Human Rights and their Impact on the Rule of Law in Emerging Democracies.docx

8/18/2019 Human Rights and their Impact on the Rule of Law in Emerging Democracies.docx

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ABSTRACT

Human rights arise from the very nature of man as a social animal. This nature alsonecessitates that man live in communities rather than in isolation, thus leading tothe need for rules that regulates the activities that the existence of man entails.

Without rules man would live in chaos. This is because there would be no limit tothe exercise of the individual rights of man. Since civilized existence requires theobservance of rights, it is necessary to have rules put in place to regulate theserights and their observances.

This is where democracy becomes important. emocracy provides a platform onwhich a system of government respectful of human rights can be built. emocracyhas the characteristic, ob!ect and e"ect of securing members against oppressionand depredation at the hands of its institutions. These institutions without the ruleof law have the tendency of exercising arbitrariness in its actions and possiblyinactions. #t is not enough to rely solely on the presence of elections $whether or not

they are freely and fairly conducted% and leaders chosen there from as the onlyo"erings of a democratic government. &"ective democratic system must ma'eprovision for peaceful articulation of demand and resolution of competing claims,thereby promoting a sense of !ustice and social unity. The rule of law must beupheld in a democratic society. Without the rule of law, democracy is renderedcompletely empty and toothless, thus creating a fertile ground for serious humanrights violation. #t is right therefore to assert therefore that the lin'age betweendemocracy, human rights and the rule of law cannot be denied. This assertion isfurther ampli(ed by the euphoria for the democratization of political institutions, themovement towards constitutional democracy by nations of the world and thegrowing disdain for unconstitutional attitudes of any nation.

#n as much as there is universal applaud for democratization of nations, the ambit orscope of practical democracy in emerging democracies di"ers. This is because thestate more often than not see's to shield its own form of governance system withthe cloa' of democracy. The values, principles and normative context of democracyare usually partly or totally distorted

This paper attempts to examine the meaning of human rights in line with therelationship with democracy vis)a)vis the rule of law in emerging democracies with aview of exposing the impact human rights has on the rule of law in emergingdemocracies.

The (rst chapter will introduce the topic while the second will attempt an in)depthexamination of the human rights, constitutional democracy and the rule of law. Thisis important as the precise scope of these concepts must be understood in orderfully appreciate the topic. #n the third chapter focus will be primarily give to humanrights and the rule of law in emerging democracies. While it will not be practicableto study all of the world*s emerging democracies, emphasis will be mainly onemerging democracies in the +frican continent a cursory loo' will also be ta'en on a


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few emerging democracies outside +frica. -hapter four will examine the factors thatare responsible for reducing the e"ectiveness of human rights and theimplementation of the rule of law in emerging democracies. The (fth chapter willattempt to pro"er a solution. The chapter will also conclude the essay.

# hope that this study will provo'e issues and bring about change both of ideas and

practice in a way that will truly entrench the rule of law in emerging democracies.


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-H+/T&0 12&

DEFINITION

Human rights are those inherent privileges or interests recognized and protectedby the power of the land which the international community recognizes as

belonging to all individual by the very fact of their humanity.

They have also beende(ned as entitlements or as urgent interests that belong to all human beings anddeserve protection regardless of status. They are basic moral guarantees thatpeople in all countries and cultures allegedly have simply because they are human.-alling these guarantees 3rights4 suggests that they attach to particular individualswho can invo'e them5 that they are of high priority5 and that compliance with themis mandatory rather than discretionary. They are 6rights and freedoms to which allhumans are entitled without which they cannot function as human beings. +llhuman beings are born free and equal in dignity and rights. They are endowed withreason and conscience and should act towards one another in a spirit of brotherhood. +ccording to /rofessor 7. 1. 7mozuri'e, without right, no society willexist as “the existence of society presupposes the existence of certain basicrights” .89or 1sita &ze, human rights represent demands or claims which individualsor groups ma'e on society, which are either protected by law or are still aspirationsto be attained in the future.: They de(ne and a;rm humanity, exist to ensure thathuman life remains sacred and guarantee that humanity and in!ustice are preventedor redressed.<

The contexts, challenges and prospects for human rights all over the world havecontinued to change considerably in recent years. #t would seem that theconsciousness of the world has aligned with the desire to improve rights. 1ne

important right that appears to have continued to =contaminate* the world is theright to democracy. The world has risen through the era of self determination and

C.H. Orji et al. (eds.)“Juriscope: Know Your Fundamental and Basic Right”,>ol. , st &d./ort Harcourt? @awquest @td. p.1$AAB%.

Article 1,Universal Declaration of Human Rights see www.un.org/en/documents/udhr/index.

8 U. O Umozurike,“Human Rights and Democracy in the 21st Century- The African Challenges” in

M. T. Ladan (ed.)“Law, Human Rights And the Administration of Justice in Nigeria ; - Essays inHonour of Chief Justice M. L. Uwais” Caria? +hmadu Dello 7niversity /ress. p. 36.$AA%

: Ibid at p. 38.

< Uchenna Emelonye, “Nigeria @ 50 - The Rule of Law, Human Rights and Development”, 2igerianDar +ssociation -onference /aper. Eaduna. $2010).

