PRELIMINARY
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[1]. Arbitrariness is typical
of various forms of despotism, absolutism, authoritarianism, and
totalitarianism.[2]
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 define 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 hence against the
constitution because the doctrine of rule of law is among the basic
constitutional principles.
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[3]. 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.[4]
A
country with no rule of law is good as to say such country is under
dictatorship or authoritarian regime. In any authoritarian regime, it’s common
to see breach of laws by state authorities, breach of human rights, no respect
to state governing laws, and political leaders are imposed with unlimited
powers and they can do whatever they want without being questioned or punished
by state tools. The rule of law is a cure to all these problems, the rule of
law requires all people, regardless of their political or economic status, to
respect state laws and be responsible for their crimes. A country to be said is
a country of rule of law, the following elements must be visible in a country
as follows;
SIGNIFICANCE
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. As per the doctrine of rule law, government officials or any
other persons are not entitled to any special privilege or protection against
criminal or civil liability. Unfortunately, In United Republic of Tanzania, president,
speaker of the legislature, chief justice and other judicial officers are
subjected to special privilege and protection against criminal and civil liability.
They cannot be sued on matters they have done wrong if they did it with a good
faith, a question here is how we become sure that a wrong was done in good
faith?
The
amendments of Basic Rights and Duties Enforcement Act[5], The Law Reform (Fatal
Accidents and Miscellaneous Provisions) Act[6] and The Judiciary
Administration Act[7]
came with a lot of changes which actually infringed Article 12 and 13 of The
Constitution of United Republic of Tanzania[8]. Written Laws
(Miscellaneous Amendments) Act[9] came with a lot of changes
which denied citizens an opportunity to hold their leaders accountable for
their wrong doings through court of law. The amendments on The Judiciary
Administration Act also came with excessive immunity over judicial officers
which likely creates class of government officials who are above the law. The
amendments failed to prove any necessity for such protection or immunity.
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
state 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. This is another
significance of rule of law or basic element of rule of law. The doctrine of
rule of law requires every government authority or officials who conducts or
performs administrative duties to carry their activities in accordance to the
laws, he/she must be able to justify his/her actions basing on the laws of the
state. Any government officer, department, institution or board which exercise
a particular activity affecting interests of citizens, must have a legal permission
or else the affected person may resort to the court of law in order to
invalidate the action. 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 require 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.[10]
In
Tanzania we have many laws governing almost everything concerning public
service, political parties, and leadership. Every public officer, both top
officials and the subordinates are regulated by laws and they have to follow
all requirements of the laws when exercising their powers. A public officer has
authority within limits of his powers, when he goes beyond powers imposed to
him, he may face consequences. This rule clearly specifies the powers and
limits imposed to government officials which they must not exceed.
No
arbitrary power on part of government. The principle of rule
of law entails that, government should be conducted within scope or boundaries
of rules and principles which restricts applicability of discretional powers in
public issues. Discretion is the power of a judge, public official or a private
individual 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. [11]
Discretion
may be subject to unfair decision, Dicey on rule of law said, “people
have evil in nature”, people are different in nature, cultures, traditions
and norms, it is likely that through discretion, an officer may make decisions
affecting individuals basing on their personal knowledge or motives which may
not be right either. Laws are set to a standard which is not based on
traditions and norms hence they are in between and are good to all people and
equal to all people and they apply in the same manner. Hence, rule of law is
among basic and important constitutional principle which prevent authoritarian
and abuse of offices which may have really serious damage to the wellbeing of
the citizens.
