. Reporting should illuminate enforcement, not merely amplify it.

For citizens, the test is consistency. We should not defend illegality merely because the accused person supports our political side, comes from our community or attacks leaders we dislike. We cannot demand accountability from rivals while manufacturing excuses for allies. Selective outrage is the social foundation of selective enforcement. Once we accept two standards in politics, we should not be surprised when the State applies two standards in commerce, taxation, policing and justice.

The Kenya we need is not a country where everyone escapes the law. It is a country where no one can purchase immunity from it. It is a country where a kiosk owner and a Cabinet-level official know that evidence, procedure and consequences do not change with status. It is a country where agencies are feared by criminals but trusted by citizens, because their decisions are lawful, professional, transparent and reviewable.

That future will require stronger institutions, digital customs systems that reduce human discretion, independent audits of seizures and destruction, public tracking of major illicit-trade prosecutions, protection for whistle-blowers, aggressive pursuit of financial beneficiaries and prosecution of officers who facilitate illegal commerce. It will also require political courage: the willingness to investigate allies, disclose conflicts of interest, publish beneficial ownership and refuse the quiet phone calls that turn criminal files into administrative discussions.

Ultimately, the problem is not the vocabulary itself. Contraband, counterfeit and illicit trade are real legal and economic threats. The crisis begins when those words become weapons aimed downward while accountability becomes negotiable upward. The law cannot demand sacrifice from the powerless and offer interpretation to the powerful. It cannot be rigid in the market and flexible in the boardroom. It cannot arrive with handcuffs for the citizen and appointments for the connected.

Kenya will not defeat illegal trade by destroying goods alone. It will defeat it by destroying the networks of protection around it. It will not restore public trust through louder raids, but through equal consequences. It will not build a culture of compliance by frightening small traders while appearing to bargain with powerful offenders. The rule of law becomes credible only when the public can see that no surname, office, party, friendship or bank balance changes its meaning.

Illegal must mean illegal, whether the act is committed in a roadside stall, a corporate office, a government department or a political residence. Counterfeit must be proved, not merely announced. Contraband must be defined by law, not by convenience. Illicit conduct must remain illicit even when its beneficiaries wear expensive suits and sit close to power. Until Kenya adopts one vocabulary, one process and one standard for everyone, every crackdown will carry the shadow of selective justice. Stay guided.

Read Also: He Carried the Law in His Mind and a Song in His Soul: Why Gerald Otieno Kajwang’ Still Lives in Kenya’s Memory