8

http://en.wikipedia.org/wiki/Righthttp://en.wikipedia.org/wiki/Freedom_(political)http://en.wikipedia.org/wiki/Freedom_(political)http://en.wikipedia.org/wiki/Right


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undemocratic self)governance structure to the era of democracy. #n +frica, forinstance, the (rst trend was liberation struggles led by single ) minded nationalists,focused on freeing +frican peoples from the shac'les of colonialism. 9or +fricans,this was a period of great expectations for both national and personal politicalfreedoms.B The democratic model that came with independence showed obviouslac' of strong foundations for open, disciplined and enlightened political discourse

and governance. + number of reasons have been adduced for this.F

The growth of democratically elected governments and governance has beenaccompanied by the expansion of legality as more domains of public life aregoverned by the rule of law established by democratic procedures. This is one of themost appreciated advantages of democracy. emocracy has ta'en many paths toentrench itself in the polity of most countries. While it has developed fully in mostcountries, new democracies seem to grapple with a lot of challenges. emocracy inthese countries appears to have distorting characteristics. Truly one cannotappreciate democracy without having in its content some core values of humanrights. However, this is !ust one of the ma!or challenges nascent democracies have

to deal with. This is especially because there appears to be an alluring force towardsauthoritarianism by any government that conGicts with the principles of democracy.

The positive correlation between democracy and respect for human rights is basedon the assumption that democratic leaders are more accountable to their citizensand that coercive agents within democratic states not only wield less power thanother competitive groups, but the availability of less coercive means of conGictregulation $such as elections% provides both a constraining factor and a preferableoption. Respect for human rights and democracy are among the pillars on which our modern societies stand. In the case of human rights they are used as indicators of

the peace, security, tolerance, and freedom in a country, and are thus also the prerequisites for the eective sustainable development of a society.

1.1 INTERNATIONAL CONCERNS FOR HUMAN RIGHTS

#nternational concern for human rights was demonstrated for (rst time in modernhistory at the -ongress of >ienna held by states that defeated 2apoleon in


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sovereign states. The atrocities committed during the 9irst and Second World warsfurther raised international concern for human rights. With the establishment of the7nited 2ations in I:


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-ovenant on -ivil and /olitical 0ights guarantees a person*s right to be involved inpolitical issues such as?

• The right to ta'e part in the conduct of public a"airs5• The right to vote and be voted for5• The right to assess general in terms of equality the public services of one*s

country5• The right to individual or equal decision during elections5 and• The right to equality before the law and equal protection of the law.

Since then numerous other treaties $pieces of legislation% have been o"ered at theinternational and regional level. They are generally 'nown as human rightsinstruments. Till date, in the world over, over eighty treaties have been rati(ed.

These instruments see' to protect the rights of all from various angles. 9or example,to prevent torture, 7nited 2ations -onvention against Torture $-+T% was adoptedI: and it entered into force the same year. Dy ratifying the 7niversal eclarationand other instruments, nation states commit themselves to its provisions that must

then be reGected in the law and practice of the nation.8

While these #nstrumental e"orts of the 7nited 2ations may be ad!udged very fragileand incomplete, they provide a ground to put the domestic conduct of thegovernments under international scrutiny. #n addition, the proliferation of theseinternational $and regional% instruments can be seen as an indication of the growingawareness protect all rights whether existing or evolving as the categories of rightsseem not closed.

The importance placed on human rights by the international community has led to

the establishment of the #nternational -riminal -ourt by the 7nited 2ations Jeneral+ssembly to try violators of rights in situations of conGict. >iolations of human rightshappen when one person or group of persons see' to have power and control overan individual or another group of people. #n other words, when any state or non)state actor breaches any part of the 7H0, treaty or other international humanrights or humanitarian law instruments, violation occurs. They fail to accord respectto their fellow citizens. The Security -ouncil has also established several ad hocbodies to address perpetrations of human rights violations. The 7nited 2ations hasin addition established the Human 0ights -ouncil which has been placed on thesame pedestal with the 72 Security -ouncil. These councils are considered below.

#nternational concern of human rights also extends to exerting various 'inds of inGuence on any government that engages in human rights violations with the aim

Ibid. pp. 8-13.

8 Jan Ristarp,“Libraries and the Intellectual Freedom,” A keynote paper at the conference“Literature to Politics – Politics to Libraries, Copenhagen, 19-11 November, 2000.

B

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of ma'ing such nation change its attitude towards its own citizens. This inGuencecould be friendly or political or even economic and in some cases, military. #nextreme cases, confronting brutal dictators, diplomatic, political and economicleverages seem to be ine"ective at stopping massive violations of human rights.

Thus, the concern that there should be moral limits tends to lead to a quest for anexception to the non)intervention principle that guides international relations.

#ntervention is commonly de(ned as 6dictatorial or coercive interference by anoutside party or parties, in the sphere of !urisdiction of a sovereign state6 :9rom aninternational law perspective5 it can be furthermore argued that the non)intervention principle is not an absolute norm in the contemporary internationalnormative system. The 72 -harteriolations of human rights principles and values such as the right todemocracy are not considered to be one in which is restricted to domestic

!urisdiction.

1n a general scale, it seems to be that since the Second World War, internationalunderta'ings have transformed the human rights issue from domestic !urisdiction tointernational !urisdiction. The manner in which any government treats its owncitizens is now a matter of legitimate international concern and not simply adomestic issue. Human rights being a matter of international law emphasize thatrights do not depend on an individual*s nationality. So, its protection cannot belimited to the !urisdiction of any particular state.B Therefore, any concern overhuman rights cannot be refuted as unwarranted intervention. Within theinternational normative order, one can argue that human rights now constitute the

basis on which the international legitimacy of a state is determined. To lin'international legitimacy to respect of the state for human rights is to lin' it todomestic legitimacy. That means that international legitimacy is derived fromdomestic legitimacy and thus, states do not have an autonomous moral standingdivorced from their domestic political institutions and processes, respected by theinternational community.F #t is widely recognized that the issues of human rightsand democratization have found their way into international politics, and become of

: H. Bull,'Introduction' in H. Bull (ed.), Intervention in World Politics, Oxford, Clarendon Press,(1984), p. 1.


