By Professor Muna Ndulo
The recent Zambia Episcopal Conference Pastoral letter warns us: “we call upon the Government to embrace the spirit and letter of democracy before the nation is plunged into chaos.”
The admonition that Zambia is headed towards a breakdown of the rule of law and its attendant concept of constitutionalism unless it changes direction is a warning we must take to heart and act upon. Or else we run the risk of becoming what Swift warned “in reason, all government without the consent of the governed is the very definition of slavery.” The church also reminds us that multiparty democracy replaced the Kaunda one party dictatorship in 1991 through the heroic struggles of the Zambian people.
In a true democracy, people do not get injured or stoned for exercising their right to assemble or their right to freedom of speech; people are not subjected to constant threats and insults from demagogic party cadres for demanding good governance and accountability from those in power; court orders are not ignored with impunity and the police are professional,act value ethics and police ehoes and take their job to enforce the rule of law seriously and fairly. In this short article I attempt to define the concept “rule of law” as properly understood and its significance in democratic governance.
At the outset it is important to point out that the “rule of law” never has and does not mean “rule by law.” The later concept is devoid of values and in fact even the worst dictatorships such as Idi Amin was one that was ruled by law. One of the most important political and legal conceptions in good governance is the concept of the rule of law. In today’s world, nations from virtually every region recognize that the rule of law and the protection of human rights are critical factors in nation-building and good governance. As Jefferson explained “It is to secure our rights that we resort to government at all.”
Therefore the question that arises is this: what exactly is meant by the rule of law and in what ways can it assist in nation-building, the promotion of good governance, and the protection of human rights. Dwight Eisenhower observed: “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.” There are several examples,-Somalia probably being the most well- known. The rule mandates the elimination of wide discretionary authority from government processes. It means the existence of formal rules which do not involve a choice between particular ends or particular people, and which are there for the use of everyone, for the purpose for which people will decide to use them. The concept assumes the existence of inalienable rights and liberties which governments should not impinge or violate. Predominant among such rights are property rights, the right to free expression, freedom of association, equality before the law, due process, and protection against discrimination. “The very problems that democratic change brings — social tension, heightened expectations, political unrest– are also strengths. Discord is a sign of progress afoot; unease is an indication that a society has let go of what it knows and is working out something better and new” asserted Justice O’Connor of the United Sttaes Supreme Court.
To some extent, the essence of the rule of law lies in its juxtaposition to the “rule of men.” This aphorism is not meant to express the utter absurdity that laws are capable of governing society without the help of men and women. Rather, it seeks to state the following basic principles: that all state power ought to be exercised under the authority of law, and that there should be rules of law governing the election and appointment of those who make and execute policy, as well as the manner in which such policies are made and executed, in order to ensure rationality and fairness in the decision making process. Contrast this state of affairs to a regime of caprice or arbitrariness in which acts or omissions are traceable to the whims of the particular man or woman in power at a given time. The rule of law connotes the use of state power, through rules of law (agreed by the people) for the establishment of an economic and social system via constitutionally sanctioned representative institutions or other acceptable surrogates.
Typically the division and regulation of state power is established through the national constitution. In this sense, a national constitution is a charter of government. It is a body of fundamental principles by which a society organizes a government for itself, defines and limits the powers of the government, and regulates the relations between several government organs inter se and defines the relations of the state with its citizens. The rule of law implies a measure of predictability in the conduct of state officials by the prior existence of a basic law covering the subject-matter that falls within their fields of operation. It demands the precise definition of the roles and status of such public officials by law. It commends the creation of control devices to ensure that public officials abide by these norms, and if they do not, their actions are rendered invalid. It embraces procedural guarantees necessary to assure fairness in the adjudication of disputes and the application of sanctions. It demands equality of treatment before the law of all persons in the application of a general rule to all cases where, according to its content, the rule should be applied. Unifying all elements of the juridical quest for legitimacy are the demands for the existence of legal barriers to governmental arbitrariness, which can be defined as the absence of legal authority for acts done, and the demand for some procedural safeguards, especially during the trials of individuals alleged to be in conflict with the law. It means that the government, in all its actions, is bound by rules fixed and pronounced beforehand. This make it possible to foresee with certainty how an authority will use its coercive power in any given circumstances, and thereby allow an individual to plan his or her affairs on the basis of this knowledge.
