The United Nations (UN) refers to the Rule of Law as the principle that no one is above the law. English and Stapleton (authors of the human rights handbook) have also defined the Rule of Law as a state in which people are governed according to just and fair laws, which apply to all people equally and not a government decree disguised as law. According to the world justice project, one of the rule of law principles is “the process by which the laws (in a democracy) are enacted, administered and enforced is accessible, fair, and efficient.” In addition, the UN affirms that the rule of law is essential to political stability, international peace, and security. Furthermore, the rule of law helps achieve social-economic progress and development; and protects people’s rights and fundamental freedoms (UN). Over the years, the UN has fostered the rule of law at the international level by consolidating and developing a global framework of norms and standards (United Nations). In South Africa, the supremacy of the constitution and the rule of law’ is one of the founding values of the country’s democracy (Institute for security studies (ISS)). This is because the rule of law supports and ensures the protection of human rights. Democracy is encouraged when the rule of law promotes accountability of elected officials through the limitation on the exercise of power (ISS). The principle that governs the rule of law must be clear, open, and applied without preference to anyone (UN). This principle is very crucial for the success of any country as it provides a transparent national system that is to be applied justly and fairly to everyone (ISS). Without this, the system will gradually lose public trust and credibility, which will invariably increase criminality and instability, putting everyone at risk. This implies that the effectiveness of democracy in every country is determined by its adherence to the basic principles.
According to ISS, everyone is subject to equal legal rules regardless of political or economic status. However, in Maswanganyi’s publication (the author of the rule of law in South Africa), it was acknowledged that “during the apartheid era, the white South African legal community was divided on what constituted the rule of law along predictable lines.” Maswanganyi’s publication further states that “a liberal minority criticized the government for non-compliance with the doctrine of the rule of law and criticized the courts for not defending the rule of law.” However, it is essential to know that the rule of law serves the public interest. “It is a system where laws rule and not men” (as expressed by Mortimer Sellers, Professor of Law at the University of Baltimore). Hence, it is essential to understand why the rule of law matters. The following section briefly discusses some significant reasons why it matters.
Why it matters
The World Justice Project explains what a society without the rule of law looks like, which includes “Officials disobeying court orders systematically, magistrates receiving anonymous death-threats, independently-minded judges are lambasted by high-powered government officials.” Furthermore, laws designed to protect employees in dangerous workplaces are widely flouted, and bribes are commonplace (as The World Justice Project expressed it). Hence, to ensure that this does not happen in South Africa, it is essential to protect and promote the rule of law. Below are some of the benefits of promoting the rule of law.
The rule of law helps to prevent arbitrary judgments, tyranny, and oppression and secures justice. According to the UN, “the rule of law ensures that international law and the principles of justice apply equally to all States and are equally adhered to.” The World Justice Project states that abiding by the rule of law will make society safe and help keep the private and governmental power part of the solution rather than part of the problem.
The rule of law ensures that human right is respected. According to the United Nations, everyone is born equal in dignity and rights. All human beings are entitled to all the rights and freedoms, without distinction of any kind, such as gender, colour, race, religion, language, political, or birth. For example, the rule of law ensures that women thoroughly enjoy the same benefits as men based on equality. Also, the United Nations explains that “a strong rule of law, which protects human rights, helps prevent and mitigate violent crime and conflict by providing legitimate processes for the resolution of grievances and disincentives for crime and violence.”
The rule of law ensures equality, stability, accountability, and access to justice for everyone. Accountability improves public confidence in government performance as the government officials are accountable to the citizens, stakeholders, mass media, non-governmental organizations, and higher authorities in the institutional chain. This makes the rule of law to be valuable because it limits the arbitrary power of those in authority (Mortimer, Social Science Research Network)
The rule of law compels “the formation of good and equal laws, an impartial execution, and faithful interpretation of them, so that citizens may constantly enjoy the benefits of them, and be sure of their continuance.” Says John Adams (The great constitutionalist).
The concept of “the rule of law” affects everything about the people, such as how people live and where they work (UN). Thus, a strong rule of law enables stability in society as all rights are respected and protected. The United Nations explains what to expect in a strong rule of law which includes the following:
“Clearly written and easily accessible laws that create certainty and enforceability of legal rights
An independent and impartial judiciary that promotes fairness and ensures transparent, timely, and predictable resolution of disputes
Effective and efficient public institutions that empower business and individuals to make a positive contribution to the economy and society.”
In addition, it should be noted that everyone needs to take responsibility to protect and promote the rule of law, as suggested by the World Justice Project. For example, reporting all suspected crimes, stop paying bribes, stop speeding on the roads. Furthermore, “we can support our judges, magistrates, and court officials, most of whom work tirelessly to uphold the rule of law” (as The World Justice Project expressed it). The citizens must also hold the government and law-enforcement agencies publicly accountable.
Dr. Lizzy Oluwatoyin Ofusori is a postdoctoral research fellow at the School of Management, IT and Governance, University of KwaZulu Natal, Durban. She writes in her capacity.