1. 1. UNIVERSITY OF RWANDA COLLEGE OF ARTS AND SOCIAL SCIENCES SCHOOL OF LAW P.O.BOX 56 BUTARE BY: Christopher SENGOGA SUPERVISOR: LLM Tom MULISA Huye, June 2014 THE SYNERGY BETWEEN THE RULE OF LAW AND THE RIGHT TO DEVELOPMENT: CASE STUDY RWANDA AND SOUTH SUDAN This dissertation is presented in partial fulfillment of the requirement for the award of a Bachelors Degree in Law (L.L.B)
2. 2. i DECLARATION I, Christopher SENGOGA, declare that the work presented in this dissertation (memoire) is original work. It has never been presented anywhere in the University of Rwanda or in any other Universities and institutions. Where other individuals work has been used, references have been vividly provided and in many cases quotations have been made to support the words said based on other academic contributors. It is in this vein that I strongly affirm that this work is my own product as a contribution to be the fulfillment of a bachelors degree in law (license). Christopher SENGOGA Signature: Date . Tom MULISA (LLM) Signature: . Date:
3. 3. ii DEDICATION This Dissertation is dedicated To the Almighty God; My supervisor; My brothers and sisters; My friends, Comrades and My classmates!!!
4. 4. iii LIST OF ABBREVIATIONS ACHPR: African Charter on Human and Peoples Rights APA: Addis Ababa Peace Accord Art.: Article AT: Page AU: African Union Aug: August BBC: British Broadcasting Corporation BMZ: Feudal Ministry for Economic Cooperation and Development CPA: Comprehensive Peace Agreement DDR: Disarmament Demobilization and Reintegration Devt: Development E. g: For example Ed: Edition EU: European Union FIDH: The International Federation for Human Rights GoSS: Government of South Sudan Ibid: Ibidem ICCPR: International Covenant on Civil and Political Rights NAM: Non Aligned Movement NCP: National Congress Party
5. 5. iv No: Number O. G: Official Gazette O. J : Official Journal (Journal Officiel) O. J.R.R: Official Journal of the Republic of Rwanda Oct: October SPLM/A: Sudan Peoples Liberalization Movement/Army UDHR: Universal Declaration of Human Rights UK: United Kingdom UN: United Nations UNDP: United Nation Development Program UNESCO: United Nations Educational, Scientific and Cultural Organization UNICEF: United Nations International Children Emergence Fund UNISAF: United Nations Interim Security Force for Abyei USA: United States of America Vol: Volume
6. 6. v ACKNOWLEDGEMENT I am very grateful to have had this extraordinary privilege to recognize the contribution made by Professor Vienney Dicey of USA for his restless effort and commitment towards the surfacing of this dissertation. His creditable writings at every stage of this concept that motivated me to take up for rule of law in my research. May God bless my supervisor, Tom MULISA; he deserves a special appreciation for guidance and help. He really challenged me positively in my dissertation which I found so helpful for any future academic composition. Without Particularly dedicated efforts of Lex:Lead group Organization more especially its president Ann Bodley who connected me to the essay skilled typist and provided me with international guideline citations which helped much in all other followed typed material provided. Without her assistance, the dissertation would not have been pretty good and available at the soonest possible period as it did. I am very much pleased to record my keen appreciation to the University of Rwanda with considerable credit given to the former National University of Rwanda particularly faculty of law for its incredible knowledge and wisdom it imparted to us. For all that period from LLBI to LLBIB where am able to present such well phrased material at this time. I further extend my thanks to all my family especially brothers and sisters with more favor to my brother Frank MUSEVENI for his kindness cooperation and generosity he portrayed for all my academic struggle period, Friends, classmates and fellow students from the entire university. Special regards goes to more than friend, a brother and a struggle partner Fred MUSONI for all that cannot cut into pieces which came in malicious ways of encouragements and overtime. All the days we strived together leaving none behind, what we shared in all spheres of life. Finally, I am indebted to all those who helped me in the above mentioned ways and more others at large whom have not elaborated. However, I am still responsible for all that may crop up in this dissertation that may have over-looked.
7. 7. vi TABLE OF CONTENTS DECLARATION............................................................................................................................ i DEDICATION............................................................................................................................... ii LIST OF ABBREVIATIONS ..................................................................................................... iii ACKNOWLEDGEMENT............................................................................................................ v TABLE OF CONTENTS ............................................................................................................ vi GENERAL INTRODUCTION.................................................................................................... 1 1.1. HISTORICAL BACKGROUND...............................................................................................2 1.2. STATEMENT PROBLEM.......................................................................................................4 1.3. RESEARCH QUESTIONS.......................................................................................................5 1.4. GUIDING HYPOTHESIS........................................................................................................5 1.5. OVERVIEW OF THE WORK..................................................................................................6 CHAPTER ONE: RULE OF LAW AS VIEWED FROM DIFFERENT PERSPECTIVE... 7 SECTION 1: DEFINITION OF RULE OF LAW..............................................................................7 SECTION 2: HISTORY AND ORIGIN OF THE PRINCIPLE OF RULE OF LAW.........................10 SECTION 3: CHARACTERISTICS OF RULE OF LAW ...............................................................13 SECTION 4: MODERN CONCEPTION OF THEPRINCIPLE OF RULE OF LAW........................14 SECTION 5: THE OBJECTIVES OF THE PRINCIPLE OF RULE OF LAW..................................17 SECTION 6: THE SOURCES OF THEPRINCIPLE OF RULE OF LAW.......................................19 SECTION 7: THE PRINCIPLE OF RULE OF LAW WITH RELATED CONCEPTS ......................26 1: Rule of law and Democracy ............................................................................................ 26 2: Rule of law and Good governance .................................................................................. 27 3: Rule of law and Accountability ....................................................................................... 28 4: Rule of Law and Human Rights ...................................................................................... 29
8. 8. vii SECTION 8: CONCEPT AND THE CONTENT OF THE RIGHT TO DEVELOPMENT ................30 1: History and Evolution of the Right to Development....................................................... 33 2: The Right to Development as a Human Right................................................................. 37 3: Country Position in the Right to Development ............................................................... 39 CHAPTER TWO: THE RELATIONSHIP BETWEEN THE PRINCIPLE OF RULE OF LAW AND RIGHT TO DEVELOPMENT............................................. 44 SECTION 1: THE SYNERGY BETWEEN RULE OF LAW AND RIGHT TO DEVELOPMENT....44 SECTION 2: RULE OF LAW AND THE RIGHT TO DEVELOPMENT IN RWANDA..................47 SECTION 3: RULE OF LAW AND THE RIGHT TO DEVELOPMENT IN SOUTH SUDAN.........50 SECTION: 4. CRITICS ON THE PRINCIPLE OF RULE OF LAW................................................55 GENERAL CONCLUSION....................................................................................................... 57 RECOMMENDATIONS............................................................................................................ 58 BIBLIOGRAPHY....................................................................................................................... 60
9. 9. 1 GENERAL INTRODUCTION This dissertation deals with relationship between the principle of rule of law and right to development as a socio-economic right.1 It checks and points out a contributory factor on the rule of law to the third generation of rights.2 Many observant and political leaders have abused principle of the rule of law leading to political conflicts.3 It will deal with how international community has interpreted and applied rule of law.4 Hence establishes the link between international jurists on rule of law and other international instruments such as United Nations Declarations on rule of law, the Delhi Declaration and Lagos Conference on rule of law.5 The dissertation also discusses the connotation on rule of law in Rwanda as a recent country that has passed through political turmoil and ethnical distinction conflicts.6 This led to destruction of infrastructures, death of thousands of many civilians, decimated by hanger and paralyzed the economy due absence of principle of rule of law.7 Little interest in comparison with a newly born sister country South Sudan that faced and still facing political upheavals, illiteracy of the highest imaginable level, poverty and massive violations of human rights due to tribal class conflicts.8 All these happening in south Sudan was a result of lacking effective control of rule of law.9 1S. Haggard,A. Macintyre &L. Tiede, The Rule of Law and Economic Development (2008) 11 J. W. Devt 205 at 234. 2 Haggard, Macintyre& Tiede Supra note (1) at 240. 3UNDP Program for Justiceand Security accessed on 16th.03.2014. 4 J. F. Murphy, The United States and Rule of Law in International Affairs, 2d Ed (London: University of Cambridge Press,2004) at 12 accessed on 16th.3.2014. 5 E. Wade & G. Phillips, Constitutional law, 8th Ed (London: Longman Publishers,1970) at75. 6 P. Uvin & C. Mironko, Western and Local Approaches to Justice in Rwanda (2003) 9 J. Global Governance, 291 at 291 accessed on 16th.03.2014. 7 C. Newbury, Ethnicity and the Politics of History in Rwanda, Vol. 45 (Bloomington: Indiana University Press,1998) at 7 accessed on 16th.03.2014. 8United States Institute of Peace Rule of Law accessed on 17th.0.2014. 9N. Leader, Development & Humanitarian aid, Principles & Ethics, Protection, Human rights & Security, (London: Overseas Development Institute (ODI) 2000) at 70.
