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RULE OF LAW - FAQ's

What is meant by the Rule of Law ?

 

The Rule of Law is a concept that means that all actions and decisions need to be made in accordance with law. It is one of the measures that attempts to ensure that decisions cannot be taken at the variable will of the people in charge – i.e. the leaders of the nation. This would be “the rule of men” and is the exact occurrence that the Rule of Law is designed to prevent.

Following the rules and laws set out in the Constitution and in legislation ensures stability and equality before the law within the country and under this system the citizens are protected from the arbitrary exercise of power.

Under the Rule of Law all persons, institutions, public and private entities, are accountable to the laws that have been made by the state. The government is as bound by the Rule of Law as any other and is therefore totally accountable for the action it takes.

Nobody is exempt from the Rule of Law.

The concept of the Rule of Law includes a number of principles which need to be respected in order for such rule to function properly. The important principles include the following:

  • Law is supreme
  • Everybody is equal before the law
  • Law is applied in a fair way
  • Separation of powers
  • Accountability under the law
  • Avoiding arbitrariness
  • Legal certainty
  • Transparency in legal proceedings and law making


The points below highlight a few basic facts about the law and the application thereof.

  1. The law is a body of rules, set by the state to regulate conduct and punish wrongdoings.
  2. National law is superior to all other laws except the Constitution, which is the supreme law of the land.
  3. The Constitution is the highest-ranking piece of legislation and therefore every other law and/or court ruling must illustrate cognizance of and respect for the principles laid out in the Constitution. Failure to be consistent with the Constitution is invalid; laws and conduct that are inconsistent can be struck down on application to the courts.
  4. The law is binding on everyone in the same way and also binds the President and highest level of government officials.
  5. It must be applied equally to all citizens regardless of their status, must be non-discriminatory, must observe human rights and must ensure the dignity of every human being.
  6. The state is obliged to respect, protect, promote and fulfill the rights contained in the Bill of Rights, in the application of the law.

The presence of the Rule of Law however does not necessarily mean that a country has reached the highest degree of justice and there need to be instruments that help to maintain this system of governance.

Citizens need to be aware of their rights and obligations in order to assist in the maintenance of the Rule of Law and need to know what they can expect from the system. Society needs to be aware of the fact that only a breach of the law can lead to punishment, and not the mere will of the authorities in charge. As human beings, on whom the system eventually relies, are not infallible it is of utmost importance that every citizen know his/her rights and duties within the entire system of the rule of law, in order to be able to both uphold it, as well as detect malfunctions and demand changes.

The World Justice Project, which is a non-profit organization committed to the advancement of the Rule of Law around the world, refers to a rules-based system in which the following universal principles are upheld:

  • ‘The government, its officials and agents are accountable under the law.
  • The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property.
  • The process by which the laws are enacted, administered and enforced is accessible, fair and efficient
  • Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives and judicial officers who are of sufficient number, have adequate resources, and reflect the make-up of the communities they serve.1

 

The World Justice Project (WPJ)

For those who wish to learn more about the WJP it is recommended that a visit be made to www.worldjusticeproject.org

The WJP has a Rule of Law Index which is quantitative assessment tool designed by the World Justice Project to offer a detailed and comprehensive picture of the extent to which countries adhere to the rule of law in practice. There are nine factors, further broken down into 52 sub-categories that provide a comprehensive picture of Rule of Law compliance.

The nine factors are:

  1. Limited Government Powers
  2. Absence of Corruption
  3. Order and Security
  4. Fundamental Rights
  5. Open Government
  6. Effective Regulatory Enforcement
  7. Effective Civil Justice
  8. Effective Criminal Justice
  9. Informal Justice

 

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