Restating the Concept of the Rule of Law as a means to realising economic and social rights

“We face neither East nor West; we face forward.” Kwame Nkrumah

The Rule of Law represents a symbolic ideal against which proponents of widely divergent ideological persuasions measure and criticise the shortcomings of contemporary State practice. According to A.V Dicey, the famous British Constitutional Lawyer, the concept of the Rule of Law has three distinct elements which together made for the Rule of Law as he understood it:

1. An absence of arbitrary power on the part of the State. The extent of the State’s power, and the way in which it exercises such power, is limited and controlled by law. Such control is aimed at preventing the State from acquiring and using wide discretionary powers, for, as Dicey correctly recognised, the problem with discretion is that it can be exercised in an arbitrary manner; and that above all else is to be feared, at least as Dicey would have us believe.

2. Equality before the law. The fact that no person is above the law, irrespective of rank or class. This was linked with the fact that functionaries of the State are subject to the same law and legal procedures as private citizens.

3. Supremacy of ordinary law. This related to the fact that the English Constitution was the outcome of the ordinary law of the land and was based on the provision of remedies by the courts rather than on the declaration of rights in the form of a written constitution

Joseph Raz one of the most prominent living advocates of  “Legal positivism” legal positivism has to some extent redefines the concept of the Rule of Law. Raz claims that the basic requirement from which the wider idea of the Rule of Law emerges is the requirement that the law must be capable of guiding the individual’s behaviour. He states some of the most important principles that may be derived from this general idea:

1.Laws should be prospective rather than retroactive. People cannot be guided by or expected to obey laws which have not as yet been introduced. Laws should also be open and clear to enable people to understand them and guide their actions in line with them;

2. Laws should be stable and should not: be changed too frequently as this might lead to confusion as to what was actually covered by the law;

3. There should be clear rules and procedures for making law;

4. The independence of the judiciary has to be guaranteed to ensure that they are free to decide cases in line with the law and not in response to any external pressure;

5. The principles of natural justice should be observed, requiring an open and fair hearing to be given to all parties to proceedings;

6. The courts should have the power to review the way in which the other principles are implemented to ensure that they are being operated as demanded by the Rule of Law;

7. The courts should be easily accessible as they remain at the heart of the idea of making discretion subject to legal control;

8. The discretion of the crime preventing agencies should not be allowed to pervert the law.

It is fair to say that human beings have been involved in conflict and cooperation since the beginning of history. Books are replete with stories of “glory” in war as well as the agony caused by it. Of course, we do not live in a Hobbesian world of “conflict of all against all, all of the time.” Indeed, cooperation is the more natural state of relations between people, as well as among civil societies and between nation states. But when peace breaks down, the consequences can be devastating, particularly in an era when the possibility of terrorist actions and nuclear events are all too real. It is in keeping the peace and managing conflicts, at the individual level, between various segments of society and between nation states, that the legal system makes its greatest contribution. In other words, there can be no peace or sustainable economic development without the right legal framework. As such the concept of the rule of law is not merely a matter for political philosophy. In the 21st century the legal system is one of the most critical institutions in the development paradigm.

Yet surprisingly, it is an area that receives very little attention from the broader development community. More specifically, policy-makers in many developing countries place a much higher priority on other pressing issues, such as rising fiscal deficits, weak social safety nets in the face of rising oil prices, fluctuating currencies, health pandemics like the malaria, tuberculosis and AIDS, and declining employment opportunities.

In fact, some policy-makers, while not saying so explicitly, take the view that justice can wait—especially in the face of some of the critical problems I have just mentioned. One might ask: If the rule of law is so important, why don’t our leaders pay more attention to it? I think the answer is that investment in legal systems and reform is based on a short-sighted view of law’s benefit to society. In a society that narrowly views law’s purpose as conflict resolution, there is a tendency to think that only those individuals and groups that are in conflict benefit from investments in the legal system. But the truth is that the law underlies and defines social relations and institutions, and allows society as a whole to function. And just like health and education, the rule of law is a public good that yields benefits to society over the long run. Creating and implementing legal frameworks that establish rule of law leads to greater predictability. Experience tells us that where there is greater predictability, investments in physical and human infrastructure increase. But all too often, and because it is ignored and largely under-funded, the legal system fails to deliver on its promise.