The
government should not enjoy unnecessary privileges and exemption from the
ordinary law. The Doctrine of rule of law requires that,
there should not be any privilege or unnecessary protection to any individual,
every person must be responsible for his or her wrong doings without being
guarded by the laws. under this rule, even government is required to exercise
its power in accordance to the law, and its officials should not be subjected
to a special untouchable class which enjoys privileges which goes deep down to
infringe Articles of constitution. In this rule, civilians are entitled right
to even sue government in case of breach of their rights by government. Under
rule of law, the government is typically 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.[12]
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 laws with a retrospective effect. Retrospective effects mean
punishing offenders for offences which they committed at the time when they
were not actually offences as per laws. The Constitution of United Republic of Tanzania
prohibits punishments to people for offences which were committed at time when
they were not offences legally established under the laws of Tanzania.[13]
Article
13(6)(c) of the constitution 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”.
Likely,
the above Article impose limits that, a person must not be subjected to a greater
punishment more than that stated by the law at the time when an offence was
committed. This entails that, when there are amendments in law, and if a person
committed a certain crime before amendment, he/she will not be affected by such
amendment basing on the offences committed before amendment. He will be
punished basing on the punishment stated by the law at the time when an offence
was committed but he will be liable under amendment on the future offences.
On
the other hand, arraignment principle is necessary in dispensation of Justice.
No one can be sent to prison without be arraigned before court to answer his or
her charges. In whatever case might be, government should not skip this principle
because it is a basic principle in administration 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 administration of 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)[14]
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. All people who are charged and convicted by court of
law, must only be punished basing on the punishments stated in provisions of
the law, with good intention by the court to provide justice without any
unfairness.
Transparency
is another basic principle or element of rule of law.[15] Transparency is when the
government provides the civilians with all information concerning important
matters of the state, and people are given right to provide their opinion on
basic issues of the state without being threatened or maliciously charged
basing on their opinions. The government must take important opinions of the
citizens and act upon it, a state which hide everything from citizens, or denies
citizens right to information concerning basic issues of the state, that state
cannot be said a rule of law state.
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 activity, he/she
should be able to know or to anticipate or forecast in advance what are the
legal consequences that will flow from it due to the certainty of the laws or
legal stability. A country with uncertain laws cannot be a country which abide
to a principle of rule of law because people may receive different treatment or
punishment under the same law which is actually against a doctrine of rule of
law which requires equality to all people. This principle is particularly
prominent in economic law, where legal certainty may bring about a reduction of
transaction costs and efficient business.[16]
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 provides 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 and no certainty or
stability of the laws.
RELATIONSHIP
BETWEEN RULE OF LAW AND INDEPENDENCE OF JUDICIARY
Article
4
of the constitution provides on separation of powers. Judiciary is vested with
judicial powers in administration of justice. The doctrine of rule of law
requires that, the judiciary must be free from external pressure or interference
from government, media or political parties while exercising its duties. The
article above puts limit and provide duties to three organs of the state which
must be exercised without interference from another organ, there might be
checks and balances but the checks must not go that far to interfere core
functions of another organ. Hence, rule of law and independence of judiciary
are two faces of the same coin and they depend on each other. Rule of law
protects independence of judiciary by setting exclusive powers and duties of judiciary
while judiciary on its side, protects rule of law by quashing decisions by
government which goes against the laws of the state or which exceeds powers.
The court is vested with powers to nullify unlawful government actions and to
declare parliament statutes unconstitutional if they have provisions which goes
against constitution. By doing this, the judiciary protects and reminds
government to abide to the rule of law.[17]
CONCLUSION
The
doctrine of rule of law is one of the basic constitutional principles which set
or establish legal regime or framework through which all public dealings are
handled. The doctrine of rule of law requires all members of the society to be
under same laws and be treated in the same manner regardless of their social
differences. The doctrine is against discretional powers of public leaders on
issue with public interests on a ground that, a human being is evil in nature
and he/she may make decision basing on his/her knowledge and motives which may
have negative impacts to the civilians. The doctrine establishes that, all actions
by government must be backed up with statutory provision and not basing on
their own motives and emotions which may have greater impacts on the interest
of the citizens.