10. 10. 2 Discussing whether rule of law would be the best solution to all sorts of negative attitudes that have made many African states not to develop political, social and economical institutions.10 Thus looks at the developed countries measures towards right to development that has taken to be an important right which entails the rule of law to this modern world.11 1.1. HISTORICALBACKGROUND The history of the principle of rule of law originated far back in history and as early the middle ages. Since then its historic ideal has been conceived as a constitutional law.12The theory held that there was a principle which was regarded as universal law that ruled the world.13 Both the leaders who ruled and those subjected to the law justify how the whole world had a direct line governed by the law.14 The king was regarded to have divine power to rule and the king himself ought to have a right to rule directly from God not from consent of people.15 He was taken to be the judge of those who were living and to the law because people believed that, the law made the king to be powerful with a final word in the society as he was taken to represent rule of law.16 During Mediaeval period, lawyers started to realize the wide scope of the royal prerogatives making them to demand that, the king could do certain things in some certain ways.17 It was not until the seventh century that the British parliament limited the powers of the monarchy, the rule of law meant the supremacy in all parts of England both enacted and unenacted rules.18 10 W. Kenneth Dam, The Law-Growth Nexus: Rule of Law and Economic Growth Development, 1st Ed (Virginia:R. R. Donnelley Co. Ltd, Harrisonburg,2006) at31. 11 I. Brownlie,Basic Documents on human Rights (London: WilliamClowes,1977) at 440. 12H. Fallon,The Rule of Law as a Concept in the Constitutional Discourse(1997) 97 Columbia Law Rev. 1208 at 1224 accessed on 18th.03.2014. 13J. S. Ryan, Rule of Law accessed on 18th.03.2014. 14A. Jacobson & B. Schlink, Philosophy, Social Theory and the Rule of Law, Vol. 8 (California:University of California Press,2002) at 36. 15Random House Kernerman Websites CollegeDictionary accessed on 18th.03.2014. 16O. Hood Phillip, Constitutional and Administrative Law, 5th Ed (London: Longman Publishers,1970) at75. 17D. Ross,A History of the British Nation, Ed (London: London University CollegePress,1912) at 17. 18J. Griffith,The Common Law and the Political Constitution(2001) 11 J. L. Quarter Review 42 at 64.
11. 11. 3 Rule of law in Rwanda has a sounding history from the colonial masters but gained momentum during the centralized Rwandan society before the coming of Europeans.19 Here the government was organized in a form of monarchy.20 The king (Umwami) was a sovereign ruler on the land exercising his authority over federal lords, using means of well-organized central administration.21 Like in other African Traditional societies, in Rwanda the king took the character of patriarch where every activity was centered on the male side.22 In exercising his authority the kings decision was absolute and final. This showed a historical event of the principle of rule of law.23 Around 1954, during the reign of king Rudahigwa, the ubuhake of serfdom was abolished by colonial masters (Belgians and French) who were mandated to occupy Rwanda, Burundi and Belgian Congo.24 The Ubuhake was replaced by a principle of equality where all the local people were to be equal before the law.25 This was seen in equal payment to those with same work which entails a transition movement with the principle requirement under rule of law.26 The Rwandese Patriotic Frontier from exile decided to sign an agreement with the Rwandan government that occupied power by then.27 This was Arusha peace accord on how the Rwandan government would respect the principles of rule of law.28 This was to emphasize the principle of rule of law hinging on democracy, national unity, pluralism and respect of fundamental human rights.29 19Griffin, Supra note (18) at 68. 20W. Schabas & M. Imbleau, Introduction to Rwandan Law (Cowansville: Editions, Yvonne Blairs, 1997) at 4. 21J. Vansina,Antecedents to Modern Rwanda: The Nyiiginya Kingdom, 2d Ed (Oxford: University of Wisconsin Press, 2004) at 5. 22 Vansina, Supra note (21) at 14. 23G. Pruner, The Rwandan Crisis 1959-1994: History of Genocide, Eds (Kampala: Kampala Fountain Publishers, 1995) at 9. 24P. Bamurangirwa, Rwanda Yesterday, (Leicester: Troubador Publishing Ltd, 2013) at 30. 25T. Longman, Christianity and Genocide in Rwanda, (London: Cambridge University Press, 2009) at 71. 26M. Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of late Colonialism (London: Princeton NJ University press, 1996) at 64. 27H. Adelman & A. Suhrke, The Path of a Genocide: The Rwanda Crisis from Uganda to Zaire, Eds (New Jersey: Transaction Publishers, Ltd, 2000) at 282. 28 Arusha Peace Accord of August 4, 1993 Art. 3 (2). 29 Arusha Peace Accord of August 4, 1993, Art. 3 (4).
12. 12. 4 1.2. STATEMENT PROBLEM The massive violations of human rights that characterized many African states particularly Rwanda since 1950s that came to explode into 1994 tragedy of genocide.30 This was a result of lacking proper functioning of the principle of rule of law, yet Rwanda had signed and ratified the rule of law.31 The Declaration of Delhi in and Lagos conference on rule of law could have stopped the violations of human rights.32 All violations of rule of law that led to political conflict and economic retardation which Rwanda experienced.33 The ongoing similar problem the newly born country of South Sudan is currently facing was the very reason that prompted the author to write this dissertation.34 This is to analyze if rule of law would be a genuine reason to opt for when looking for right to development as socio-economic right.35 This is even provided for in the constitution of Rwanda of 2003 as amended up to date.36 The concept of rule of law has been perceived by many scholars as a normative figure and concept with various political dimensions of ideological agenda.37 Principle of rule of law is still exposed to too much debate on its meaning, content and how its implementation works in different independent countries.38 Democratic and non-democratic governance results in participative rules are also exposed to question like who decides what to be measured and how?39 30P. Thomas Odom, Journey into Darkness: Genocide in Rwanda (Texas: A & M University press,2005) at 162. 31 ILA Resolution 3/2000, Report of Seventieth Conference on Rule of Law, New Delhi (London: ILA, 2002) accessed on 19th.03.2014. 32 K. Reji & T. Rakkee, Right to Development in India, No. 4 (New Delhi:India,2004) at17. 33IDLO Rule of Law accessed on 19th.03.2014. 34H. McNeish, Voice of America News, Conflicts in South Sudan (Washington,5th November 2013) accessed on 19th.03.2014. 35J. Raz, Rule of Law and Its Virtue, 1st Ed (New York: Rutledge Press,2009) at 181. 36The Constitution of Rwanda (O. G. No. Special) of 2003 as amended up to date, Art. 9 (5). 37N. Haches & J. Wouters, Promoting the Rule of Law: A Benchmark Approach, No. 105 (Cambridge: Cambridge University Press,2013) at 5. 38A. Anghie, Rethinking Sovereignty in International ruleof law(2009) 5 J. Intl Law 291 at 311 accessed on 19th.03.2014. 39M. Tommasoli,Rule of Law and Democracy: Addressingthe Gap between Policies and Practices(2012) 44 Mgz of UN par 9 accessed on 20th.03.2014.
13. 13. 5 German major war criminals were charged of abominable crimes against Jews and other European minorities during World War II.40 They argued that they killed Jews because they were a threat to their government thus all acts they did were in line with their rule of law.41 Then one could wonder whether Germany by then had no rule of law and if the Jews had no right to life, liberty as well as the right to development in their respective countries?42 1.3. RESEARCH QUESTIONS (1) Cant the right to development be realized without the principle of rule of law? (2) What is the relationship between rule of law principle and the right to development? 1.4. GUIDING HYPOTHESIS In the view of the above discussion, when the government enacts laws which are in conformity with the rule of law and exercise its authority under the set principles of law in line with other international human rights instruments which emphasize development programs. Undoubtedly rule of law will create a peaceful environment with protection of peoples rights both citizens and non-citizens together with state activities that would amount to realization of the right to development. Constant discussions and research from different academic scholars all over the global have shown that, the relationship between the principle of rule of law and the right to development lies in the practice where rule of law promotes forms of governance. In which all persons, institutions and entities public and private, including the State itself are accountable to the laws and answerable to the population. Hence this will promote the culture on respect of human rights, create peaceful environment for the people to work leading to the development. 40A. Garcia,M. Silar & J. M. Torralba, Natural Law: Historical, Systematic and Juridical Approaches, Eds (Newcastle: Cambridge Scholars PublishingOrg,2008) at 420. 41P. Behrens & R. Henham, Elements of Genocide, Ed (London: Rutledge Press,2012) at 42. 42K. Neil, Laws Limits: The rule of law, the Supply and Demand of rights, 2d Ed (New York: Cambridge University Press,2000) at 41.
14. 14. 6 1.5. OVERVIEWOF THE WORK In the introductory chapter, this paper will deal with the definitions of the principle of rule of law as provided by different legal academic scholars.43Further reference goes to international conference and protocol on rule of law like Delhi Declaration of 1959 and Lagos conference on rule law of 1961.44 Still the work will look at a historical political movement that gave rise to rule of law in Rwanda.45 This was a Protocol of Agreement on rule of law between the Rwandan government by then and the Rwandese Patriotic Front in Arusha Tanzania.46 This paper will also look at the relationship between rule of law and the right to development purposely to assess the role which rule of law can play to bring about development.47 Typical attribution will be in low developed countries with a strict reference to Rwanda and South Sudan.48 These chosen countries have similar background particularly on ethnical ideological conflict that led to political instability as a result of civil wars.49This violated human rights and retarded development in these two countries.50The additional work will be dealing with the critics on rule of law from many scholars negating the role of rule of law in the right to development.51 43Rule of Law Restoration accessed on 20th.03.2014. 44A. Lane, Protocols on Rule of Law accessed on 20th.03.2014. 45 I. Gaparayi,New Times, Rwanda: Rule of Law, Political Choicesand Development (Kigali,August18, 2009) accessed on 21st.03.2014. 46 M. Mamdani, When Victims become Killers: Colonial, Nativism and Genocide in Rwanda (Kampala:Kampala Fountain Publishers Ltd,2001) at 75. 47Law and JusticeInstitutions accessed on 21st.03.2014. 48UNDP, South Sudan conflicts accessed on 21st.03.2014. 49E. Kalisa& J. Nyanshwa,The Sunday Times, South Sudan Crisis:FromPower Struggle to Ethnic Killing (Kigali, May 4, 2014) Accessed on 21st.03.2104. 50T. Freccia,Violations of Ruleof Law accessed on 21st.03.2014. 51L. Kaplan,The solicitor General and rule of law, Ed (New York: Random house Publishers,1987) at340.