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international concern, a process which has been provided with added impetus in thepost)-old War era. #t is now generally accepted that human rights assume priorityover national sovereignty. -onsequently, States have been compelled to acceptinternational scrutiny of their human rights credentials.I

+mong this wide array of international and regional instruments, the promotion of

democracy and human rights through foreign policy)ma'ing is particularly importantand believed to be an important avenue in the absence of more e"ectivemechanisms to enforce the existing international standards. uring the AA -yril9oster @ecture, the erstwhile 7nited 2ations Secretary)Jeneral, Eo( +nnan emphasizedinternational concern in ensuring that democracy is practised by all nation states.A Hestated that while the ma!or concern of the international community in today*s worldis the restoration of domestic peace, in societies where it has bro'en down, itcannot be achieved without democratic governance and the realization of humanrights. #t has also been observed that democracy builds up human relations witheach other and thus, a"ects their internal harmony and development.

#t must be noted that over the last decade and more, the 7nited 2ations has had tocope with conGicts in which one groupKs fear of another was cultivated and exploitedby political leaders for their own sel(sh ends. + proper appreciation of the tenetsof democracy will go a long way to correct these anomalies. Hence, lots of e"ortsare made to encourage states to observe international human treaties andtransform these into their national legislation. These standards provide thenormative basis for the strengthening of democracy.

#t should be noted that regarding international human rights standards, states havean obligation to protect their populations from the worst atrocities on the basis of

international human rights precepts. +lso, the inclusion of human rights anddemocratization concerns in external relations creates political, legal, and moralcommitments and dependencies on both sides. Whether one li'es it or not, theinternational actors trying to inGuence the behaviour of target governments areincreasingly pulling deep into domestic politics and becoming one of the actors. 1nthe one hand, this lin'age puts limitations on the policies of international actors vis)L)vis the target country? a more KresponsiveK and KaccountableK policy, equipped with

David Forsythe,“Human Rights in International Relations,”Cambridge: Cambridge UniversityPress, pp. 4-7. (2000).

I D. Evans and Rachel Murray, (eds.)“The African Charter on Human and Peoples’ Rights: TheSystem in Practice 1986- 2000.” Cambridge University Press. p.2.(2002).

AKofi Annan,"Why Democracy Is an International Issue" Oxford (UK) Cyril Foster Lecture (2001).

Ibid.


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the right language, the suitable discourse and the relevant instruments is expectedfrom such actor. 1n the other hand, domestic politics in the target country becomedependent on the attitudes of outside actors and render the internal balancesfragile.

The (rst)ever &merging emocracies 9orum which too' place in Muly, III in Nemen

brought together political, civic and economic leaders from transitional democracieswhich eventually produced the Sana*a eclaration. The eclaration rea;rmeddeveloping countries* commitments to democracy and good governance, and urgedthe international community to renew its commitment to countries wor'ing to builddemocratic institutions and processes and dedicate resources for this tas'.

#n +pril AAA, the Jroup of FF8 held the South Summit in Havana, -uba. +t theevent, the Jroup declared its commitment to 6a global system based on the rule of law, democracy in decision)ma'ing and full respect for the principles of internationallaw and the -harter of the 7nited 2ations.6

#n a Oinisterial -onference on 6+ -ommunity of emocracies6 and a non)Jovernmental conference on 6World 9orum on emocracy6 which too' place inWarsaw, /oland in Mune, AAA, these two events rea;rmed developing anddeveloped countries* commitment to common democratic values and standards.

These include the belief that 6the will of the people shall be the basis of theauthority of Jovernment, as expressed by exercise of the right and civic duties of citizens to choose their representatives through regular, free and fair elections withuniversal and equal su"rage, open to multiple parties, conducted by secret ballot,monitored by independent electoral authorities, and free of fraud and intimidation.6

#nternational concern with human rights is here to stay. This can be seen from theweight of international institutions, the political inGuence of the most powerfulStates and the superior mode of legitimating power.

.. Unite Nati!ns Se"urit# C!un"i$

The 7nited 2ations Security -ouncil has primary responsibility for maintaininginternational peace and security and is the only body of the 72 that can authorizethe use of force $including in the context of peace)'eeping operations%, or override

member nations sovereignty by issuing binding Security -ouncil resolutions. #t iscreated by the 72 -harter. The 72 -harter gives the Security -ouncil the power to?

Freedom House Press Release. See www.freedomhouse.org.

8 The largest coalition of developing countries within the United Nations.

I

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• #nvestigate any situation threatening international peace5

• 0ecommend procedures for peaceful resolution of a dispute5

• -all upon other member nations to completely or partially interrupt economicrelations as well as sea, air, postal, and radio communications, or to sever

diplomatic relations5 and

• &nforce its decisions militarily if necessary.

The Security -ouncil hears reports from all organs of the 7nited 2ations, and canta'e action over any issue which it feels threatens peace and security, includinghuman rights issues. The body has been faced with criticism for failing to ta'eaction to prevent human rights abuses, including the arfur crisis, the Srebrenicamassacre and the 0wandan Jenocide.

The 0ome Statute of the #nternational -riminal -ourt recognizes the Security-ouncil as having the power to refer cases to the -ourt, where the -ourt could nototherwise exercise !urisdiction.

The -ouncil has constantly a;rmed its commitment at ensuring that the worldpeace is attainable. 1n +pril , AAB, the Security -ouncil adopted resolution BF:that 60ea;rmed the provisions of paragraphs 8 and 8I of the AA< WorldSummit 1utcome ocument regarding the responsibility to protect populations fromgenocide, war crimes, ethnic cleansing and crimes against humanity6 andcommitted the Security -ouncil to action to protect civilians in armed conGict. :

These are !ust a few of the several ways the council underta'es to ensure that rights

are protected by states. The presence or entrenchment of the rule of law in anysociety will also guarantee the protection of these rights.

