Constitutional Law: The Rule of Law
Welcome to the My Easy LLB Namibian Law Blog!
These are notes on the the Rule of Law.
If you’re taking Constitutional Law as a module, chances are you’ve encountered the phrase, ‘Rule of Law’ during a lecture or at least glimpsed it on your course outline. It’s likely going to come up throughout your legal studies, so it’s in your best interests to get a grip on it now. Here are some notes you can keep with you to jog your memory whenever you need to.
They are not an academic reference. Use them to help you study.
You'll also get a sweet, little, bitesized graphic at the end to help jog your memory of this topic whenever you need to 🤓✌️
What is the Rule of Law?
According to the World Justice Project (2017), the Rule of Law is “a durable system of laws, institutions, norms, and community commitment that delivers accountability, just laws, open government and accessible justice”, those being its four pillars or principles. My Democracy Tree (n.d.) adds another pillar, being that a society should be governed by law and not by force.
However, many writers suggest that the concept cannot really be pinned down to a specific, unchanging definition but, rather, exists as a ‘series of different attributes’ (May and Winchester 2018, p. 21).
In more detail, the main principles (note that they are all interrelated) of the Rule of Law are:
Accountability
This principle means that all persons, natural and juristic, are accountable, or answerable, under the same rules. This includes the Republic of Namibia itself; it is not above its own rules. Our Constitution states that our country stands upon the principles of ‘democracy, the rule of law and justice for all’ (Article 1).
Just Laws
The word ‘just’, in this context, refers to laws that are unbiased, objective or unprejudiced. They should apply to all the players of society in the same ascertainable fashion. They should be made available to the public, remain consistent and protect fundamental rights, such as the security of person and property and human rights (World Justice Project 2017).
Open Government
You will encounter this aspect in particular detail during your Administrative Law module. The Rule of Law requires that laws are enacted, administered and enforced by processes which are accessible, fair and efficient (World Justice Project 2017).
No Namibian should be left in the dark about what our country’s laws say and, if there is any confusion about that, it should be clear what the correct channels are to locate the laws. This includes information on how to take action against a government department, without fear of retribution or prejudice.
Accessible Justice
As an appendage to an open government, justice should be accessible to all. This means that justice should be delivered in a timely fashion by competent, neutral representatives who have adequate resources and reflect the spirit and values of the society they serve (World Justice Project 2017). Furthermore:
Laws must be applied by independent courts who can protect citizens against the unfair use of power by the state, by private individuals or by any organisation. Laws must also be enforced fairly by police and other law enforcement agencies who do not show favouritism. If a country has a corrupt judiciary or police force which can manipulate the laws, the public might stop respecting the law altogether and the rule of law might break down (My Democracy Tree n.d.).
Remember, judicial independence is guaranteed by Articles 78(2) and (3) of the Constitution, but the courts remain answerable to the Constitution itself, and judicial officers are additionally answerable to the Judicial Service Commission and the other rules governing their professional practice (Amoo and Skeffers 2008).
By Law, Not Force (My Democracy Tree n.d.)
We live in a civilised society where people are fairly intelligent are able to reason with each other at a basic level. There is no need for the police to walk around beating each and every person who disobeys a rule. It is usually sufficient to ask the person to discontinue their behaviour or to explain to them that they are under arrest, if need be.
The Rule of Law gives us a way to maintain a civilised society. Without it, the police, government officials and even private persons would be able to use brute force or other wrongful means to get their way. The Rule of Law makes it possible to keep all players in society on a relatively level playing field.
For your pocket
References
Amoo, S & Skeffers, I 2008, The rule of law in Namibia, viewed 13 April 2021, <https://www.kas.de/c/document_library/get_file?uuid=bec5a239-1da4-5257-c471-cf1a73e35142&groupId=252038>
World Justice Project, 2017, What is the rule of law? viewed 12 April 2021, <https://worldjusticeproject.org/about-us/overview/what-rule-law>
My Democracy Tree, n.d., Rule of law, viewed 12 April 2021, <https://www.lac.org.na/projects/grap/Pdf/Law_1-Rule_of_Law.pdf>
The Constitution of the Republic of Namibia, Act 1 of 1990.
May, C & Winchester, A 2018 Handbook on the rule of law, Edward Elgar Publishing, Cheltenham.