15. 15. 7 CHAPTER ONE: RULE OF LAW AS VIEWED FROM DIFFERENT PERSPECTIVE SECTION 1: DEFINITIONOF RULE OF LAW Rule of law in its most basic form is a principle that was put forward by an American legal scholar Thomas Pain in his pamphlet Common sense in 1776.52 He says that Rule of law is a principle which states that no one is above the law in free society which are democratic and Republic states.53 Whereas in monarchical states the king himself is the law save the case of England after issuing of magna Charta which reduced the powers of the king.54 British jurist further contends that law should act like death which spares no one and thus law should be respected due to its supremacy.55 In 1644, Samuel Rutherford in his book Lex Rex had earlier alone advanced the meaning of rule of law which merged the first modern writing to give a theoretical principle foundation on the principle of rule of law.56 In 1748, Rutherfords work was complemented by a French Philosopher in his famous book the spirit of laws.57 All these writings and suggestions inspired and created a great influence on formation of continental European laws which reflected the principle of the rule of law.58 This helped the formation of the modern Anglo-American thinking hallmarks of adherence to the rule of law which commonly include a clear separation of powers.59 Hence reflects the principle of the rule of law.60 52T. Pain,The Common Sense, Vol. 1 (Philadelphia:Gutenberg Project Publishers,1776) at41 accessed on 20th.03.2014. 53Pain,Supra note (52) at 44. 54A. B. White, The Name of Magna Carta:English Historical Review (1915) 30 J. E.H. Review 472 at554 accessed on 20th.03.2014. 55R. Lempert, Growing up in Law and Society: the Pulls of Policy and Methods (2013) 9 J. Intl Law 15 at 32. 56S. Rutherford, Lex, Rex: The Law and The Prince (Colorado:Portage Publications,1644) at19. 57T. Nugent, The Spirit of the Laws, Vol. 1 (London: J. Nourse Press,1777) at 221. 58 Encyclopedia Britannica,Ruleof law accessed on 12st.03.2014. 59 G. Sarah Berb, Rule of law within European communities, 2d ed (New York: R. Donnelley Ltd, 2002) at10 60 Berb, Supra note (59) at 14.
16. 16. 8 In the legal dictionary, the concept of Rule of law is perceived as rule under law or rule according to a higher law.61 However, the definition concedes that rule of law is an ambiguous expression that can mean different things in different contexts.62 In one context the term means rule according to law means, no individual can be ordered by the government to pay civil damages.63 No one should suffer criminal punishment except in strict accordance with well- established.64 These laws and procedures should be clearly defined with well phrased punishments thus this will entail the principle of the rule of law.65 In the second context, the term means rule under law which says that no branch of the government is above the law a reason why each should work in checks and balances.66Thus no public official may act arbitrarily or unilaterally outside the law which means rule of law.67 In a third approach, the term means rule according to a higher law.68 The rationale behind this was that; no written law may be enforced by the government unless it conforms to certain unwritten laws.69 These laws should be in line with universal principles of fairness, morality and justice that reflect human legal systems which will entail the principle of rule of law.70 In 1885, Dicey explained rule of law from his first published work.71 This work was based on the powers of the law, where he dealt with three guiding principles of rule of law which characterize the modern constitution of England.72 Dicey and Kalven discussed three distinct elements, the first defined rule of law as; Absence of arbitrary power.73 61 Berb, Supra note (59) at 16. 62 The Free Dictionary,Rule of Law accessed on 21st .03.2014. 63The Legal Dictionary,Rule of Law Accessed on 21st .03.2014. 64 The Constitution of the Republic of Kenya Revised Edition of 2010, Preamble. 65 Ibid. 66 The Legal Dictionary,Rule of Law Accessed on 21st.03.2014. 67A. Cass Rolland,Ruleof Law in America (2001) 65 J. Politics 615 at617. 68A. Cass Rolland, Ruleof Law in America, (Baltimore: Johns Hopkins University Press,2001) at40. 69 A. Dicey, Law of the constitution, 10th Ed (London: Random House Co. Ltd, 1959) at 187. 70 Dicey, Supra note (69) at 192. 71 M. D. Walters,Dicey On Writingthe Law of the Constitution (2012) 32 Oxford J. L. Studs . 21 at 27. 72Walters,Supra note (71) at 29. 73B. Li, What is Ruleof Law accessed on 22nd .03.2014.
17. 17. 9 The second asserts that, no man should be above the law and no man should be punished except for a distinct breach of law established in the ordinary legal manner before ordinary courts.74 This meant the principle of rule of law.75 Legal scholars from world justice project like Juan Carlos Botero, Robert, L. Nelson, and Christine Pratt understand rule of law as the underlying frame work of rules and rights that make prosperous fair justice possible.76 This means a system in which no one including the government is above the law.77 All these laws should protect fundamental human rights as well as be accessible to all regardless of sex or any other differences hence reflecting the principle of the rule of law.78 Other scholars concur with Diceys arguments where he said that, a man should not be punished without a breach of law.79 This argument seems contrary to some states jurisdictions that punishes acts or omissions which were not punished at that time they were committed.80 If these acts or omissions are considered criminal, they are charged and punished following the principles of law recognized by the community of nations.81 Then rule of law is recognized within the international community.82 Research on principle of rule of law say that, rule of law is the most important political ideal today where all developed and still developing states cannot realize the right to development without favorable practice of the rule of law.83 74H. Kalven Junior, The Quest for Middle Range: Empirical Inquiry & Legal Policy, Ed (Oxford: Englewood Cliffs,NJ Prentice-Hall,1968) at58. 75 D. Basu,Introduction of the Constitution of India, 18th Ed (New Delhi:Raj PrintingLtd, 1997) at 824 76World JusticeProject, Rule of Law Accessed on 22nd .03.2014. 77 Basu,Supra note (75) at 826. 78 R. Michener, The Balance of Freedom: Political Economy, Law, and Learning, Ed (New York: Paragon House, 1995) at 78 accessed on 22nd .03.2014. 79 The Free Dictonary Retroactive actsaccessed on 22nd .03.2014. 80E. Kant, Retributive Theory of Punishment: Philosophy of Law, P. II (Ebensburg: T &T. Clark Co Ltd, 1887) at 24. 81 P. Schofield,The Legal and Political Legacy of Jeremy of Bentham (2013) 9 J. L. & Politics51 at70 accessed on 23rd.03.2014. 82 Schofield,Supra note (81) at 81. 83 B. Tamanaha,Rule of Law: History, politics and Theory, 1stEd (London: Cambridge University press,2004) at 21.
18. 18. 10 SECTION 2: HISTORYAND ORIGIN OF THE PRINCIPLE OF RULEOF LAW The history of rule of law stems far back from many traditions and continents whose theories seem to be intertwined with the evolution history of law itself.84 Much work has been written by different authors who seem to have the same views on the history of rule of law.85 Some historical sources say that, rule of law originated from the Code of Hammurabi which was promulgated by the king of Babylon around 1760 B.C.86 These codifications of law merged as the first examples that were presented to the public and applied to the arbitrary acts of ancient rulers.87 Two thousand years ago, Aristotle emphasized that, The rule of law is better than that of any individual which signified the history of the principle of rule of law.88 Aristotles augment was in line with Bractons writing in the first half of 13th century where he was quoted saying that; both rulers and the ruled should be subject to the law.89 This showed a historical origin of the principle of rule of law.90 In the Arab world, the concept of rule of law was conceived in away where a rich tradition of Islamic law embraced the notion of supremacy on law.91 Law entailed core principles of holding the government authority to account through placing the wishes of populace before the rulers which depicted the history the rule of rule.92 84 P. Selznick, Law, Society and Industrial Justice, (New York: Russell SageFoundation Press,1969) at 106. 85A. Dicey, Introduction to the Study of the Law of the Constitution, (Indiana:Polis Liberty Fund Ltd, 1982) at 73. 86 C. Horne, The Code of Hammurabi: Introduction, Ed (New York: Babylonia Forgotten Books, 1915) at174. 87P. Hassall History of Ruleof Law accessed on 23rd.03.2014. 88Y. Jiyuan,The Ethics of Confucius and Aristotle: The Mirror of Virtue, (London: Rutledge Publishers Ltd,2007) at 47 accessed on 23rd.03.2014. 89 L. Mayhew, Law and Equal Opportunity (Cambridge: MA; Harvard University Press,1968) at45. 90 Mayhew, Supra note (89) at 53. 91D. M. Mednicoff, The Rule of Law and Arab Political Liberalization(2006) 9 J. L & Pol.Studs 50 at 57. accessed on 24th.03.2014. 92 J. Brown, The Rule of Law in the Arab World: Courts in Egypt and the Gulf, 2d Ed (New York: Cambridge University,1997) at 113.
19. 19. 11 Heads of governments could sometimes be answerable for their acts once found contrary to the populations expectations.93 This would be found mainly in the moral and philosophical traditions across Asian continent including Confucianism which meant rule of law.94 Regarding Anglo-Saxon and American context, the Magna Charta of 1215 became an essential prominent document.95 This document came to check and where necessary stop the arbitrary acts of the king and other officials thus meant reflection of rule of law.96 These officials could wake up one morning and over step their powers to be overall top heads in their respective societies thus a kind of checkup which dates the history of rule of law.97 This emphasized the importance of the judiciary together with the role judicial process as a fundamental characteristic of the principle of rule of law.98 Basing on the European conception, constitutionalism was the basic notion of rule of law and it had a particular focus on states of continental Europe.99 Recent attempts have been made to assimilate the meaning of rule of law to have light on this rich history with clear understanding of the principle of rule of law.100 This would help both historians and legal scholars to understand the principle of rule of in easiest ways.101 The modern conception of the rule of law has developed as a clear concept distinct from the rule of man.102 93Lawyers and Jurists,Ruleof Law accessed on 24th.03.2014. 94E. Cotran & O. Adel Sheriff, Democracy: The rule of law and Islam (Brill: 1999) at153. 95 V. Ralph Turner History Today accessed on 24th.03.2014. 96 The Biography of KingJohn, Rule of Law accessed on 24th.03.2014. 97M. Davis,The Politics of Law Philosophy: A Commentary on Aristotles Politic, 3d ed (Row man & Little Field Publishers Inc,1996) at49. 98L. Morton, Law, Politics and Judicial Process in Canada, Ed (Canada:University of Calgary Press,2002) at415. 99D. Boucher, The rule of law in the Modern European state (Oakeshett: Cardiff University Press,2005) at92. 100 J. Stoner, Common Law and Liberal Theory (Lawrence: University Press of Kansas,1992) at25. 101Stoner, Supra note (100) at 29. 102 P. Costa & D. Zolo, The Rule Law: History, Theory and Criticism, Eds (The Netherlands: Springer PublishingCo. Ltd, 2007) at73.
