The Concept of The Rule of Law: Dr. S. B. M. Marume, R. R. Jubenkanda, C. W. Namusi, N.C Madziyire
The Concept of The Rule of Law: Dr. S. B. M. Marume, R. R. Jubenkanda, C. W. Namusi, N.C Madziyire
The Concept of The Rule of Law: Dr. S. B. M. Marume, R. R. Jubenkanda, C. W. Namusi, N.C Madziyire
Abstract: Public officials, which include elected political office bearers and appointed officials, should
always carry out their executive, administrative, functional, and technical activities with legality that means
taking into account (a) the rules and principles of natural justice; (b) the constitutional principles, and (c) the
rule of law of the country.
Keywords: rule of law, rules and principles, natural justice, constitutional principles, and legality.
I. Introduction
In terms of section 3 of the Constitution on Founding Values and Principles, sub-section 3 (1) (b) states
the rule of law as one of the founding values and principles. Effort will be paid to examining this concept in
great detail.
General Observations
Public officials should always carry out their executive, administrative, functional, and technical
activities with legality, that means, taking into account (a) the rules and principles of natural justice, (b) the
constitutional principles and (c) the rule of law of the country.
Natural Law
Natural law is a value system [value standard] and is the role ascribed to reason.
According to Socrates the basic ideas are that there are absolute standards of morality which exist independently
of the will of the ruler or the state. They exist in the form of external, universal, immutable laws of nature which
are prescribed by reason. Here reason is not a source of knowledge, but is merely an instrument, a channel
through which men analyze their values and make serviceable. The various theories about Natural Law were
influenced by the following two views especially:
The existence of a universal order that holds for everybody.
As well as the existence of inalienable human rights.
The Stoics [Greeks: Plato, Socrates, Aristotle, Cicero] and later thinkers enlarged on the idea of the existence of
a law of nature which consequently received increasing recognition. This led to the formulation of the
principles that the difference between right and wrong is absolute, that is, it cannot be made or changed by any
legislator, and that it is incumbent on the state to provide legislation promoting right behaviour and actions and
discouraging wrong ones. In other words, the state has a moral obligation to its members.
This view takes us back to the very core of the writing of Socrates and his convictions, as contained in
Platos Republic: that the concept of justice is absolute and not limited to time and place. The stoics held that
justice is to be found in the nature of man: Morality is determined, not by the rule of the stronger, but by the rule
of that reason, which all men share alike. The doctrine is beautifully summarized in the following extract from
Ciceros dialogue in the book De Re Publica:
The law is right reason in agreement with nature: it extends to all men, is unchanging and everlasting; it calls
men to duty by its commands and by its voice warning holds them back from deceit. Its orders and also its
prohibitions are not unheeded by good men.It is sinful to amend this law, nor is it right to repeal any part of it.
It is impossible to abolish it entirely..We need not seek the help of another to expound and interpret it.
There will not be different laws in Rome and in Athens or different laws now and in the future but all nations at
all times will be under the sway of one law, everlasting and unchangeable.
And there will be one universal master and ruler, the God, who is the author of this law, its promulgator and its
enforcing judge. Whoever disobeys him will be fleeing from himself and turning away from the very nature of
man.
Rule of law
Many modern constitutions incorporate certain fundamentals such as:
Fundamental human rights and freedoms
Many modern constitutions incorporate certain fundamental human rights, such as:
right to life;
right to personal liberty;
right of arrested and detained persons;
right to human dignity;
right to personal security;
freedom from slavery or servitude;
freedom from forced or compulsory labour;
equality and non-discrimination;
right to privacy;
freedom of assembly and association;
freedom to democratic and petition;
freedom of conscience;
freedom of expression and freedom of the media;
access to information;
language and culture;
freedom of profession, trade or occupation;
labour rights;
political rights;
right to administrative justice;
right to a fair hearing;
right of accused persons
property rights;
environmental rights;
freedom from arbitrary eviction;
right to education;
right to health care;
right to food and water;
marriage rights.
