Who maintains the Rule of Law?
“Can you deny that this act of escaping which you are contemplating you intend, so far as have the power, to destroy us, the laws and the whole state as well? Do you imagine that the city can continue to exist and not be turned upside down, if the legal judgements which are pronounced in it have no force but are nullified and destroyed by private persons?”
It was Aristotle who once famously remarked: “The rule of law is to be preferred to that of any individual.” These words, albeit ancient, still resonate and capture the essence of the subject matter even in our contemporary times. The liberties and rights of individuals are of paramount importance in any civilised society. However the function of the law, will be void if there are no institutions to uphold it. The rule of law, thus, must serve as the guiding code that defines the validity of legal institutions.
What is the rule of law
The rule of law as a legal doctrine is highly controversial and somewhat subjective; making it virtually impossible to define. However, when it is manifested in one form or the other, it is quite easy and simple to identify its constituent elements. The classical formulation of this doctrine as posited by Lord Coke CJ in 1608 was to the effect that, the law was to be supreme; and that the monarch was him/herself to be subjected to the law of the land.
The essence of the rule of law is thus sovereignty and superiority of the law over man. The rule of law insists that every person, irrespective of rank or status in society, should be subject to the law. For the rule of law to be effective, there must be established clear institutional benchmarks (some standard, even if tentative, by which success, failure, and progress are to be measured, and through which accountability can be exercised effectively): indicators of success applicable to particular legal institutions, such as the judiciary, law enforcement, the legal education system, the prosecutorial system, the penal system etc.
According to legal scholar Joseph Raz, the rule of law is a formal and procedural approach that must abide by eight principles. The principles suggest that the law should be general, consistent, written by executive members of government. Furthermore the courts must exist as a separate judiciary body, include the rules of natural justice, have reviewing power of administrative bodies, be accessible to all i.e. efficient, and relevant parties i.e. police, courts, and prosecutors, should not be granted excessive discretion.
With all of these so-called ethics in mind, one must keep in perspective the rigidity of these guiding principles. They serve as guidelines; however they are not necessarily corresponding of ethical guides in the moral sense. Thus, we arrive at the main and fundamental idea of the rule of law; it serves to secure that the law functions in an orderly manner thus implementing order as well. Most of all, it must be equally applied to the best extent possible without compromising the legal institution’s discretionary and influential position.
The rule of law, not the arbitrary decisions of government officials, has constituted the foundational underpinning of all democracies for years. In every democracy the law rules and every person from the head of state to the ordinary citizen in the street is subject to the law in equal measure. No person in a democracy is above the law and the law should be public, blind, open and accessible to all without discrimination. Neither status nor station in life, ethnicity, race, gender, religion should compromise the rule of law.
The rule of law has become an effective safeguard against abuse of power by individual rulers and guaranteed civil liberty and human rights. Too often, however, the lack of clarity regarding the specific duty bearers to uphold the rule of law in particular national contexts has resulted in catastrophic failures in the application of the principle and inflicted lasting damage on the rights of citizens.
Africa’s struggle for democracy and the rule of law
Within the past quarter century the people of Africa have successfully struggled to eliminate autocratic political systems founded on personal rule and ushered in democratic political systems constructed on the foundation of the rule of law. There have been remarkable political, economic and social outcomes in the form of steady economic growth, increased inflow of direct foreign investment, sustained political stability in most countries and better protection of civil liberties and human rights cases. Democratic breakdown and regression have been few and far between.
Current trends in rule of law violation
Africa has made modest democratic gains. Majority of African people regularly choose their political leaders in free elections and periodic power turnover has occurred in several countries. Even in the face of these modest democratic achievements the rule of law has come up against severe challenges in all regions of the continent.
Some countries have experienced flagrant disregard for the rule of law due to post-election conflict as happened in Kenya (2007) and Cote d’Ivoire (2010) Perpetrators of post-election violence including, in most cases, cold-blooded killings of innocent fellow citizens, have gone unpunished. This kind of impurity always happened in contexts where perpetrators belonged to the “correct” political camp or had favoured ethno-regional associations. Many innocent lives have been lost in vain and nobody was held to account.
Too many instances have also been reported where critics of government and public officials who have lost favour with government have become targets for witch-hunting and victimisation by anti-corruption bodies.
The most blatant stab in the back of the rule of law in Africa’s current political scheme of things is a crazy drive towards removal of presidential term limits by greedy presidents determined to keep themselves in power for an indefinite period, a sad return to Africa’s dark authoritarian past. The sudden removal of Blaise Campaore from the presidential seat in Burkina Faso for attempts to tamper with term limit should serve clear notice to other African leaders who are heading in the same direction that African people are in no mood to countenance any authoritarian fiddling with the rule of law.