20. 20. 12 This involves the system of governance and development based on non-arbitrary rulers which shows a clear image of rule of law principle.103 This principle of rule of law is deeply linked to the principle of justice which involves an idea of accountability and fairness in the protection and vindication of human rights.104 It extends very far to prevention and punishment of social devices which depicts the principle of rule of law.105 Long before the formation and rise of the United Nations, state leaders were working tirelessly to establish a rule of justice since the days of Napoleon Bonaparte of France in 1815.106 The agitation continued till the end of World War II to restore international peace with an idea of establishing an international community based on the principle of rule of law.107 It was of recent when United Nations introduced the concept on the rule of law where it included the meaning of rule of law in the preamble of the charter.108 Among its aims is to establish conditions through making treaties for the states to respect the obligations arising from their contracts.109 This is for the purposes of justice and peace reflecting the principle of rule of law.110 This facilitated the birth and rapid merging of a new world concept of the right to development.111 It became a measure of states based principles on running the state activities in line with the principle of the rule of law.112 103 A. Anter, Max Webers Theory of Modern State: Origin, Structure and Significance (London: PalgraveMacMillan Publishers Ltd,2014) at 46. 104 International Commission of Jurists (ICJ) PromotingAccountability through the Human Rights Bodies (Geneva, September 20, 2012) accessed on 26th.03.2014. 105D. Terrance Miethe & L. Hong, Punishment: A Comparative Historical Perspective, 1stEd (Cambridge: Cambridge University Press,2005) at 15. 106S. Sivagnanam,Principles of Natural Justice(Tamil Nadu State Judicial Academy, June 1, 2009) accessed on 26th.03.2014. 107History of United Nations,PresidentD. Franklin Roosevelt,Declarations by United Nations (New York, January 1, 1942) accessed on 26th.03.2014. 108 Charter of the United Nations in Preamble. 109 Charter of United Nations of 26th June 1945 Art 1 & 2. 110 Ibid. 111 E. Dumont, The British Constitution and French Revolution (2007) 50 J. Intl HRts 23 at 47 accessed on 26th.03.2014. 112 Dumont, Supra note (111) at 52.
21. 21. 13 The history of rule of law in Rwanda is depicted from the pre-colonial Rwanda where the government was organized in a monarchy form.113 During this period, the king (Umwami) was a sovereign ruler ruled with the help of chiefs or feudal lords using means of centralized administration which entail rule of law.114 All powers were fused to the king even life of the local people in the society, a character that shows powers of the law reflecting the presence of the principle of rule of law.115 All in all the research show that whether Rwanda or any other society had principle governance which reflected the principle of rule of law in their respective societies.116 Hence it is clearly evident that the history of rule of law was present in all societies though had a different implementation.117 SECTION 3: CHARACTERISTICS OF RULE OF LAW According to Professor Albert Vienne Diceys writings about rule of law and his enduring significance holds much content on the characteristics of law as.118 The supremacy of law which means that all persons (individuals and governments) are subjects to law. Legislation should be prospective and not retrospective. There should be an independent judiciary.119 There should be complementarities between exercise of parliament of legislative power and restrictions on exercise of legislative power by the executive.120 Finally the presence of underlying moral basis for all laws even as stipulated in the constitution of the Republic of Rwanda as amended up to date in its articles 1 up to three.121 113 Schabas & Imbleau,Supra note (20) at 4. 114M. Harvey Weinstein, W. Sarah Freedman & T. Longman, The Teaching of History of Rwanda: A participatory Approach, (Kigali: National Curriculum Development Center, 2006) at 8. 115 Schabas & Imbleau,Supra note (20) at 4. 116R. Oliver, The E. African Interior: The Cambridge History of Africa, ed, Vol. 3 C.1050-1600(London: Cambridge University Press, 1977) at 643. 117 Oliver,Supra note (116) at 674. 118 M. Laughlin,Public law and Political theory (Oxford: Oxford University Press,2003) at 10. 119 The Constitution of the Republic of South Africa Act, No. 108 of 1996 as Amended up to Date, Art. 174 (2). 120Dicey, Supra note (85) at 190. 121The constitution of the Republic of Rwanda (O. G. No. Special) of 2003 as amended up to date Art. 9.
22. 22. 14 SECTION 4: MODERNCONCEPTION OF THEPRINCIPLE OF RULE OF LAW The modern world perceives the concept of rule of law from the tragedy which the international community witnessed during the period 1933-1945.122 During this period, people from different countries especially Europe, Asia and few from America perished in unnecessary war.123Since then the international community decided to make the principle of law an issue.124 The United Nations formulated the basic elements of rule emphasizing on the rule of law as an everlasting idea to unite all world societies in early transition.125 This was to help poor societies and most affected areas to uplift their state activities particularly to every act done encompassing all legal systems reflecting the principle of rule of law.126 Delhi Congress is praised to have tried much and gave rise to three important elements in the concept of the Rule of Law reflecting the modern concept of this fundamental principle.127 It laid down three elements, first being that, the individual is possessed with certain rights, freedoms and he/she is entitled to protection of these rights by the State.128 This is a clear manifestation of the rule of law.129Secondly, there is an absolute need for an independent judiciary and bar as well as effective mechanism for the protection of fundamental rights that goes with freedoms.130 This would entail the practical implementation of the rule of law.131 122The Bad War,History of World War II accessed on 28th.03.2014. 123World War II,Many People Died in War accessed on 28th.03.2014. 124United Nations Rule of Law Website and Document Repository, Rule of Law Issue accessed on 28th.03.2014. 125United Nations Website, United Nations Approach to the Rule of Law Assistance(New York, April 12, 2008). accessed on 28th.03. 2014. 126J. Martin History of Rule of Law accessed on 28th.03.2014. 127E. Angell, The Rule of Law at the New Delhi Congress of the International Commission of Jurists, Vol. 3, No. 2 (New York: American Bar Association,1959) at22. 128 Angell, Supra note (127) at 24. 129 Angell, Supra note (127) at 27. 130 Angell, Supra note (127) at 29. 131 Angell, Supra note (127) at 41.
23. 23. 15 Thirdly; there should be a need for the establishment of social, economic and cultural conditions which would permit all citizens to live in dignity so as to fulfill their legitimate aspirations.132 Once the legitimate aspirations are fulfilled as a result of law, it reflects rule of law.133 In 1959, the commission held in Netherlands for the preparation of the congress meeting where they drafted working paper on the rule of law.134 This paper was drafted as a sign of respect to international norms which reflected the principle of rule of law.135 The paper was based on information gathered on international survey by lawyers and legal institutions purposely to lay a firm foundation for the principle of rule of law.136 The information was divided into sections of legislative and the rule of law, the executive and the rule of law, criminal process and the rule of law.137 The last section comprised of the judiciary and legal profession, in which all reflected the principle of rule of law.138 This was in line with Lagos conference on rule of law which certifies that the principle is a dynamic concept that should be employed to safeguard human rights.139 It advances the will of the people together with their political rights reflecting the rule of law principle.140 The thesis and writings from the authors of both 19 and 20th centuries concentrated their doctrines much on equality before the law, emphasizing individual rights with hopes to reach the principle of rule of law.141 132A. Raj Rule of Law Conference accessed on 30th.03.2014. 133 Ibid. 134 United Nations, Year Book of International Law Commission, Vol. 1 (New York: United Nations Publication No. 59, Vol. 1, 1959) at 30. 135United Nations, Supra note (134) at 41. 136 T. Frank,International Commission on Rule of Law accessed on 30th.03.2014. 137 Ibid. 138T. Treves, United Nations Commission of Juristsaccessed on 30th.03.2014. 139 A. Larson,African Commission on the Rule of Law: A Report on the Proceedings of the Conference, (Geneva: International Commission of Jurists,1961) at177 accessed on 30th.03.2014. 140 Larson,Supra note (139) at 179. 141 Wade & Phillips, Supra note (5) at 33-34.