Defore II, the focus of the Security -ouncil had mainly concerned situations of military violence5 however focus has now moved to include security of persons.

Thus, the -ouncil has continued to ta'e part in 3peace'eeping operations4 under-hapter ># and has also to establish liberal democratic peace, based on civil andpolitical rights. -oncern is on essentially national rather than international issuesand answers the questions, 3Who governsP4 and 3How humanelyP4

1.1.%. The Unite Nati!ns Human Rights C!un"i$

: Security Council passed the landmark resolution,“World Has Responsibility to Protect People from Genocide” Oxfam Press Release (2006).

A

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The 7nited 2ations Human Rights C!un"i$ was created in Oarch


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• to promote the full implementation by 72 member states of their humanrights obligations and commitments5

• to underta'e a universal periodic review of every 72 member stateKsful(llment of its human rights obligations and commitments5 and

• To contribute, through dialogue and cooperation, toward the prevention of human rights violations and respond promptly to human rights emergencies.

The 0esolution also requires that the -ouncilKs wor' 6shall be guided by theprinciples of universality, impartiality, ob!ectivity and non)selectivity, constructiveinternational dialogue and cooperation with a view to enhance the promotion andprotection of all human rights. independent experts $rapporteurs% are retained bythe -ouncil to investigate alleged human rights abuses and to provide the -ouncilwith reports.

The Human 0ights -ouncil may request that the Security -ouncil ta'e action whenhuman rights violations occur. This action may be direct actions, may involvesanctions, and the Security -ouncil may also refer cases to the #nternational-riminal -ourt $#--% even if the issue being referred is outside the normal

!urisdiction of the #--.I

1.% DE&ELO'MENT OF HUMAN RIGHTS 'RINCI'LES

Human rights principles provide a vision of a !ust and peaceful world. Human rights

principles are the underlying factor of every one of its instruments.-haracterizations of human rights prescribe respect for them in practice, ratherthan merely as aspirational statements.8A9oremost statements of principle of Human0ights as contained in the I: 7nited 2ations !niversal "eclaration of #umanRights $7H0% identi(es human rights as being held by all people equally,universally, and forever. Those rights are interdependent, inalienable and indivisible.interdependence, for example, means that an individualKs right to free expressionand to participation in government is directly a"ected by rights to the physicalnecessities of life, to education, to free association and non)interference by police orother agencies. #nalienability means that those rights are innate? a person cannot

I The Security Council referred the human rights situation inDarfur in Sudan to the ICC despite thefact that Sudan has a functioning legal system.

8A This is in spite of the fact that the Universal Declaration of Human Rights is a Declaration. The followup Covenants - The International Covenant on Civil and Political Rights and its two optional protocols and

the International Covenant on Economic Social and Cultural Rights - seem to emphasize this.

http://en.wikipedia.org/wiki/International_sanctionshttp://en.wikipedia.org/wiki/United_Nations_Security_Councilhttp://en.wikipedia.org/wiki/International_Criminal_Courthttp://en.wikipedia.org/wiki/International_Criminal_Courthttp://en.wikipedia.org/wiki/Darfurhttp://en.wikipedia.org/wiki/Sudanhttp://en.wikipedia.org/wiki/Sudanhttp://en.wikipedia.org/wiki/Sudanhttp://en.wikipedia.org/wiki/International_sanctionshttp://en.wikipedia.org/wiki/United_Nations_Security_Councilhttp://en.wikipedia.org/wiki/International_Criminal_Courthttp://en.wikipedia.org/wiki/International_Criminal_Courthttp://en.wikipedia.org/wiki/Darfurhttp://en.wikipedia.org/wiki/Sudan


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lose those rights and cannot be denied a right because it is 6less important6 or6non)essential.6 Oore principles have been developed to add to these three.

The 7nited 2ations framewor' for democracy is based on universal principles,norms and standards. #t emphasizes the internationally agreed normative content,drawing on lessons learned from experience5 it outlines the areas of support in

which the 72 has comparative advantage. #t, thus, commits the 1rganization toprincipled, coherent and consistent action in support of democracy. The inGuence of the 7H0 has been quite substantial. #ts principles have been incorporated into theconstitutions of most of the more than < nations now in the 72. Human rightsprinciples are upheld by the rule of law and strengthened through legitimate claimsfor duty)bearers to be accountable to international standards.

+s statements of principle, nationalQinternational human rights codes assume thatthere will be support for those whose rights are abused or denied, a support thatfrequently leads to conGicts between governments. +s can be rightly expressed,human rights are formulated to promote tolerance, solidarity, peace, and humandignity. +ll human rights approach must see' to ful(l the attainment of humanrights ob!ectives.

+n overview of basic human rights principles is considered below.

1.%.1. Uni(ersa$it#

The principle of universality of human rights is the cornerstone of internationalhuman rights law. This principle, (rst emphasized in the 7niversal eclaration on

Human 0ights in I:,8 has been reiterated in numerous international humanrights conventions, declarations, and resolutions. The II8 >ienna World-onference on Human 0ights, for example, noted that it is the duty of States topromote and protect all human rights and fundamental freedoms, regardless of theirpolitical, economic and cultural system.

