Human Rights, Individual Freedoms and Democracy in Ghana- The Preventive Detention Act and After - The Rule of Law

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Parent Category: Africa and The World

Category: Law & Justice

Created on Tuesday, 10 February 2015 00:00

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The Rule of Law

We are, as a people, in search of good governance. And there cannot be good governance unless there is established the principle of the rule of law.

Whether it is by choice or not, the rule of law has been the yearning of all peoples from all generations. Every society, when offered the opportunity, has rejected arbitrary rule which is by definition antithetical to the rule of law. Where a people have been subjugated under authoritarian or totalitarian rule, the apparent acceptance of the dictatorship has been a superficial strategy for survival, except, of course, for the few willing collaborators who find solace in their own pretensions to power and influence. When there is a crack in the wall of tyranny, the people always choose to reassert their desire for freedom and justice.

The rule of law means that the rights and responsibilities of the citizen are regulated and defined by pre-existing laws which satisfy minimum criteria of fairness and justice. The corollary to this is that the powers of the organs of government, and of those who are entrusted with public authority, are circumscribed and limited by the law. The necessary implication is that powers of government shall not be exercised arbitrarily. Therefore, the laws must respect the basic and essential humanity of citizens and must advance and protect their basic rights and freedoms. There must not be, as a matter of public policy, discrimination against any segment of the population on the basis of gender, ethnic origin, political belief, or religious persuasion. To achieve this end, the law must permit and encourage freedom of speech and of association, and other human rights, even if the exercise of these freedoms may on occasion be distasteful and irritating to those in authority.

By definition, therefore, the rule of law means limited government. The limitation applies to all the organs of state power, The rule of law implies a limitation on the legislative power of the state, in the sense that it may not enact pernicious legislation. For instance, if the legislature were to enact that all men over six feet tall must be beheaded, it would be an arbitrary and capricious piece of legislation. It would be a baseless statutory discrimination without any justifiable social purpose.

The notion of limited legislative power is of ancient vintage. Plato, Aristotle, St. Thomas Aquinas, and other earlier philosophers, held the view that certain prescriptions of the natural law are immutable and all good laws must conform to them. To the extent that human laws are inconsistent with or in contravention of the immutable law of God or nature, they are not laws and are not binding in conscience. Indeed they would urge that there is a duty to refuse to obey such laws, as no prince and no sovereign is empowered to enact such laws. Today we see these limitations on the legislative powers of the state as constitutional limitations. For example, Articles 3(1), 55(1), (2) and (3), and 56 of the 1992 Constitution explicitly provide that Parliament lacks the competence to enact legislation which may have the effect of creating a one-party state.

In other words, the adoption of the rule of law means that the powers of the legislature are restricted by a higher law, often derived from a higher precept which is to prevent arbitrary rule. In our own traditional Ghanaian communities, the chiefs and elders recognise that they are not competent to legislate against certain sacrosanct edicts and minimum standards of moral rectitude derived from the traditions of the ancestors and held by them to be sacred.

Whichever way we define it, the rule of law is not a static concept. It has been changing in content and scope, as well as effect, over generations and epochs in human history. In 1959, the International Commission of Jurists declared that the rule of law is a dynamic concept. This means that we must accept that the concept changes with the advance of human and social values. Nevertheless, it remains a concept by which good governance may be measured.

The Rule of Law Contrasted with Legality

There is often the confusing sophistry of interpreting the rule of law as implicit in legalism. This intellectual obfuscation must be resisted. It is true that there can hardly be the rule of law, unless the conduct of public officials conforms to the law. The test, however, is not whether a particular conduct or public act is legal. The question is whether the law, by virtue of which the action was taken, is a fair and just law of general application. When Herod, according to the Holy Writ, issued the edict that all male children under two years of age in Judea shall be beheaded, those who carried out the order were acting in a perfectly lawful manner; but neither the edict itself, nor those who carried out the executions, were acting in consonance with the principle of the rule of law. An arbitrary law issued ad hoc and ad hominem, targeted at a vulnerable sector of the population, violates the rule of law. When the Provisional National Defence Council ruled this country with arbitrary edicts, that was an era devoid of any pretension to the rule of law. Yes, the edicts were law; but they did not necessarily conform to the accepted principles of the rule of law.

In deciding whether there is a rule of law, we must examine critically the content and effect of the laws and the legal atmosphere created by the regime in power. Dictators are as notorious for their arbitrariness and sadism, as they are for their scrupulous adherence to the letter of the law, albeit law enacted to justify their own actions which they know or must know to be cruel and even sinful. Everything that Hitler did in Nazi Germany was perfectly legal because he manipulated the law and the legal system to become instruments for oppression. When Kwame Nkrumah imprisoned his political opponents indefinitely without trial and without a right of access to the courts, he was acting legally.

His denial of the basic human rights to Ghanaians was lawful because his power was derived from the notorious Preventive Detention Act. That Act conferred on himself the power to be at the same time the accuser, the judge and jury in his own cause. That sort of legality did not even remotely approximate to the rule of law. It was naked tyranny. Revisionists of today may re-package the facts and may try to re-write history. Some may even invoke nebulous national security concerns to justify such arbitrary rule that authorised imprisonment of citizens without trial; but that era of our young history was not a period of the rule of law.