Significances of rule of law.

 

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

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[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]

[8] The Constitution of United Republic of Tanzania [CAP 2 of 1977] Art 12 & 13

[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

[17] 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