Human rights are the birthright of every single individual. They are the same foreveryone, everywhere. 2o one is exempted, neither man, nor woman, nor child. 9orcritics, the full implications of the universality of human rights appears not to besu;ciently recognized as such recognition would entail a rethin'ing and revising of

a fundamental principle of international relations, i.e., non)interference in theinternal a"airs of a state. The application of this principle in the (eld of humanrights is the most formidable obstacle to the creation of e"ective implementationmachinery. #t will require a ma!or e"ort of international re)education to extricatehuman rights from the grip of the principle of non)interference in internal a"airs.8

8 Article 1 states that “All human beings are born free and equal in dignity and rights.”

8


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+ll States have rati(ed at least one, and AR of States have rati(ed four or more, of the core human rights treaties, reGecting consent of States which creates legalobligations for them and giving concrete expression to universality. Somefundamental human rights norms en!oy universal protection by customaryinternational law across all boundaries and civilizations. These numerousinstruments expressly or by implication a;rm the universality of human rights.

0espect for this principle must, therefore be upheld at all times except where it isabsolutely necessary to curtail these rights5 such as for safety of persons.

The universality of human rights a"ords international protection of these rights. Theidea behind this conception would suggest that it does not accept derogations onthe basis of culture. -ultural relativism would suggest that any international systemof protecting human rights would be inappropriate. 88+t the II8 Dang'o' 2J1-onference on Human 0ights, it was declared that 3universal human rightsstandards are rooted in every culture4. The -ouncil of &urope also noted in IIthat human rights, by de(nition, are universal only because they belong to all being

irrespective of where they live or the culture to which they belong.

8:

While legal protection of human rights at the international level is clearly promotedby the western developed states, it does not mean that the concept of human rightsis solely a western concept. 7niversalists, however, ac'nowledge that there areexceptions to the general rule, e.g., the voting age may di"er from country tocountry.

1.%.% Ini(isi)i$it#

+ll human rights are indivisible, whether they are civil and political rights or socio)economic. The temptation to oppose civil and political rights, on the one hand, toeconomic, social and cultural rights, on the other, must be resisted. Doth categoriesare needed. 1ften, these rights complement one another. When those deprived of their socio)economic rights cannot ma'e their voices heard, they are even less li'elyto have their needs met. #f a person is deprived of one right, his chance of securingthe other rights is usually endangered. The right to education and the right of freedom of information and open debate on o;cial policies is necessary to securefull public participation in the process of social and economic development. The

8 Tore Frängsmyr, & Irwin Abrams,(eds.),“Nobel Lectures: Peace 1971-1980,” World ScientificPublishing Co., Singapore (1997).

88 Ladan,op. cit.p.48.

8: A. Ibidapo- Obe,“A Synthesis of African Law”Lagos: Concept Publications Ltd, p.260 (2006).

:

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freedom of the human mind and the welfare of the human being are inextricablylin'ed. Simply put, there is no hierarchy among rights, and no right can besuppressed in order to promote another right. The +frican -harter on Human and/eople*s 0ights a;rms in its preamble that civil and political rights cannot bedisassociated from economic, social and cultural rights in their conception and thatthe satisfaction of economic and cultural rights is a guarantee for the en!oyment of

civil and political rights.

The frequent use of emergency regulations, preventive detention, and draconianlaw needs to be considered in the light of the indivisibility of human rights ratherthan in the context of so)called conGicting rights and liberties, or economicdevelopment versus political freedom. #t is often overloo'ed that human dignity andthe free mind presuppose a whole networ' of interconnected rights which equallyrequire protection, and the violation of any one of these, by implication, truncatesthe whole. +ttempts are made to !ustify curtailments of human rights on the groundthat a larger national interest is at sta'e. These are often the (rst step in adeliberate reduction of the whole networ' of human rights, when these areperceived as a threat to established interests.

1.%*+ Ina$iena)i$it#

Human rights are inalienable. They should not be ta'en away, given up,surrendered, or transferred, except in speci(c situations and according to dueprocess. 9or example, the right to liberty may be restricted if a person is foundguilty of a crime by a court of law. -onsequently, it is imperative to safeguardhuman rights against violations, abuse, or neglect. This principle also underlies therights proclaimed by the 7niversal eclaration on Human 0ights $7H0% whichstarts by recognising the “inherent dignity, and the equal and inalienable rights of

all members of the human family” . The inalienability of human rights was alsoemphasised in the IB Tehran #nternational -onference on Human 0ights. 8


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2on)discrimination is a cross)cutting principle in international human rights law. Theprinciple is present in all the ma!or human rights treaties and provides the centraltheme of some of international human rights conventions such as the #nternational-onvention on the &limination of +ll 9orms of 0acial iscrimination and the-onvention on the &limination of +ll 9orms of iscrimination against Women.

The principle applies to everyone in relation to all human rights and freedoms and itprohibits discrimination on the basis of a list of non)exhaustive categories such assex, race, colour, age and so on. These attributes are those, over which a personhas no choice or attributes that, if denied, would result in the infringement of otherhuman rights $such as religion and political ideology%. The principle of non)discrimination is complemented by the principle of equality, as stated in +rticle of the 7niversal eclaration of Human 0ights? 3+ll human beings are born free andequal in dignity and rights.4

1.%.0 Right an O)$igati!n

Human rights entail both rights and obligations. States generally owe human rightsto individuals. States assume obligations and duties under international law torespect, to protect and to ful(ll human rights. The obligation to respect means thatStates must refrain from interfering with or curtailing the en!oyment of humanrights. 9or instance, states should refrain from carrying out forced evictions and notarbitrarily restrict the right to vote or the freedom of association. The obligation toprotect requires States to protect individuals and groups against human rightsabuses. Thus, States are required to enact laws that create mechanisms to preventviolation of the right by state authorities or by non)state actors. The obligation to

ful(ll means that States must ta'e positive action to facilitate the en!oyment of basic human rights. This includes ta'ing active steps to put in place institutions andprocedures, including the allocation of resources to enable people to en!oy the right.