Can countries develop in the absence of the rule of law? Those who maintain that developing the legal and judicial system is not crucial to economic development often cite the People’s Republic of China, or PRC, as an example of strong economic development with a weak legal framework. Actually, when PRC embarked on economic reforms in 1978, it experimented with numerous initiatives to foster the development of a market economy. These include revision or adoption of new laws on companies, securities regulation, banking, and administrative licensing. Importantly, the PRC has acceded to the WTO and is earnestly implementing its requirements by changing over 2,000 laws and regulations. While the rule of law needs further improvement, the government is making concerted efforts to provide real implementation of the laws that are on the books.

Strengthening legal and judicial institutions makes good economic sense. Studies have found that strong institutions are important to economic growth and social development. Where citizens perceive no predictability in the judiciary’s enforcement of laws, there has been less economic growth. The independence of a country’s judiciary has a positive correlation with economic growth.

Indigene people face many barriers to exercising their human rights. Among these barriers are laws and policies that discriminate against poor and vulnerable groups, and the inability of these groups to understand the law and enforce their rights. Recognizing these barriers has resulted in the enactment of the Legal Aid Act 2008 to improve the poor’s access to justice institutions, support equality of access to justice, and reduce or eliminate discrimination in the courts’ application and enforcement of laws and policies. Resources are needed to improve access to justice, and the competence of judges and court personnel who are called upon to dispense justice fairly.

The rule of law is necessary to thwart the abuse of power. Under the rule of law, government authority may only be exercised in accordance with written laws that are adopted through established procedures. The justice system is integral to safeguarding society against corrupt acts and arbitrary rulings that diminish predictability—predictability that allows businesses and investors to plan ahead and permits markets to work effectively.

Another focal point where the rule of law can play a significant role is regional security and peace. Transnational terrorism and organized crime are now sensitive regional concerns. Trade and investment in the ECOWAS region are negatively affected by signs that key infrastructure and transportation are vital routes for narco-trafficking.  Guinea Bissau Liberia and Sierra Leone because of long years of conflict have been accused of harbouring organised crimes individuals and organisations. Failure to combat organized criminal activities such as money laundering will prove costly. Regional cooperation can help such countries address these issues.

Yet another area of interest is environmental law and policy. In the Gulf of Guinea or the West Africa Subregion, it should be possible for countries to enter into agreements that concern the management of shared natural resources such as water. ECOWAS should be proposing arrangements that will allow countries to cooperate in managing oil and gas resources in the region. These arrangements are necessary so that environmental laws and their enforcement by domestic courts can be harmonized in the future.

It should be noted that what happened in Cote D’ivoire a few years ago could happen anywhere in West Africa, where harmful toxins were dumped on the coast of Abidjan resulting in many deaths and deformities in communities living along coast. Apparently a financial settlement has been reached between the multinational corporation, an oil trading firm Trafigura, with offices in London, Amsterdam and Geneva has agreed to pay more than $46m compensation to Ivory Coast citizens who say they were affected by contaminated waste in 2006. The settlement provides that 30 000 people will each receive $1 546. The money is in addition to the nearly $200m that the company paid the Ivorian Government in 2007. This matter could have been settled in Cote D’ivoire or at the

In conclusion, it is safe to say that to realise socio-economic rights the rule of law must be bolstered and the legal institutions which are vital for economic and social development adequately resourced. Appropriate laws are necessary but equally important is how they are implemented. No one questions the importance of investing in health or education. We must now widen the horizons of our leaders and policy-makers to help them realize that long-term investment in the system of justice is just as important as health and education because it is the means by which we, as citizens, can take advantage of incentives to cooperate and find ways to mitigate the negative effects of our conflicts.

Almami Fanding Taal is Legal Practitioner with special interests in Human Rights, Media Laws, and Good Governance & Institutional Development