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What Happens When the Rule of Law Breaks Down
Zimbabwe today is a classic example of what goes wrong when the rule of law
breaks down: oppression; political instability; unjust laws and laws
unequally applied; the law usurped in the interest of the few; economic
decline and a rapidly deteriorating quality of life.
There have been repeated attacks on the judiciary and legal profession -
repressive laws, arrests of judges and lawyers, stacking the courts with
ruling party loyalists, police refusal to carry out court orders or even to obey
the law, to name some - as well as on the press and civil society, two other
pillars of democracy.
This year the UN Special Rapporteur on the independence of judges and
lawyers described assaults on judicial independencein Zimbabwe as "chilling" and
the rule of law as "in tatters".
The UN sees an independent judiciary as indispensable to a free society and
the rule of law. It is the duty, and constitutional right, of judges to act
according to the law, to exercise freely their powers and to interpret laws
according to the dictates of conscience. It is the duty and right of lawyers, of
any political persuasion, to carry out their profession.
Much like soccer can only be played if the players agree to rules and the
referee enforces them fairly, just laws underpin the smooth operation of
societies and help them flourish. If the rules become unfair, contested or
are not enforced, the game - the society - breaks down.
The principle of the rule of law - that agreed laws should govern our lives,
not the whimsy of the powerful - is the bedrock of human justice, a pillar
of democracy and a goal of liberation struggles. Injustice not rights,
dictatorship not democracy, is found where the rule of law has been whittled
away.
Law arises in societies with the realisation that it is more profitable to
resolve conflicts arising out of opposing interests by adhering to rules,
than by disputes or fighting. This is an ancient idea that is common to many
civilisations.
The rule of law is based on understanding that individuals are not to be trusted
with power unless it is restrained by laws - agreed by the people, not by
dictators - that prevent tyranny and plundering, and protect
the dignity, rights and well-being of all.
Broadly defined as the principles, institutions and procedures that
experience has shown to protect individuals from arbitrary government, and
enable their dignity, it ensures that the will of the people - expressed
through elected representatives - is carried out by government.
The UN's 1948 Universal Declaration of Human Rights states that rights must be
protected by the rule of law if people are to avoid "rebellion against
tyranny and oppression".
Thus the rule of law is not an arcane issue for lawyers but a fundamental
guarantee of a stable society. It is not rule by one but rule by many, and
so all citizens need to know about laws and their own rights, and how to
identify - and resist - attempts to undermine them.
This is the first of a series of columns to appear weekly in The Daily News.
Their purpose is to deepen understanding of how the rule of law underpins
stability, thereby helping to create conditions in which people, societies and
economies can thrive, and to show how a government that imperils the rule of
law, undermines its people and economy.
The columns will deal with many issues, from the role of the three pillars
of state and seizure of power by the Executive, to the independence of the
judiciary and attacks on it, government legitimacy, "official" miscarriages
of justice, the constitution and the Declaration of Rights.
They will also look, among other things, at the role of law in a political
settlement, at how problems with the law need to be tackled, land reform,
the roles of the security forces, and laws like the Public Order and
Security Act and Access to Information and Protection of Privacy Act. Most
importantly, the columns will help to highlight threats to the rule of law. We
also hope that they will impart knowledge, generate discussion with readers and
encourage wide
public participation in support for the rule of law.
This column is provided by the International Bar Association, an organisation
which represents the Law Societies and Bar Associations around the world, and
works to uphold the rule of law. For further information, please visit the IBA
website
www.ibanet.org
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