This obligation is sometimes subdivided into obligations to facilitate and to providefor realization. The former refers to the obligation of the state to engage proactivelyin activities that would strengthen people*s ability to meet their own needs forinstance, creating conditions in which the mar'et can supply the healthcare servicesthat they demand. The obligation to provide goes one step further, involving directprovision of services if the right concerned cannot be realized otherwise, forexample, to compensate for mar'et failure or to help groups that are unable toprovide for themselves.8B +t the individual level, while we are entitled our humanrights, we should also respect the human rights of others.

8B United Nations Development Programme & HURITALK,“Human Rights and the MillenniumDevelopment Goals: Making the Link” 1slo? 1slo Jovernance -entre and 7nited 2ationalevelopment /rogramme (Oslo, Norway), p.9. See also:[email protected],

www.undp.org/oslocentre

B

mailto:[email protected]:[email protected]


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#t is not for governments to select, as suits their own goals, which rights they willrespect, protest or ful(ll. 1n the contrary, rights constitute the standard by whichgovernments are to be !udged. #t is for the purpose of securing rights thatgovernments are instituted5 and although governments long established should notbe changed for light and transient causes, any form of government that isdestructive rather than protective of universal rights may be altered or abolished.

#ndeed, it is not merely their right, it is their duty, to throw o" such governments.

This concept is clearly lin'ed to the States* traditional monopoly on the use of legitimate force to maintain law and order in a democratic society. -onsequently,only state agents, and sometimes individuals acting on the instigation of or with theconsent or acquiescence of a public o;cial, are said to violate human rights. 1n theother hand, violent acts committed by private individuals would normally beclassi(ed as a common crime and would, therefore, fall under the -riminal -ode of any particular country.

1.2.7 Participatory

+ll people have the right to participate in and access information relating to thedecision)ma'ing processes that a"ect their lives and well)being. 0ights)basedapproaches require a high degree of participation by communities, civil society,minorities, women, young people, indigenous peoples and other identi(ed groups.

1.2. !ccounta"i#ity an$ %u#e of Law

States and other duty)bearers are answerable for the observance of human rights.#n this regard, they have to comply with the legal norms and standards enshrined ininternational human rights instruments. Where they fail to do so, aggrieved rights)holders are entitled to institute proceedings for appropriate redress before acompetent court or other ad!udicator in accordance with the rules and proceduresprovided by law. #ndividuals, the media, civil society and the internationalcommunity play important roles in holding governments accountable for theirobligation to uphold human rights. The creation of the #nternational -riminal -ourt

as a permanent court to try human rights violations and atrocities has beencommended.

F


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-H+/T&0 TW1

HUMAN RIGHTS CONSTITUTIONAL DEMOCRAC2 AND THE RULE OF LA3


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emocracy has become a popular concept in every contemporary discourse.8F #t isno longer seen in simplistic terms as merely a government of the people by thepeople for the people. #t is seen as a beacon of light and the harbinger of the goodsthings of life. The word which is originally 'nown to have been coined from twoJree' words? demos $the people% and Eratos $rule% which simply means people*srule. However, experience has shown that, having gone through the process of the

election of representatives to the seat of government, governments have gone onto administer the a"airs of state as if democracy had given way to autocracy. Whileit is now accepted that they may be 3variants4 of democracy, it remainsunacceptable that core elements of democracy be !ettisoned as attempt to do sohas the tendency to gradually slide a country into autocratic governance. #tsimportance to democracy is that the citizenry be able to learn whether thegovernment is doing its !ob properly and acting in the best interests of the people.

+ccording to 0osenfeld, constitutionalism is 3a three)faceted concept4, as it requiresimposing limits on governmental powers, adherence to the rule of law, and theprotection of human rights.8 Oodern constitutionalism is democratic

constitutionalism and modern democracy is a constitutional one. #t is easy to as'?-an there be democracy without the rule of lawP -an those countries where the ruleof law appears to be very wea' really be called democraciesP

Human rights, constitution entrenched democracies and the rule of law are coreelements that cannot be set aside in any democratic government. emocracy doesnot hang in space. To truly practice democracy, we must appreciate the norms,values and principles of these elements. The extent to which these values areappreciated determines the extent to which democracy can be claimed.

%.1 CONSTITUTIONAL DEMOCRAC24 DEMOCRATIC GO&ERNANCE

+ constitutional democracy is a veritable principle of power relationship in a rule)ordered society in which case the governed and the government ali'e derive theirrights, power and privileges from the constitution. #t embodies a way of life, itsdistinctive features constituting its claim to moral superiority over other forms of Jovernment5 and the fundamental values on which it is grounded, and which itembodies, have in common a devotion to the idea that the individual is the moralcentre of the society. #t is government by ma!ority rule with protection of minorityrights. #t is democratic because of its foundations of popular consent and ma!ority

rule. #t is constitutional because the power of the ma!ority to rule is limited by a

8F A.A. Idowu,“Human Rights, Democracy and Development: The Nigerian Experience” 8 Research Journal of International StudiesSeychellesp.30. (2008)

8 M.Rosenfeld, (ed.)Constitutionalism, Identity, Difference, and Legitimacy. Theoretical Perspectives, Durham & London: Duke University Press, pp. 27-28. (2004).