24. 24. 16 This was emphasized by a British jurist whose effort was much on supremacy of law.142 He focused on predominance of legal spirit where he said that, people should have equal rights and duties so as to reflect the principle of rule of law.143 Considering the reality, the public authority has much stronger power than that of the ordinary local people.144 This power becomes flexible whenever the country follows the principle of governance and democracy which indicts the rule of law.145 The turning point to the respect of the principle of rule of law in Rwanda was discussed during Arusha Protocol on rule of law.146 The Protocol on rule of law was signed between the Rwandan government by then and Rwandese Patriotic Frontier.147 As a result, the protocol brought tension because the government was obliged to implement terms of the protocol.148 The protocol was to hinge on national unity, democracy, pluralism and respect of human rights.149 In a modern world most countries have advanced justice system under the pretext of rule of law where special offices have been established.150 Like the Inspector General of Government (IGG) in the Republic of Uganda and the office of Ombudsman in Rwanda.151 Similar efficient office of ombudsman was established in Sweden whose function is to investigate complaints of injustice to citizens resulting from faulty administrative acts.152 This shows a form democratic state reflecting the principle of rule of law.153 142 Dicey, Supra note (69) at 194. 143 Dicey, Supra note (69) at 197. 144 Dicey, Supra note (69) at 202. 145 Dicey, Supra note (69) at 203. 146 Schabas & Imbleau,Supra note (20) at 11. 147 Schabas & Imbleau, Supra note (20) at 12. 148 Brownlie, Supra note (11) at443. 149 Brownlie, supra note (11) at 445. 150MD. Haider Ali,Rule of Law accessed on 30th.03.2014. 151 The Constitution of the Republic of Uganda of 1995,Art 225 (1) (a) & (e). 152S.E. Eufrecht, Public Administration and Public Policy, The Ombudsman Office, Vol. II (Anchorage: University of Alaska,1976) Par 4 accessed on 30th.03.2014. 153Eufrecht, Supra note (152) at 7.
25. 25. 17 SECTION 5: THE OBJECTIVES OF THE PRINCIPLEOF RULE OF LAW After the end of World War II in 1945 victorious countries including USA, France, Russia and Britain with an idea from United States President established international military tribunals.154This had the purpose of trying some Germany and Japanese major war criminals in Nuremberg and Tokyo Military tribunals.155Thus this served as a beginning of new international order to reflect the principle of rule of law.156 The trial served as a future deterrence to all political leaders and military personnel never to take up arms aimlessly to breach international peace violating peoples rights hence preserving the rule of law.157 During the same year the international community decided to convene in San Francisco to form international organization.158 As a symbol of unity the organization was to help many if not all states to work together in peace hinging to the principle of rule of law.159 They created United Nations to hinder any state or individual wishing to abuse power by over stepping to their national authority and cause unnecessary human suffering.160 Once this was achieved, the objective of the rule of law would be realized.161 Thus the charter of United Nations included rule of law to secure peace, harmony and safeguard fundamental rights of worlds population against arbitrary acts hence reflecting on the principle of rule of law.162 In respecting the principle of rule of law as define in all the protocols being Delhi declaration, Lagos protocol.163 More attention was paid to Arusha protocol purposely to restore unity in 154A. Mierzejewski, The Collapse of the Germany War Economy, 1944-1945:Allied Air Power, 1stEd (North Carolina:TheUniversity of North Carolina press,1988) at31 accessed on 2nd.04.2014. 155 Nuremberg Charter (London Agreement) of 8thAugust 1945 in Preamble. 156Ibid. 157Nuremberg Charter (London Agreement) of 8thAugust 1945,Art. 3. 158 Charter of United Nations of 1945 in Preamble. 159 Ibid. 160 Charter of United Nations of 1945,Art. 2(4). 161 Charter of United Nations of 1945,Art. 27. 162 Charter of United Nations of 1945, Preamble. 163 The Office of United Nations High Commissioner for Human Rights, Rule of Law Protocols for Post-Conflict States (New York and Geneva, 2009) accessed on 4th.04.2014.
26. 26. 18 Rwanda where the aspect of reconciliation was sorely needed to promote rule of law.164 It was the principle of rule of law which could serve a particular importance though it failed to control the illegal acts that were perpetrated in Rwandan territory.165 Fortunately peace was promoted later showing the purpose of the rule of law.166 If the protocol after the negotiations was respected the principle could have ensured that all the problems regarding national unity notably ethnic, regionalism and intolerance were checked hinging on the principle of rule of law.167 These Obstacles had subordinated the national interests which would have helped local people to live together in peace and harmony hence the importance of rule of law.168 The fact that Arusha protocol was being a part of the fundamental laws in Rwanda, all people were to be bound by its provisions without discrimination thus implementing objective of the principle of the rule of law.169 In all the protocols of rule of law, there appeared a continuation of rule of law to ensure fundamental rights of people by respecting the practices of democracy.170 This had an objective of reflecting on the principle of rule of law.171 Rule of law is realized in most cases with presence and effective separation of powers where each organ should be independent from each other.172 It should be recommended that, although emphasis was put on separation of powers the question to a raise is whether there is existence of pure separation of powers?173 Whether no pure separation of powers, whichever exists is a positive trend showing how the society implements the principle of rule of law.174 164 Annex II of Arusha Protocol on ruleof lawof 1992,Art. 2. 165Annex II of Arusha Protocol on Rule of Law of 1992, Preamble & art. 1. 166 Annex II of Arusha Protocol on Rule of Law of 1992,Preamble. 167 Schabas & Imbleau, Supra note (20) at 241. 168 Schabas & Imbleau, Supra note (20) at 290. 169Annex III of the Arusha protocol on Rule of Law of 1993 art. 2. 170 Charter of United of 1945 in Preamble. 171 G. Smith, Rule of Law Emphasis accessed on 8th.04.2014. 172Annex III of the Arusha Protocol on Rule of Law, Art. 6 (1). 173 B. Ackerman, The New Separation of Powers (2000) 113 J. Harvard Law Review 633 at 712 accessed on 8th.04.2014. 174 T. Persson,G. Rolland & G. Tabellin,Separation of Powers and Political Accountability(1997) 112 Quarterly J. Econ 1163 at 1202 accessed on 8th.04.2014.
27. 27. 19 The rule of law ensures that the fundamental human rights especially the right to liberty which should be written and entrenched in the constitutions of all countries.175 Thus this would mean the importance of rule of law.176Such personal liberty should not in peace time be restricted without trial in courts of law.177 Writing and entrenching fundamental human rights and liberties in all constitutions would need a proper practice of such rights reflecting the importance of rule of law.178 The respect for fundamental rights and liberties should always be guaranteed whether in peace or during war time.179 Clear punishments in case of massive violations of these rights should be set before hence this reflects the importance of rule of law.180 Furthermore, the principle of rule of law guarantees the existence of an effective functioning of government with exclusive capacity of maintaining law.181 It extends to keep order and ensuring strong social and economic conditions with welfare of people in the society.182 However, there is a consideration in all declarations on rule of law which gave a standard meaning to rule of law in collaboration with the doctrines of academic scholars hinging on the role of principle of rule of law.183 SECTION 6: THE SOURCES OF THE PRINCIPLE OF RULE OF LAW The principle of rule of law applies to both national and international levels.184 At national level, United Nations supports a rule of law framework that includes a constitution or its equivalent as the highest law on the land.185 175 Raz, Supra note (35) at 187. 176 Ackerman, Supra note (173) at 697. 177 Stoner, Supra note (100) at 29. 178 H. Hangeul, How is International Human Rights Law Enforced (1998) 74 J. Intl HRts Law 1397 at 1401 accessed on 8th.04.2014. 179 Hangeul, Supra note (178) at 1406. 180 A. Tanja Borzel & T. Risse,Workshop on Democracy Promotion, European Union Policies,for Promotion of Human Rights, Democracy and the Rule of Law (Stanford University:October 5, 2004) at 28. 181 Y. Dezalay & M. Rask Madsen, The Force of lawand Lawyer (2012) 8 J. Intl Law 433 par 440 182 Dezalay & Madsen, Supra note (181) at 442. 183 T. Carothers,The Rule of Law Revival(1998) 7 Intl Journal on HRts 95 at 97 accessed on 8th.04.2014. 184 Charter of United Nations of 1945, Preamble. 185Charter of United Nations of 1945,Art. 4.
28. 28. 20 The constitution should have a clear and consistent legal framework together with implementation of strong institutions of justice, governance and security.186 The structure of human rights that is well developed and financed hence figures out source of rule of law.187 Thus Sources of rule of law dates far from all international, regional and national legislatives which in many cases site different aspects that are related to law itself.188 All several legal sites are clear sources of rule of law.189 1. International Instruments; Magna Carta of 1215 Rule of law as a fundamental principle has been affirmed in constitutional and international instruments as old as Magna Carta.190 It sets out the rights of various classes of a mediaeval community.191 People were to live according to their different needs where the church was to be free; London and other Cites were to enjoy their liberties and customs hence it dates the source of rule of law.192 The Merchants were not to be subject to unjust taxation, there was a famous clause which stated that, no man should be punished except by the judgment of his peers.193 This reflected the source of the principle of rule of law.194The Magna Carta asserts that none should be denied justice.195 The above clauses embodied protection against arbitrary punishment and emphasized much on fair trial by jury and to free justice hence entails the source of rule of law.196 186 P. Boom, Human Rights and Rule of Law: Whatis the Relationship(2004) 20 J. Law Review par 80 accessed on 10th.04.2014. 187 Dicey, Supra note (85) at 79. 188 Boom, Supra note (186) at 85. 189 Boom, Supra note (186) at 87. 190V. Ralph Turner History Today accessed on 12th.04.2014. 191 M. Ohnesorge, Source of Rule of law (2007) 3 J. Intl Law 99 at 114. 192The Biography of KingJohn, Rule of Law accessed on 12th.04.2014. 193 Dicey, Supra note (85) at 87. 194 Dicey, Supra note (85) at 90. 195 Dicey, Supra note (85) at 93. 196 G. Murphy Magna Carta accessed on 12th.04.2014.