The aim of the rule of law is to limit and check the arbitrary, oppressive, and despotic tendencies of power, and to ensure the equal treatment and protection of all citizens irrespective of race, tribe, class, status, religion, place of origin, or political persuasion. It implies a legal framework that is fair, impartial (particularly in regard to human rights, public security and safety), and that legitimizes state actions. Authority is legitimate if there is an established legal and institutional framework, and if decisions are taken in accordance with the accepted institutional criteria, processes, and procedures.
In every country a national constitution articulates the vision of the society, defines the fundamental principles by which the country is organized, and distributes power within it, and plays an important role in nation-building and consolidating the nation state. The idea of a constitutional democratic government, or constitutionalism, connotes a government defined, regulated and limited by a constitution. Constitutional democracy is founded upon the notion of checks and balances, namely state institutions: the legislature, the judiciary, and the executive-while operating independently of one another, act to check each other’s operations and balance each other’s power. In essence, all three institutions are duty bound to uphold the rule of law. If a government constituted by a written constitution can only have such powers as are granted by its constituent instrument, then we must accept, as a practical consequence, that the constitution, in granting powers, can also, and must by necessary implication, limit them. In other words the constitution is something antecedent to government and connotes a system of fundamental principles according to which a nation or state is governed. In this sense, a constitution embraces not only a framework of government, but also the relations of the government to the individuals that comprise the nation or state.
The rule of law is enforced by the judiciary. That means we have to have an independent judiciary, and this entails judges who can make decisions independent of the direction in which the political winds are blowing. The judiciary in accordance with the constitution and the nature of its functions is the one and one government agency that is called upon to protect human rights and advance the rule of law, accountability and transparency in government and the criminal justice system. The rule of law is effective when it is impartially and effectively applied. Court decisions have to be obeyed without question. A government operating under a written constitution has no more power that is granted to it by the constitution, either expressly or by necessary implication.
The mark of good governance consists above all else, in its effect in nurturing the best qualities in the people. The best form of government is that which tends to foster in the people initiative and inventiveness and the steady improvement in their overall intellectual and moral qualities, since on these depends in turn the success of the government in maintaining and promoting economic development and the well-being of the society. It is the good qualities of the people that supply the moving force that operates the machinery of the government. .
Judged by these criteria then, a government of absolute or unlimited power is intrinsically bad, being inherently incapable of nurturing and promoting the best qualities in the people. Its inherent effect, not merely its natural tendency, is to create indifference, discord, apathy, and passivity in the people. These negative qualities are necessarily “implied” in the very idea of absolute power and result inevitably from the lack of public participation in governance. An absolute government creates other evil propensities among the people. First it divides rather than unites. A still worse evil is the capacity of absolute power to corrupt. The famous saying by Lord Acton that “power corrupts and absolute power corrupts absolutely” represents a universal truth, founded upon universal experience.
This universal truth applies to Zambia. Repression of individual liberty is inseparable from a dictatorship. In a dictatorship, all expressions of opinion, all associations, and all political activities, critical of its rule, are viewed as hostile to the interests of the state and dangerous to its security, and must therefore be repressed. A dictatorship does not depend on popular support for legitimacy. It supplants popular support with the captures the state. The capture of the state is characterized by a patronage driven system in which a small ruling elite, political associates, legislators and public servants are provided with jobs in return for loyalty and obedience regardless of their performance and qualifications.
The rule of law can only operate where there is a clear commitment by leaders to operate within the law in both public and private interests. Parliament, the police and the executive must obey court rulings. Where the rule of law applies no one is above the constitution; not the President, not Parliament, or the Executive. Every government action, law or policy must conform to the constitution. The Julius Nyerere at the height of public demands for the punishment of soldiers who had mutinied against his government in 1964 is called for here. Resisting the public call for retribution against the soldiers without due process Nyerere famously stated: “To interfere with the courts’ decision would be to do exactly the things for which the nation condemned the soldiers.-to abrogate the law. The rule of law is the basis on which rests the freedom and equality of our citizens. It must remain the foundation of our state. We must not allow even our disgust with the mutineers to overcome our principles.” The country of our dreams should be a country that is known for unity, liberty, tolerance, and rule of law. It should be a country where the citizens and not the politicians are sovereign.
The Author, Muna Ndulo is a Professor at Cornell Law School;
Honorary Professor of Law, University of Cape Town and Free State University South Africa; and,
Director, Cornell Institute for African Development)