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supreme law. + constitutional democracy allows coalition and ma!ority rule and isbalanced by minority and individual rights, and most rights are balanced byresponsibilities. #t is also 'nown as liberal democracy.8I #t en!oys the mandate fromthe people, accomplished through free and fair elections, and that guaranteesindividual freedoms, such as religion, assembly, and speech and the right to liveoneKs own life without excessive government regulation. + liberal democracy may

ta'e various constitutional forms? it may be a federal republic, as the 7nited States,Drazil, #ndia or Jermany, or a constitutional monarchy, such as the 7nited Eingdom,

Mapan, or Spain. #t may have a presidential system $7nited States, Drazil%, aparliamentary system $Westminster system, 7E and -ommonwealth countries%, or ahybrid, semi)presidential system $9rance%. Simply put, a constitutional democracy isa government based on the consent of the people.

-onstitutional democracies are guided by a constitution. + constitution is afundamental system of law of a sovereign state, established or accepted as a guidefor governing the state. + constitution (xes the limits and de(nes the relations of

the legislative, !udicial, and executive powers of the state, thus setting up the basisfor government. #t also provides guarantees of certain rights to the people. #t couldbe written $as obtainable in most democracies% or unwritten $as in the 7nitedEingdom%. The democratic constitution de(nes the democratic character of thestate. #t must represent the will of the people, and should, therefore, have beenarrived at through consensus. -onstitutional democracy is the practice of puttingdemocratic governance within constitutional framewor' for the purpose of preserving their sacrosanctity.

+ constitution is often seen as a means of setting limit on the authority of the

government. The common !usti(cation for these limits is that they are necessary toguarantee the existence of democracy, or the existence of the freedomsthemselves. #n practice, democracies cannot exist without these speci(c limits onspeci(c freedoms. 9or example, allowing free speech for those advocating massmurder undermines the right to life and security. +s Eateb aptly frames it,3restriction or limitation on the power of Jovernment is the soul of -onstitutionalemocracy4.:A #t is more correct to say that constitutional democracy cannot ta'eroot in any society, without a (rm and profound commitment on the part of thepolitical elites to protect the fundamental rights of all.:

emocracy is not an event. #t is a process, which constitutes the creation and

maintenance of operational institutions and an appropriate political culture. That

8I Samuel J. Levine & Russell G. Pearce, “Rethinking The Legal Reform Agenda: Will Raising TheStandards For Bar Admission Promote Or Undermine Democracy, Human Rights, And Rule Of

Law?”77 Fordham Law Review.2ew Nor'? 9ordham 7niversity School of @aw p.1636 (2009)

:A See www.anguillaguide.com/article/archive/125

A

http://www.answers.com/topic/federal-republichttp://www.answers.com/topic/united-stateshttp://www.answers.com/topic/brazilhttp://www.answers.com/topic/indiahttp://www.answers.com/topic/germanyhttp://www.answers.com/topic/constitutional-monarchyhttp://www.answers.com/topic/united-kingdomhttp://www.answers.com/topic/japanhttp://www.answers.com/topic/spainhttp://www.answers.com/topic/presidential-systemhttp://www.answers.com/topic/parliamentary-systemhttp://www.answers.com/topic/westminster-systemhttp://www.answers.com/topic/commonwealthhttp://www.answers.com/topic/semi-presidential-systemhttp://www.answers.com/topic/constitution-politicalhttp://www.answers.com/topic/federal-republichttp://www.answers.com/topic/united-stateshttp://www.answers.com/topic/brazilhttp://www.answers.com/topic/indiahttp://www.answers.com/topic/germanyhttp://www.answers.com/topic/constitutional-monarchyhttp://www.answers.com/topic/united-kingdomhttp://www.answers.com/topic/japanhttp://www.answers.com/topic/spainhttp://www.answers.com/topic/presidential-systemhttp://www.answers.com/topic/parliamentary-systemhttp://www.answers.com/topic/westminster-systemhttp://www.answers.com/topic/commonwealthhttp://www.answers.com/topic/semi-presidential-systemhttp://www.answers.com/topic/constitution-political


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culture is nurtured through institutions that embody enhanced opportunities forpolitical participation and competition for all citizens.: #t even gives opportunitiesfor non)governmental actors to pressure the Jovernment. emocracy has also beendescribed as the societal institution of government under which a homogeneouspeople were governed by an electoral process which was open and fair. #t waswrapped in the catch phrase, 3Jovernment of the people, by the people and for the

people4.

1ne of the cornerstones of democracy is that the people must be fully conversantwith rights and responsibilities. 9or a start, the state must be very willing toconscientize the people on what these rights and duties are and put in place certaininstitutions to monitor its implementation. #ndian economist and 2obel /rizelaureate, +martya Sen, spo'e about the two perspectives of democracy. 1ne waswhat he called the 3public ballot perspective of democracy4. That*s reasonably self)explanatory? the ability to hold public elections and to ensure citizens are able to

elect the leaders of their choice. The second perspective of democracy is what hecalled the 3public reasoning perspective of democracy4. Dy that he meant theability of governments to respond to public reasoning,:8

The importance of democracy and democratic values was (rst highlighted in the-harter of the 7nited 2ations, as well as in the 7niversal eclaration of Human0ights. +rticle of the 7niversal eclaration states?

$%& 'veryone has the right to ta(e part in the government of his

country, directly or through freely chosen representatives.

$)& 'veryone has the right to equal access to public service in his

country.$*& +he will of the people shall be the basis of the authority of

government this shall be expressed in periodic and genuine elections

which shall be by universal and equal surage and shall be held by

secret vote or by equivalent free voting procedure.”

: Anwar Ibrahim,“Universal Values and Muslim Democracy”17 Journal of Democracy pp.8-9.(2006)

: Amina A. Augie,“Human Rights and Good Governance in Africa: A Critical Nexus ExpandingHuman Rights” Presented at the Fourth African Development Forum (ADF-IV) on the theme

“Government for a Progressive Africa” (Addis –Ababa 2004).