REFERENCE
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
STATUTES
Basic
Rights and Duties Enforcement Act, [CAP 3 R; E 2019]
The
Law Reform (Fatal Accidents and Miscellaneous Provisions) Act [CAP 310 R; E
2014]
The
Judiciary Administration Act [CAP 237 R; E 2011]
The
Constitution of United Republic of Tanzania [CAP 2 of 1977] Art 12 & 13
The
Constitution of United Republic of Tanzania of 1977, as amended [Cap 2 RE:
2002]
ONLINE
SOURCES
Britanicca,
“rule of law”, available at
<https://www.britannica.com/topic/rule-of-law> accessed January 6, 2022
Tanzanianweb,
“elements of rule of law”, available at <https://www.tanzanianweb.co.tz/2021/04/elements-of-rule-of-law-by-johnson.html>
accessed January 5, 2022.
United
Nations, “rule of law”, available at
<https://www.un.org/ruleoflaw/what-is-the-rule-of-law/> accessed January
6, 2022
WJP,
“rule of law”, available at <
https://worldjusticeproject.org/about-us/overview/what-rule-law> accessed
Lawteacher,
“The rule of law concept”, available at <
https://www.lawteacher.net/free-law-essays/constitutional-law/the-rule-of-law-as-political-theory-law-essay.php>
accessed January 6, 2022
Parliament
of Australia, “the rule of law”, available at <
https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Odgers_Australian_Senate_Practice/Chapter_02>
Accessed January 6, 2022
Justia,
“Three Principles to Strengthen the Rule of Law”, available at < Three
Principles to Strengthen the Rule of Law> accessed January 6, 2022
Lexis
Nexis, “Legal Certainty (Non-retroactivity and Legitimate Expectations)”,
available at <https://www.lexisnexis.co.uk/legal/commentary/halsburys-laws-of-england/european-union/the-principle-of-legal-certainty-introduction>
accessed January 6, 2022
Biicl
, “The Importance of Judicial Independence to the Rule of Law”, available at
< https://www.biicl.org/newsitems/6298/the-importance-of-judicial-independence-to-the-rule-of
law> accessed January 6, 2022
[1] Britanicca, “rule of law”,
available at <https://www.britannica.com/topic/rule-of-law> accessed
January 6, 2022
[2] Tanzanianweb, “elements of rule of
law”, available at
<https://www.tanzanianweb.co.tz/2021/04/elements-of-rule-of-law-by-johnson.html>
accessed January 5, 2022.
[3] United Nations, “rule of law”,
available at <https://www.un.org/ruleoflaw/what-is-the-rule-of-law/>
accessed January 6, 2022
[4] ibid
[5] Basic Rights and Duties
Enforcement Act, [CAP 3 R; E 2019]
[6] The Law Reform (Fatal Accidents
and Miscellaneous Provisions) Act [CAP 310 R; E 2014]
[7] The Judiciary Administration Act
[CAP 237 R; E 2011]
[9] Written Law (Miscellaneous
Amendments) Act [ No 3 of 2020]
[10] WJP, “rule of law”, available at
< https://worldjusticeproject.org/about-us/overview/what-rule-law>
accessed
[11] Lawteacher, “The rule of law
concept”, available at < https://www.lawteacher.net/free-law-essays/constitutional-law/the-rule-of-law-as-political-theory-law-essay.php>
accessed January 6, 2022
[12] Parliament of Australia, “the rule
of law”, available at <
https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Odgers_Australian_Senate_Practice/Chapter_02>
Accessed January 6, 2022
[13] Ibid
[14]The
Constitution of United Republic of Tanzania [CAP 2 of 1977] Art 13 (6) (c)
[15]
Justia, “Three Principles to Strengthen the Rule of Law”, available at < Three
Principles to Strengthen the Rule of Law> accessed January 6, 2022
[16] Lexis Nexis, “Legal Certainty
(Non-retroactivity and Legitimate Expectations)”, available at
<https://www.lexisnexis.co.uk/legal/commentary/halsburys-laws-of-england/european-union/the-principle-of-legal-certainty-introduction>
accessed January 6, 2022
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