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.

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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