Blakstones commentaries of 1965. For Blackstone the absolute rights of Englishman were the rights of personal
security, personal liberty and private property.
rights and freedoms. In so far as they do not already exist in their laws, these countries are under an obligation to
introduce the necessary legislation. There is also the Declaration of Delhi of 1959 The rights concerned are a
more detailed version of those contained in the Universal Declarations of 1948. They are still expressed in very
general terms, and the necessary limitations are not stated. There is enforcement machinery, partly adoptive
through the European Commission of Human Rights, the Committee of Ministers of the Council of Europe, and
the European Court of Human Rights.
The Legislation
There is a right to representative and responsible Government; and there are certain minimum standards
or principles for the law, including those contained in the European Convention, in particular, freedom of
religious belief, assembly and association, and the absence of retroactive penal laws;
The Executive
Especially that delegated legislation should be subject to independent judicial control, and that a citizen
who is wronged should have a remedy against the State or Government, or administration;
a. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary Courts of the land. In this sense the rule of law
is contrasted with every system of government based on the exercise by persons in authority of wide,
arbitrary, or discretionary powers of constraint. It means, in the first place, the absolute supremacy or
predominance of arbitrariness, or prerogative, or even of wide discretionary authority on the part of the
government.
b. We mean in the second place, when we speak of the Rule of Law as a characteristic of the United Kingdom,
not only that every man, whatever his rank or condition, is subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary tribunals. This equality before the law V.A. Dicey contrasts
with the system of administrative law in France, according to which the responsibility of government
officials for acts done in the public service is determined by a distinct system of administrative courts an
idea which is utterly unknown to the law of England, and indeed is fundamentally inconsistent with the
English traditions and customs.
c. The general principles of the British constitutional law, as for example, the right to personal liberty, or the
right of public meeting, are with us the result of judicial decision determining the rights of private persons
in particular cases brought before the Courts of Law whereas under many foreign constitutions the security,
such as it is, given to the rights of individuals results, or appeals to result, from the general principles of the
constitution. The British constitution, in short, is a judge made constitution. There is in the British
constitution absence of those declarations or definitions of rights so dear to foreign constitution is the result
(product) of the ordinary law of the land.
c. That private rights should be determined by impartial and independent tribunals; and
d. That fundamental private right is safeguarded by the ordinary law of the land.
The Rule of Law Professor Wade adds, is reconciled with the supremacy of Parliament and by the
independence of the Judiciary,
Rule of Law: simply means equality before the law and freedom from arbitrary government.
a. It is not assumed that administrative compliance with the letter of the law is sufficient for valid
administrative action.
b. When there are no legislative provisions the courts will assume that certain additional principles have to be
observed, for instance, principles of natural justice, fairness, reasonableness and justice; but there are limits
to the role which the law can and should play in presenting the limits of administrative action.
c. Sometimes the law can only permit officials to determine the appropriate and necessary course of action to
be adopted.
All public officers are governed by law, and which law defines and limits their powers.
Democratic principles require that:
a. All governmental power, except those of Parliament, should be distributed and determined by reasonably
precise laws;
b. There be equality before the law;
c. The limits of police powers should be rigidly defined;
d. There be freedom:
And civil liberties, and
Right to choose and participate in the government and administration of his country;
e. Be effective control of and proper publicly for all delegated legislation;
f. Be an independent, impartial, and competent functional judicial system and autonomous respectable legal
profession.
Rule of Law: means equality before the law and freedom from arbitrary government and administration.
Respect for supreme value of human personality shall form the basis of all law.
