Elements of rule of law by Johnson Yesaya

 RULE OF LAW

Rule of law is the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a non-arbitrary form of government, and more generally prevents the arbitrary use of power . Arbitrariness is typical of various forms of despotism, absolutism, authoritarianism, and totalitarianism. Despotic governments include even highly institutionalized forms of rule in which the entity at the apex of the power structure (such as a king, a junta, or a party committee) is capable of acting without the constraint of law when it wishes to do so .

Other academicians defines rule of law as absence of arbitrary power on the part of the government, which means that the administration possesses no discretionary powers apart from those conferred by law . Doctrine of rule of law set standards that, every activity of the Government or institutions or private dealings must be governed by laws. Anything beyond the law is against the doctrine of rule of law .

In some countries, a principle of rule of law covers a wide scope to include democracy and human rights. United Nations defines rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. 

ELEMENTS OF RULE OF LAW

Equality before the law . See Article 13(1) of The Constitution of United Republic of Tanzania . It implies equal subjection of all persons or offenders to the ordinary laws of the land as administered by the ordinary courts of law. Government officials or any other person hold no special privilege or protection against criminal or civil liability (president, speaker of the legislature and chief justice of the judiciary of Tanzania are subjected to special privilege and protection). The Doctrine of rule of law entails that, “no one is above the law”, every man, whatever be his or her rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdictional of ordinary courts. This element of rule of law is applicable to put all civilians as subjects to domestic laws with the same status and with no special privileges when comes an issue of justice.

Everything must be done in accordance to the law. Applied to powers of the executives, this rule requires every government authority which conduct a particular activity or act which affects the citizen’s rights must be able to justify its action as authorized by law which is invariably will be an Act of parliament. Any government officer, department, institution or board which exercise a particular activity affecting citizens, must have a legal pedigree or else the affected person may resort to the court of law in order to invalidate the act. This aspect of the rule of law is known as “The Principle of Legality”, means every Government action must be backed with a legal provision.

The requirements of formal legality requires principles or rules governing a particular matter to be general, publicly stated, they must be applied to everyone in the same manner without double standard. A legal system that lacks these qualities cannot constitute a system of rules that bind officials and citizens.

Absence of arbitrary power on part of executive. The government should be conducted within scope or boundaries of rules and principles which restricts discretionary power. Discretion is the authority of a judge, public official or a private person to make decisions on various issues based on his/her opinion without legal guidelines . It is a public official’s power to act in certain circumstances according to personal motives and influence without regarding principles set in conducting a particular activity.

Dicey on rule of law explained that, human beings have evil in nature, allowing them to use their own judgments in state affairs expose country to unfairness and injustices because the practices in government offices will be in accordance to human behaviors and not a set of rules and principles which uphold equality between the people and equality before the law.

The government or executive should not enjoy unnecessary privileges and exemption from the ordinary law . The Doctrine of rule of law requires everyone to be responsible for his or her wrong doings, under this doctrine, even government is required to exercise its power in accordance to the law. In case government act unfairly regardless of existing laws, an affected party can sue the government to seek relief before court of law. The government is now reduced to an ordinary individual (legal person) and that can be sued through the Government Proceedings Act . Before amendment, the law gave an illogical provision for a consent from the Government itself to be sued but the provision was later amended by Act  which provided a 90 days notice before instituting suit against government 

Rule of law envisages that no one should be punished except for some legally established offence and compliance to arraignment principle.  A state cannot be said to uphold a rule of law while it is said to be breaking this rule by enacting law with a retrospective effect. This means creating offences which they were committed at the time which they were not offences as per laws. The Constitution of Tanzania  prohibits punishments to people for offences which were not offences at the time of its commission.

Article 13(6)(c) provides that, “no person shall be punished for any act which at the time of its commission was not an offence under the law, and also no penalty shall be imposed which is heavier than the penalty in force at the time the offence was committed”.

On the other hand, arraignment principle is necessary in exercising dispensation of Justice. No one can be sent to prison without be taken to court to answer his or her charges. In whatever case might be, government should not skip this principle because it is a basic principle of Justice.

Fairness to the application of law. A state under rule of law, always abides to principle of fairness in administration of justice. This element requires state authorities responsible for justice to perform their duties without bias and malice, all offenders facing criminal charges are to be treated in the same manner without being subjected to torture and inhuman punishments. Intended justice must be reached without any doubt in proceedings and without influence of other motives out the recognized legal procedures.

Again, Article 13(6)(c) applies here, this Article at the second line provides that, “ no penalty shall be imposed which is heavier than the penalty in force at the time the offence was committed”. This article entails that, a person convicted with an offence must be punished as to the punishment said in the statute, punishments which exceeds the one provided in statute is invalid and against principle of fairness.

Transparency is another basic principle or element of rule of law. Transparency is when the government release all information concerning important matters of the state to the civilians, and people are given right to comment on basic issues of the state. The government must take important comments of the citizens and act upon it, a state which hide everything from being known to the citizens, or denial of right to citizens on accessing important information concerning basic issues of the state, that state cannot be said to be governed by rule of law.

Legal certainty. in Black Clawson Ltd v Papierwerke AG,  Lord Diplock stated that ‘the acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it. This principle is particularly prominent in economic law, where legal certainty may bring about a reduction of transaction costs and efficient business.

This principle cement on legal expectation as part of the rule of law. Law must be certain, certainty of the law means, the application of particular statute is in same manner to everyone unless another law provide otherwise. A person who is intending to pursue a certain remedy must be capable to access the scope of effect of ruling to be entered in future. Failure to be able to forecast the impact of a proceeding entails that there is no rule of law.

CONCLUSION

The key insight, in my view, is  that there is no one meaning, but that there is no one manifestation of the rule of law. There are many different ways and textures to how countries manifest the rule of law to how they instantiate a society in which government officials and citizens are bound by and abide by the law. The rule of law in Japan is very different from the rule of law in Germany, which is different from the rule of law in Singapore and in the United States. All of these societies have their own rule of law systems. But, the basic principle of rule of law recognized in several states is that of lack of arbitrariness to the government and equality before the law to all citizens.

REFERENCE

STATUTES

The Constitution of United Republic of Tanzania of 1977, as amended [Cap 2 RE: 2002]

BOOKS

Venn D.A, “Introduction to the Study of the Law of the Constitution”, Macmillan, 1915

Barnett H, “Constitutional and administrative Law”, 5th Edition, Routledge Cavendish, 2004

Weir S, Beetham D, “Political Power and Democratic Control in Britain”, Routledge, 1999

Philips.O.H, Jackson, “Constitutional and Administrative Law”, 8th Edition, Sweet & Maxwell, 2005

ONLINE SOURCES

https://www.britannica.com/topic/rule-of-law

https://www.un.org/ruleoflaw/what-is-the-rule-of-law/

https://worldjusticeproject.org/about-us/overview/what-rule-law

https://definitions.uslegal.com/d/discretion/