Posted by Chester Morton / Monday, 19 December 2016 / No comments
The factors that militate against the operation of Rule of Law in the world
Definition of Rule of Law
Rule of law has two definitions, the classical meaning as
proposed by A. V. Dicey and the modern definition by the New Delhi declaration
in 1959 at a meeting of the International Commission of Jurists.
According to A. V. Dicey, in his classical opinion, Rule of
Law means the law is supreme. In other words, the law is the highest authority
of the land in the absence of which nothing else can prevail. For example, the
law does not reside in the bosom of anybody.
The contemporary definition, as developed by the
International Commission of Jurists states that it is the conditions,
structures, institutions, processes and procedures that must exist so that the
individual can enjoy his life in dignity, security and prosperity.
LIMITATIONS
The level of illiteracy of citizens
One of the factors that prevent the full realization of the
practice of Rule of Law is the high level of illiteracy of the citizens,
especially in the developing world. For some citizens, Rule of Law could as
well be an animal living in the forest, they just do not care. Such people do not
see the reason why they should care about whether the government stays within
the confines of the law or not.
Local traditions
Some societies are so attached to their customs and
traditions that, it is difficult for them to away with it. These customs and
traditions infringe upon the fundamental human rights of citizens but it is
still practiced in the name of tradition. The Krobos of Ghana still practice
puberty rites that expose the nudity of young girls who may not want to. The
rites of passage for young boys in South Africa have resulted in the death of
some of the initiates.
Immunity before the law
Another factor that limits the full realization of Rule of
Law is the immunity against prosecution which some categories of citizens
enjoy. Diplomats who fall foul of the law in their host country are exempt from
trial in the host country. Parliamentarians also enjoy immunity from
prosecution for acts performed in the course carrying out their legitimate
duties. They not also be arrest to or from parliament.
Delegated Legislation
The use of delegated legislation does not allow for the full
operation of Rule of Law. Rule of Law is against the use of wide discretionary
powers by government appointees. However, delegated legislation allows the
officials on the grounds to act depending on the exigencies of the situation in
the local area. This could lead to the situation where the government official
is tempted to act arbitrarily. This does not promote the liberty of the
citizens.
Presence of too many laws
Another aspect of Rule of Law is that the certainty of the
law. In other words, the citizens must be able to know exactly what the law is
at any given time. However, the proliferation of many delegated legislation
and the absence of enough publicity to the laws creates the situation where the
citizens are not aware of some of the laws. They then get punished for a law
they do not even know exists.
Role of the government
For Rule of Law to thrive in a country, the government must
be will to play ball. If a government is unwilling to compromise, it is
difficult for Rule of Law to be fully realized. Some governments even refuse to
comply when the courts rule that that should be the case. Under President
Kuffour in Ghana, Mr. Hodary Okai was unlawfully dismissed. The man went to
court and the court ruled in his favour and asked the government to reinstate
him but this was not done. So the attitude of the government of the day is
paramount in the true realization of Rule of Law.
SAMPLE QUESTIONS
1. a. What is Rule of Law?
b. Highlight four
factors that militate against the practice of Rule of Law.