Bibliography
[1]. Lawrence Baxter: Administrative Law: Juta and Company Limited: Cape Town, 1984
[2]. J. J. N. Cloete: Introduction to Public Administration: Pretoria: J. L. van Schaik, 1985
[3]. Sir Williams, O. Hart and J. F. Garner: Harts introduction to the Law of Social Government and Administration: London:
Butterworths, 1973
[4]. J. A. G. Griffith and H. Street; Principles of Administrative Law; 4 th edition; Pitman Publishing, 1970
[5]. O. Hood Phillips: Constitutional and Administrative law: 3rd edition: London: Sweet and Maxwell: 1962
Samson Brown Muchineripi Marume: a former senior civil servant for over 37 years
in various capacities and 10 years as deputy permanent secretary; ten years as a large
commercial farmer; well travelled domestically within Zimbabwe, regionally [SADC
countries: Angola, Botswana, Lesotho, Malawi, Mozambique, Mauritius, Swaziland,
South Africa, Namibia, Tanzania, Zambia and DRC]; and Africa [Kenya, Ethiopia,
Sudan, Egypt, Nigeria, Libya, Uganda]; and internationally [Washington, New York
and California in USA; Dublin and Cork in Ireland; England in United Kingdom;
Netherlands, Spain (Nice), France, Geneva in Switzerland, former Yugoslavia-
Belgrade; Rome and Turin in Italy; Cyprus Nicosia; Athens Greece; Beijing
China; Singapore; Hong Kong; Tokyo, Kyofo, Yokohama, Osaka, Okayamo in Japan];
eight years as management consultant and part time lecturer for BA/BSc and
MA/MBA levels with Christ College- affiliate of Great Zimbabwe University, and
PhD/DPhil research thesis supervisor, internal and external examiner; researcher with Christ University,
Bangalore, India; currently senior lecturer and acting chairperson of Department of Public Administration in
Faculty of Commerce and Law of Zimbabwe Open University; a negotiator; a prolific writer; vastly experienced
public administrator; and a scholar with specialist qualifications from University of South Africa, California
University for Advanced Studies, United States of America: BA with majors in public administration and
political science and subsidiaries in sociology, constitutional law and English; postgraduate special Hons BA
[Public Administration], MA [Public Administration]; MAdmin magna cum laude in transport economics - as
major, and minors in public management and communications; MSoc Sc cum laude in international politics as a
major and minors in comparative government and law, war and strategic studies, sociology, and social science
research methodologies; PhD summa cum laude in Public Administration .
1.
2. Roy Robson Jubenkanda: current DPhil studies with ZOU; 2000, MSc in
Strategic Management University of Derby, U. K; MSc. Econ. In
international Economics, Banking and Finance- University of Wales,
Cardiff College of Business Studies, U.K.; 1983, BSc (Hons) Degree in
Economics University of Zimbabwe, Zimbabwe; 1976 Business Studies
Diploma Solusi University, Zimbabwe; 2005, Certificate in Distance
Education Practitioner (UNISA); 2011, Certificate in Higher Education
Management in Southern Africa (University of the Witwatersrand)
Johannesburg, South Africa.
3.
Cornelius Wonder Namusi: current studies: DPhil in Public
Administration; 1991, Master of Public Administration (UZ); 1982,
Bachelor of Administration Honours (UZ); 2011, Certificate: Module
Writing; 2011, Certificate: Managing the training programme ESAMI,
Tanzania; 1990, Certificate advanced work study (Canada); 1986,
Certificate: Organisation and methods O & M), Institute of Development
Administration IDM Botswana); 1983, Certificate in Labour
Administration, African Regional Labour Administration Centre (ARLAC)
(Nairobi); 1964, Primary Teachers Higher Certificate (PHT) Waddilove
Teacher Training Institution, Marondera, Zimbabwe
4. .
N. C. Madziyire: current studies; DPhil (candidate); Master of Education (Educational Administration) (UZ);
Bachelor of Education (Curriculum studies and Teacher Education) (UZ); Diploma in Teacher Education (Dip
TE) (UZ); Primary Teachers' Higher Certificate (St Augustines); I am senior lecturer in the Faculty of Arts and
Education at the Zimbabwe Open University; I serve as a Programme leader for The Bachelor of Education in
Youth Development studies; I am also responsible for developing Distance materials for distance learners; I
write, content review and edit modules in the Faculty.