29. 29. 21 The observance of Magna Carta came to be regarded by both lawyers and politicians as synonym for constitutional governments.197 Thus this principle is not a new concept since it dates as far back as a period of 1215 reflecting the source of rule of law.198 Charter of United Nations of 1945 Today, the concept of rule of law is embedded in the charter of the United Nations as a source of law.199 In its preamble one of the aims of the charter is to emphasize the principle of rule of law in establish conditions under which justice and respect for obligations arising from treaties and other sources of international law can be maintained hence reflects the source of rule of law.200 The United Nations primary purpose is to maintain international peace, security and bring about peaceful means in conformity with the principles of justice.201 It adjusts settlement of international disputes which might lead to a breach of the peace hence source of rule of law.202This is in conformity with Universal Declarations of Human Rights of 1948 as a historical source of rule of law.203 International recognition that all human beings have fundamental rights and freedoms dates the source of rule of law.204 It recognizes that It is essential if a man is to be compelled to have recourse as a last resort to rebellion against tyranny and oppression, thus dates the source of rule of law.205 International Congress on rule of law Athens 1955 This was the first commission of Jurists from forty eighty countries around the world that convened in Athens to consider the minimum safeguards as a necessity to ensure the source rule 197S. De Smith & R. Brazier, Constitutional and Administrative Law, 7th Ed (London: Penguin Group Ltd, 1994) at 18. 198De Smith & Brazier, Supra note (197) at 20. 199Charter of United Nations of 1945, preamble. 200Ibid. 201Ibid. 202Charter of United Nations of 1945,Art. 3. 203 Universal Declaration of Human Rights of 1948, Preamble. 204Ibid. 205Universal Declaration of Human Rights of 1948, Art. 1.
30. 30. 22 of law.206 It extends to the protection of individual rights and freedoms against arbitrary actions by the state officials and individuals to reflect the source of the rule of law.207 The result of this congress was to accept the Act of Athens as a turning point to the respect of the principle of rule of law hence becoming the source of rule of law.208 Declaration of Delhi on rule of law of 1959 This was the second session of international commission of Jurists affiliated to United Nations Science and Cultural Organization (UNESCO) to reflect source of rule of law.209 In 1959 over 185 judges, Lawyers and law professors from 53 countries met in Delhi for international commission of Jurists.210 They made a declaration on fundamental principles of rule of law thus dating the source of the rule of law.211 Delhi declaration on the rule of law implies respecting certain rights and freedoms which reflects the source on idea of rule of law.212 Declarations emphasized on governance which promotes social, economic and cultural conditions hence reflects source of rule of law.213 The declaration was credited to have deeply dug rule of law as a source of conflict management with strategy and foundation to safeguard the fundamental rights and liberties hinging source of the source of the rule of law.214The declaration suggests that rule of law requires legislative power to be subject to judicial review hence reflecting source of rule of law.215 206 B. Howard el al, The International Commission of Jurists: Global Advocates for Human Rights (Athens: Greece, 1955) at 23. 207 Howard et al,Supra note (206) at 28. 208J. Marsh,The Rule of Law in a Free Society (New Delhi: India,1959) at5. 209J. Kunz, The ChangingScience of International Law (1962) 56 American J. Intl Law 488 at 492 Accessed on 12th.04.2014. 210 Marsh,Supra note (208) at 16. 211 Marsh,Supra note (208) at 18. 212J. Redheesh Rule of Law Declaration accessed on 14th.04.2014. 213 Marsh,Supra note (208) at 11. 214 Kunz, Supra note (209) at 496. 215G. Ginsburgs,Peking-Lhasa-New Delhi (1960) 75 J. Political ScienceQuarterly 338 at354 accessed on 14th.04.2014.
31. 31. 23 Lagos conference on rule of law of 1961 This was an African conference on the principle of rule of law which had a purpose of helping in restructuring the debate on rule of law.216 Hence this conference reflected the source of the principle of rule of law.217 The debate was under aegis of international commission of Jurists and it comprised of 194 judges, practicing lawyers and lectures from law universities.218 Many were from African countries and few from other continents.219 It did reach some significant and detailed conclusions on special aspects of rule of law.220 2. Advisory Opinions This is taken to be opinions of different academic scholars, authors and writers who worked hard to leave behind papers, journals, book and other forms of writings to serve as a legacy and source of rule of law.221 He gave the principle a theoretical foundation digging the source of rule of law from the Latin phrase Lex, Rex meaning The law is king and should be applicable to any national and international conflict that restrict freedom.222 British jurist was the most influential writer of the modern development on legal concept that has been traced through history of many ancient civilizations thus reflects the source of rule of law.223 In 1690, the author of the second treatise of government said that rule of law govern everything on the land. In 1748, in the the spirit of laws, the writer emphasized on supremacy of law.224 In 1755, Samuel Johnson phrased rule of law dictionary to complement the work of other authors.225 216 International Commission of Jurists, African Conference on Rue of Law: Lagos, Nigeria (Geneva, 1961) at 14. 217 International Commission of Jurists, Supra note (216) at 16. 218 A. Mathews, Freedom, State Security and Rule of Law, Ed (California:University of CaliforniaPress,2007) at47. 219 Mathews, Supra note (218) at 50. 220 International Commission of Jurists, Supra note (216) at 30. 221 R. Commons, Legal Foundations of Capitalism, 2d Ed (New York: The Macmillan Co.Ltd, 1924) at 394. 222A. Verdross,Jus Dispositivumand Jus Cogens in International Law (1966) 3 J. Intl Law 55 at 56. accessed on 14th.04.2014 223Dicey, Supra note (85) at 96. 224J. Locker, The Second Treatise of Civil Government, 1sted (Cambridge: ChristCollegePress,1969) at 53. 225T. Pain,The Common Sense, 1st ed (Philadelphia:University of PennsylvaniaPress,1776) at57.
32. 32. 24 In 1980, rule of law was enshrined in the Massachusetts Constitution by seeking to establish a government of laws and not of men hence all these emphasis shows source of the principle of rule of rule.226 The Roman statesman said that We are all servants of the laws in order we may be free this challenged many roman to the extent that during roman republic.227 It limited the power of magistrates who would be put on trial when their terms of office expired.228 During this period in the Roman Empire, the sovereign was personally immune (Legibus Solutu) but those with grievances could sue treasury.229 In 1215, Archbishop Stephan Langton gathered the Barons in England and forced the king John to follow rule of law thus, this reflects source of rule of law.230 This scared future sovereign and magistrates back under the rule of law purposely to preserve ancient liberties as seen in the James Is petition of England.231 One scholar was of the view that rule of law is an ideal to which appeals are regularly made.232 This was a clear manifestation that rule of law existed thus the above petition serves as its source.233 3. Constitutions A constitution is normally a document having a special legal sanctity which sets out the framework and the principle functions of the organs of government.234 It is a state which declares the principles governing the operations of all organs, institutions and state activities.235 226J. Adams, Massachusetts Constitution(1780) 8 American Law Journal 229 at230. accessed on 14th.04.2014. 227M. Tullius Cicero,LawQuotations accessed on 14th.04.2014. 228J. Linder Silber man, Masters and Magistrates PartII:The American Analogy (1975) 50 NY. Law Rev. 1297 at 1297 accessed on 15th.04.2014. 229B. Tamanaha,Rule of law: History, Politics and Theory, 4th Ed (London: Cambridge University Press,2004) at 60. 230Tamanaha,Supra note (229) at 72. 231 J. Evans et al,Administrative Law Cases, Text and Materials 4th Ed (London: Sweet and Maxwell, 1995) at 27. 232 Evans et al,Supra note (231) at 31. 233 Evans et al,Supra note (231) at 34. 234Oxford Dictionaries,The Constitution accessed on 15th.04.2014. 235C. Thomas Grey, The Constitution as Scripture, Vol. 37, No. 1 (Stanford: Stanford Law Review, 1984) at 20.
33. 33. 25 The Constitution is a document antecedent to government and a government is only the creature of a Constitution.236 A constitution of a country is not the act of its government but of the people constituting a government hence, this reflects source of rule of law.237 Constitution is the body of elements to which you can refer and quote article by article.238 It contains the principles upon which the government shall be established, the manner in which it shall be organized, the powers it shall have.239 It lays the mode of elections, the duration of parliaments or the powers in which the executive exercise its duties hence, the definition reflects the source of the principle of rule of law.240 According to other authors, a constitution is defined as a document that lays down the structure, organs, functions and powers of the government as well as setting out limits in form of civil liberties.241 Many countries have an element of rule of law, for instance Rwandan constitution of 2003 as amended up to date.242 The Constitution bears the fundamental principles of human rights which show clearly the source of the principle of rule of law.243 4. Protocol on rule of law of 1992 This agreement between Rwandan government and Rwandese patriotic frontier in 1992-1993 on rule of law was strictly to reflect and restore national unity, democracy, pluralism and more importantly respect for human rights.244 Thus one would say that, this was the first time in the history of Rwanda ever since the period of monarchism to introduce the concept of rule of law which meant the reflection on source of the principle of rule of law.245 236 Thomas, Supra note (235) at 25. 237 Pain,Supra note (225) at 62. 238 Thomas, Supra note (235) at 24. 239 The Free Dictionary,Definition of the Constitution http://www.thefreedictionary.com/constitution.hml. accessed on 15th.04.2014. 240T. Pain Meaning of Constitution accessed on 15th.04.2014. 241Dictionary.ComMeaning of the Constitution accessed on 16th.04.2014. 242 Schabas & Imbleau, Supra note (20) at 11. 243 The Constitution of the Republic of Rwanda of 2003 (O. G. No. Special) as amended up to date Art. 10 -45. 244 Schabas & Imbleau,Supra note (20) at 247. 245 Schabas & Imbleau, Supra note (20) at 4.
34. 34. 26 The principle used to be in the theoretical mythology, though the protocol did not contribute much as expected in the agreement.246 The reason was due to government which was reluctant to the extent of not stopping political conflict in 1990s.247 The protocol laid a firm foundation for the successor government to reflect the plans of the protocol a thing that brought a transition period of peace, harmony, national unity and community prosperity with respect to the principle of rule of law.248 SECTION 7: THE PRINCIPLE OF RULEOF LAWWITH RELATED CONCEPTS The concept of principle of rule of law can never work properly without related concepts which seem to be inseparable in as a far as rule of law is concerned.249 Among these closely inter- twinned concepts are, democracy, accountability, good governance.250 Human rights is also closely related to rule of law, this universal principle overlaps over all other concepts which a state would possess, for it to run its activities.251 It helps in a proper and smooth functioning of other institutions operating under the state which reflects rule of law.252 Rule of law explores and connects all these issues by encompassing the work which is done in general jurisprudence on the concept of law.253 It emphasizes on certainty, rules, and predictability of society actions in line with conceptions of the rule of law that also facilitates the procedure on how government reacts towards them relating to the rule of law.254 1: Rule of law and Democracy This concept of rule of law has very broad definition and interpretation.255 It becomes very difficult when estimating the interrelationship with other concepts especially the Greek concept 246 Schabas & Imbleau,Supra note (20) at 241. 247 Mamdani,Supra note (46) at 185. 248 Annex II of Arusha Protocol on ruleof lawof 1992,Art. 2. 249 Tanja & RisseSupra note (180) at 31. 250 Tanja & Risse, Supra note (180) at 20. 251 Tanja & Risse,Supra note (180) at 22. 252 D. Kennedy, The International Human Rights Movement: Partof the Problem (2002) 15 Harvard Human Rights Journal 101 at 104. 253 Boom, Supra note (186) at 89 254J. Waldron,The Concept and Rule of Law (2008) 8 Intl HRts. J. 56 at 67 accessed on 20th.04.2014. 255 Anter, Supra note (103) at75.
35. 35. 27 of democracy.256 However, democracy has been given a modern name termed as liberal democracy.257 Liberal democracy is held to be a combination of two sets of institutions one that ensures government to be accountable to popular choice and another that provides for a rule of law as its relationship.258 The liberal democracy has been historically perceived as a couple of rules which renders justice and binds the community together into one thinking basket.259 If it is fully practiced and passed to unlimited number of generations, it brings immediate measurements with quantifications of long term development in the society which links this development with rule of law.260 2: Rule of law and Good governance Rule of law is a pillar to good governance and is hedged in by a constitution that reflects rules which provides for governance, uncomplimentary interchange between traditional and modern socio-political orientation.261 Dysfunctional relationship among three arms of the government, like the rule of law in governance should realize autonomy of the judicial arm which is normally eroded and this will depict the link between governance and rule of law.262 Good governance and governance itself is a new buzzword in the discourse.263 These phenomena brought contrast to other law governed societies but Western Europe was exceptional insofar as law was institutionalized earlier and to a higher degree than elsewhere.264 256Anter, Supra note (103) at77. 257 R. Barry Weingast, The Political Foundations of Democracy and the Rule of Law, Vol. 91, No. 2 (Stanford: Stanford University Press,1997) at245. 258R. Rigobon & D. Rodrik,Rule of Law, Democracy, Openness and Income (2005) 13 RLDOI 533 at 564 accessed on 16th.04.2014. 259J. Habermans,On the Internal Relation between the Rule of Law and Democracy (2008) 3 EU. Journal Philosophy 12 at20 accessed on 20th.04.2014. 260A. ODonnell, Why Rule of Law Matters (2004) 15 Journal of Democracy 32 at 44 accessed on 20th.04.2014. 261M. Johnston, Good Governance, Rule of Law, Transparency and Accountability, (New York: Colgate University Press,2003) at 6. 262A. Udochukwu Ogbaji, Human Rights, Rule of Law and Governance: The Nigeria Paradox (Anambra State: Nwafor Orizu College of Education printingpress,1997) at 2. 263 United Nations, International Monetary and Financial Issues for 1900s, Vol. 11 ( New York/Geneva: United Nations Publications,1998) at83. 264Udochukwu, Supra note (262) at 6.
36. 36. 28 This was purposely to reflect the 1990s born concept of good governance thus called for codification and legal specialization with institutional autonomy to link good governance and rule of law.265 The great emphasis came from World Bank and other financial institutions to reflect correspondence between law, public sector and social norms thus achieving desirable governance.266 This relationship should always check uncomplimentary and dysfunctionality of rule of law which may lead tragic regimes to consequently cause political instabilities hence, if these links are respected good governance will always need rule of law.267 3: Rule of law and Accountability It has been difficult for many social and legal scholars together with state politicians to assess properly the meaning of the phrase Accountability thus some confuse it with public sector identity management.268 Although others refer it as the processes, norms, and structures that hold the population and public officials legally responsible for their actions and that impose sanctions if they violate the law.269 Rule of law will always ensure accountability which will help to check all political and social malpractices to create a reasonable society following principle norms hence the link between accountability and rule of law realized.270 Accountability is essential if systemic threats to the rule of law are to be corrected, it equals to transparency, legal frame work and it is the key component to a prosperous state following rule of law.271 265 United Nation, Supra note (263) at 84. 266E. Kofi,Global Environmental Governance: Law and Regulation for 21st Century (London: Edward Elgar PublishingCo.Ltd, 1999) at 56. 267 F. Walter,D. ClaireMair & A. Mair, Good Governance: Policy Paper, Eds (Vienna: Austrian Development Cooperation, 2011) at 8. 268 Murphy, Security Council Report, The Rule of Law: The Security Council and Accountability (New York, January 18, 2013) accessed on 20th.04.2014. 269I. Tommy, Centre for Accountability and Ruleof Law accessed on 20th.04.2014. 270 Ibid. 271 X. Zhai & M. Quinn,Bentham's Theory of Law and Public Opinion 2d ed (London: CambridgeUniversity press, 2011) at 42 accessed on 20th.04.2014.
37. 37. 29 In some countries like India, that has the largest number of poor people in the world and ranked among the most corrupt nations.272 Rule of law can help to reduce this problem of corruption hence the link between accountability and rule of law.273 Rule of law would involve fighting corruption improving beaucratic, political accountability through promoting peoples participation and public-private partnership providing room for right to development.274 This relationship show how accountability cannot be achieved without effective implementation of the principle rule of law.275 4: Rule of Law and Human Rights Introducing the principle rule of law would mean respect for human rights by analyzing constitutional and extra-constitutional governance which encompasses universal rights enabling qualities attached to human beings as it was phrased in Magna Carta.276 Magna Carta is believed to have been the first document which compiled the rules that issued the coercive means of respecting of fundamental liberties of people and this showed the link between rule of law and human rights.277 This was the first document which contains commitments of human rights by a sovereign to his people in respect to legal framework, rule of law and it never ruined governance from then.278 The issue of human rights and law itself descended from the philosophical ideas of natural right that are provided by God.279 These rights are preserved for the public good as a consideration of human rights hence this reflects the relationship between human rights and rule of law.280 272 Zhai & Quinn,Supra note (271) at 47. 273 B. Magaloni & A. DiazCayeros, Democratic Accountability and Rule of Law in Mexico, Eds (Stanford University Press,1993) at 4. 274J. Gerald Postema accessed on 20th.04.2014. 275 Magaloni & Cayeros, Supra note (273) at 6. 276C. Apodaca, The Rule of Law and Human Rights (2004) 87 Journal Intl HRts 292 at 297. 277 Apodaca, Supra note (276) at 300. 278R. Chowdhury, Subrata, Rule of Law in a State of Emergence: The Paris Minimum Standards of Human Rights Norms in a State of Emergence, (New York: St. Martins Press,1989) at204. 279 J. Kamenka & Tay, Human Rights, Legal Rights and Social Change, ed (London: Edward Arnold Kalagbor press, 2010) at 41. 280 Kamenka & Tay, Supra note (279) at 44.
38. 38. 30 Many academias especially from socio- legal sphere concede that human right is something broader in scope than a common regime of property rights.281 In civil law system which puts more emphasis on liberties, it became a focus of most academic literature on the subject.282 The scope should overlap towards the universally accepted principle of rule of law in the global world to realize the link between human rights and rule of law.283 SECTION 8: CONCEPTAND THECONTENT OF THERIGHT TO DEVELOPMENT The concept of the right to development is controversial phenomena with many complex and vague meanings which exposes it to many commentators.284 Defining the right to development is as hard as defining a right itself. This makes it hard for academic, political and social researchers to dispute whether the right to development is a right at all.285 The meaning of the right to development has been in a number of sources like Charter of United Nations 1945.286 The Universal declaration of Human Rights of 1948 made the unity of all human rights such as political, social and cultural rights together.287 It elaborated the theme that everybody was equally entitled "to all the rights and freedom set forth in that Declaration.288 The declaration specifies some articles which covers civil and political rights.289 The declaration further specifies some other articles that cover economic, social and cultural rights.290 In the preamble of each of the International Covenants on Human Rights, this right was reiterated as, "the ideal of free human beings enjoys civil and political freedom.291 Freedom from 281 M. Ignatieff,Human Rights: As Politics and Idolatry, 3d Ed (New Jersey: Princeton University Press,2003) at 22. 282 Ignatieff, Supra note (281) at 25. 283A. O. Oyalobi,Constitutionalism,Governance and Rights of Man in Nigeria(2010) 4 J. HRts. Law 65 at 71 accessed on 22nd.04.2014. 284 Ignatieff, Supra note (281) at 17. 285 D. Banisar etal, Moving from Principles to Rights: Rio 2012 and Access to Information Public Participation and Justice, Vol. 2 (Rio de Janeiro: United Nations Doc, 2012) at8. 286Charter of United Nations of 1945,Art. 55. 287Universal Declarationsof Human Rights of 1948, Art. 1. 288 Universal Declaration of Human Rights of 1948, Art. 17. 289 Universal Declaration of Human Rights of 1948, Art. 21. 290 Universal Declaration of Human Rights of 1948, Art. 22-28. 291International Covenants on Human Rights of 1966 and 1977 in their preambles .
39. 39. 31 fear and want can only be achieved if conditions are created where everyone enjoys his civil and political rights, as well as his/her economic, social and cultural rights."292 All the international instruments did not clearly define the right to development till 1981.293 African Charter on Human and Peoples Rights first recognized this right in its article 22 as a definitive individual and collective right.294 The Charter provides that; "All peoples shall have the right to their economic, social and cultural development with regard to their freedom, identity and in the equal enjoyment of the common heritage of mankind.295 It further states that; States shall have the duty, individually or collectively to ensure the exercise of the right to development."296 The right to development evolved gradually for some years till it became a powerful force in many parts of the world.297 The concern gained much of sociological work and captured the attention of international awareness which shifted its substantial efforts to the current legal systems.298 Sociologists continued their advocacy movement and manifestation of the right to development as a collective individual pathology.299 They assert that; a right is shaped by individuals interaction with states hence explaining the right to development.300 In 1986 International community delegations represented by United Nations decided to convey in Geneva Switzerland.301 They passed a resolution number 41/128 as a declaration on the right to development which contains ten (10) articles.302 292Ibid. 293African Charter on Human and Peoples Rights of October 21,1986 Preamble. 294 African Charter on Human and Peoples Rights of 1986 Preamble. 295 African Charter on Human and Peoples Rights of 1986, Art. 22 (1) & (2). 296African Charter on Human and Peoples Rights of 1986, Art. 2. 297 P. Alston, Making Space for New Human Rights: The Caseof the Right to Devel opment (1998) 1 Harvard Human Rights Journal 3 at 6. 298 Mr. O. De Schutter, Promotion and Protection of all Human Rights: Including the Right to Development, Tenth Session,Agenda Item 3 (New York: Human Rights Council,2009) at29. 299 Alston, Supra note (279) at8. 300M. Kathleen Blee & Kimberly A. Creasap,Conservativeand Right to Development Movement (2010) 20 J. Intl HRts 60 par 74. 301 United Nations Declaration on the Right to Development of 1986, Preamble. 302United Nations Resolution Number 41/128 of 1986.
40. 40. 32 All the articles are explain, emphasize and clearly distinguishes the right to development from other social-economical and political rights giving it much gravity as indivisible right.303 All these were done to elaborate more on the right to development.304 It deliberately recognizes the right to development as; comprehensive economic, social, cultural and political process.305 The recognition aims at the constant improvement of the well-being of the entire population realizing the right to development.306The declaration was to uplift all individuals on the basis of their active, free and meaningful participation in development.307 The declaration extended its importance in the fair distribution of benefits resulting from peoples efforts and emphasized states that it is their primary responsibility to create favorable conditions for the development of peoples and individuals toward the right development.308 The United Nations declaration defined the right to development in declaration as; an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development.309 The Declaration stipulates that; all human rights and fundamental freedoms can be fully realized in accordance with states legal systems.310 It continued in declaration and asserted that; the human right to development also implies the full realization of the right of peoples to self- determination.311 The declarations includes subject to the relevant provisions of both International Covenants on Human Rights and the exercise of their inalienable right to full sovereignty over all their natural wealth resources.312 303 The Geneva Assemble (Res. 47/181) on Policy Shiftof the Right to Development of 1992. 304 Ibid. 305 K. Iqbal,The Declaration on the Right to Development and Implementation, Vol. 1 (Ulster: University of Ulster Press,2007) at 9. 306B. Bankie,C. Marias & J. T. Namiseb, Towards Creating a Sustainable Culture of Human Rights, (Paris:Unesco, 1998) at 19. 307 S. Vijayashri, IndiasNational Human Rights Commission: A Shackled Commission, Vol. 1 (Boston, Massachusetts:Boston University Press,2000) at 7. 308United Nations Declaration on the Right to Development of 1986. 309 United Nations Declaration on the Right to Development of 1986, Art. 1. 310United Nations Declaration on the Right to Development of 1986, Art. 2. 311 United Nations Declaration on the Right to Development of 1986, Art. 1 (1). 312 United Nations Declaration on the Right to Development of 1986, Art. 1 (1).
41. 41. 33 In the Rwandan constitution, the right to development is not explicitly defined though somewhat recognized and emphasized in some related articles of fundamental human rights.313 1: History and Evolution of the Right to Development Tracing the history of the right to development is like trying to dig the history of mankind and history of human rights themselves.314 Some scholarly writings have tried to pass philosophical academic arguments on the concept.315 This is seen in academic statement of a Senegalese Jurist Keba Mbaye who compared history of the right to development in these asserts; a philosopher is a person who goes into a dark room on a moonless night to look for a nonexistent black cat.316 A theologian comes out claiming to have found the ct.317 A human right lawyer, after such on- site visit, sends a communication to the commission on the human rights where a member of the commission leaves the room drafting a resolution on the treatment of black cats.318 This is uncomfortably close history of the right to development.319 It is clear that historical development of human rights dates from the western world far back before and even during declarations of Magna Carta in 1215.320 It gained its momentum during eighteenth century a period when there was a waning influence of the monarchy and the growing power of the ordinary citizen.321 The Magna Carta represented an idea of human rights based on individual rights to life, liberty and personal security.322 It is important to also acknowledge that many of the core elements of human rights were present in non-western societies and other parts of the world from ancient 313The Constitution of the Republic of Rwanda (O.G. No. Special) of 2003 as amended up to date Art. 47. 314 G. Rist,The History of Development from Western Origins to the Global Faith, 1st ed (London: Zed Books Ltd, 1997) at 171. 315 Rist,Supra note (314) at 179. 316 J. Donnelly,The Jurisprudenceand Politicsof the rightto development (1985) 15 J. IHRts 473 at 480 accessed on 24th.04.2014. 317 Donnelly,Supra note (316) at 482. 318 Donnelly,Supra note (316) at 485. 319 Donnelly,Supra note (316) at 486. 320 P. Linebaugh, The Magna Carta Manifesto: Liberties and Commons for All, Ed (Los Angeles, California:University of CaliforniaPress,2008) 170. 321M. Grossman,History of Advocating for Human Rights, ed (New York: Brill Books & Journals press,2007) at170. 322 Linebaugh, Supra note (320) at 178.
42. 42. 34 times.323 The example given is found in Asia, Africa and many others parts where the right to life was the most recognized right and it was absolutely attributed to the king who could authorize any deprivation of this right.324 Human rights are, and have been a topic of controversial in international politics.325 When the Allied nations, the founders of United Nations met to develop a charter for new organization, articles on human rights protections were formulated only with some reluctance.326 More than other policy areas, the issue of human rights protections show the tension between the principles of state sovereignty and supranational governance.327 In particular, the reluctance of the USSR and Great Britain to cede to the United Nations any competence that could violate state sovereignty led to the present wording of human rights articles.328 Shortly after the end of World War II, the Allied powers agreed to form United Nations in 1945, few years after realizing the failure of League of Nations.329 Since then, there has been an international advocacy and concern for civil and political rights to often be termed as the first generation of rights.330 The second generation was the demand for economic, social and cultural rights.331 Contemporarily a third generation of rights has been recognized as increasingly important to reflect the right to peace, development and environmental protection.332 The right to development came as a fundamental human right recognized in the Charter of the United Nations where it undertakes to call upon states to cooperate and promoted this right.333 323 Linebaugh, Supra note (320) at 184. 324P. Alston, Peoples Rights, Ed (Oxford University Press,New York, 2001) at 91. 325 Magaloni & Cayeros, Supra note (273) at 4. 326 Charter of United Nations of 1945 in Preamble. 327 M. Lewis, Reconcilingthe Tension between Human Rights and International PublicOrder(1995) 63 J. Intl Law 585 at 585. 328 S. Bernhard Gareis, Die Vereinten Nationen: Aufagaben Instrumente Und Reformen (Leske + Budrich:Opladen, 2003) at 178. 329 Evening Standard News Paper, Why the League Failed(London, November 11, 1938). accessed on 24th.04.2014. 330C. Tomuschat, Human Rights: Between Idealism and Realism, 2d Ed (New York: Oxford University Press,2008) at 26. 331 Tomuschat, Supra note (330) at 28. 332 Tomuschat, Supra note (330) at 54. 333 Charter of the United Nations of 1945 in its preamble, art 1 & art 55c.
43. 43. 35 The Cold war brought about political climate of mistrust that led to establishment of two separate human rights covenants.334 The civil and individual human liberties promoted by the West and participatory rights by the East.335 The right to development is seen by its advocates as a bridge between these two sets of rights.336 It is a right that through its participatory nature guarantees the enjoyment of individual civil liberties.337 The right to development was not part of the bill of rights as defined in the first year of the United Nations.338 It occurred neither in the Universal declarations of human rights nor in the Covenant of civil and political rights.339 It never appeared in the Covenant on economic, social and cultural rights.340 In 1957, the issue to develop the right to development was promoted in civil rights act.341 This was because of the global political situation that was unwilling to promote the right to development before.342 Politically sketchy as it might be, the debate about the right to development was still moving forward.343 The birth of this idea of development as a human right was first promoted in the Philadelphia Declaration of the International Labor Conference in 1944.344 In 1945, the right to development was embodied in the Charter of the United Nations.345 Later, in 1948 it was adopted in the Universal Declaration of Human Rights.346 334 International Covenants on Civil,Political,Economical and Cultural Rights of 1966 and 1977 in preamble. 335 I. Brigitte Hamm, A Human Rights Approach to Development (2001) 23 HRts Quarterly 1005 at 1031. 336 Tomuschat, Supra note (330) at 25. 337 Tomuschat, Supra note (330) at 55. 338 Charter of United Nations of 1945 in Preamble. 339 Tomuschat, Supra note (330) at 49. 340 A United Nations Priority Universal Declaration of Human Rights accessed on 26th.04.2014. 341 History LearningSite, The 1957 Civil Rights Act accessed on 26th.04.2014. 342International Human Rights,