:8 South African Human Rights Commission“Human Rights Lecture and Roundtable Discussion onDignity And Justice For All Of Us: 60th Anniversary of the Universal Declaration of Human

Rights” pp.5-6. (Johannesburg, 2007)


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The #nternational -ovenant on -ivil and /olitical 0ights $#--/0% also contains, interalia, binding obligations on States /arties in respect of elections, freedom of expression and association and assembly and other vital democratic entitlements.

Since then, democracy has become a theme of a number of international andregional conferences. The rights enshrined in the #nternational -ovenant on

&conomic, Social and -ultural 0ights and subsequent human rights instrumentscovering group rights $e.g., indigenous peoples, minorities, people with disabilities%are equally essential for democracy as they ensure an equitable distribution of wealth, and equality and equity in respect of access to civil and political rights. #n

Manuary, AAF, The +frican -harter on emocracy, &lections and Jovernance$+-&J% was adopted by the th 1rdinary Session of the +frican 7nion $+7%+ssembly, held in +ddis +baba. 1n 2ovember AAF, the Jeneral +ssemblyproclaimed < September as the #nternational ay of emocracy. :: #t was developedas part of the +frican 7nion*s stated emphasis on promoting democracy and goodgovernance in member states.:


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to any country or region, and rearm the necessity of due respect for

sovereignty and the right of self/determination. -e stress that

democracy, development and respect for all human rights and

fundamental freedoms are interdependent and mutually reinforcing. “ 01

This recognition of diversity within the unity of democratic values is also reGected in

the Terms of 0eference of the 72 emocracy 9und.

emocracy may mean many things to many people, but at bottom it rests on twofundamental ideals ) the ideal of liberty and the ideal of equality freedom andequality. This means that democracy must, nevertheless, contain the seeds that willma'e it recognizable.There are certain minimums which a system of governancemust meet before being called a democracy and below which if it drops, it ceases tobe a democracy. These =minimum standards* determine whether a democracy isgenuine or bogus.

-ompulsorily, as earlier discussed, any democracy must be guided by aconstitution. #t is from this that constitutional democracy derives its root. Without aconstitution, any governance system cannot be democratic. #t is imperative thatconstitution has humane provisions with the intention of ma'ing it more amenableto the needs of the people.

emocracy must be connected with good governance. Jovernance is the exerciseof political authority and the use of institutional resources to manage society*sproblems and a"airs. #t is a broad concept, encompassing the capacity of the state,the commitment to the public good, the rule of law, the degree of transparency andaccountability, the level of popular participation, and the stoc' of social capital. #t is

the structure of institutions set in place in an arrangement agreed by thecommunity for the regulation of society*s social stability, for the advancement of the individual human self)ful(llment, and for the realization of the people*s civil,political, social and economic aspirations. #t is the agreement of the people, whichgives the structure of democratic governance its validity. Jovernance could be local,national or international. 9or the purpose of this study, focus shall be on local andnational governance. @ocal governance refers to the institutions, inGuences, andprocesses that lead to the authoritative resolution of public decisions at the tier of government closest to the people while national governance is the institution,inGuences and processes that lead to the authoritative resolution of public decision

at the national level. #t lin's the local level. @ocal governance, more often than not,tends to be a fall out of what is obtainable at the national level.:

:F Paragraph 135.

: Timothy D. Sisk, “Global Networks For Democracy Promotion: Enhancing Local Governance”Case Study for the UN Vision Project on Global Public Policy Networks See www.du.edu/~tsisk p.15.

8

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.. BASIC ELEMENTS OF DEMOCRAC2 +t the 7niversal eclaration on emocracy held in -airo on the Bth September,IIF, it was declared that democracy must encompass the following features?)

• emocracy is a universally recognized ideal as well as a goal, which is based

on common values shared by peoples throughout the world communityirrespective of cultural, political, social and economic di"erences. #t is a basicright of citizenship to be exercised under conditions of freedom, equality,transparency and responsibility with due regard for the plurality of views, andin the interest of the polity.

• +s an ideal democracy aims to preserve and promote the dignity andfundamental rights of the individual, to achieve social !ustice, foster theeconomic and social development of the community, strengthen the cohesionof society and enhance national tranquility, as well as to create a climate that

is favourable for international peace. +s a form of government, democracy isthe best way of achieving these ob!ectives5 it is also the only political systemthat has the capacity for self)correction.

• emocracy is inseparable from the rights set forth in the internationalinstruments. These rights must, therefore, be applied e"ectively and theirproper exercise must be matched with individual and collectiveresponsibilities.

• emocracy is founded on the primacy of the law and the exercise of humanrights. #n a democratic State, no one is above the law, and all are equalbefore the law.


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promote and defend human rights. This is especially as modern democracyenvisages a new notion conceived in liberty and dedicated to the proposition that allmen are created equal. The hallmar's of any democracy would be measured by theextent to which not only governments but also all other sta'eholders ensure thathuman rights and laws are respected and upheld. There must also be an index of good governance and development. +ll the qualities obviously place the citizens,

who constitute the human resources of the nation in a pedestal to love their nationand struggle to contribute to its socio)economic, cultural and politicaldevelopment.


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without as'ing for the consent of the people again in an election. >oters must beable to vote, free of intimidation and violence. Thus, power Gows from the people tothe leaders of government, who hold power only temporarily. #ndependentobservers must be able to observe the voting and the vote counting to ensure thatthe process is free of corruption, intimidation, and fraud. There needs to be someimpartial and independent tribunal to resolve any disputes about the election

results. #t must be noted that there exist democratic institutions that practice mono)party system but contrary to the thin'ing of single)party or military rulers, there isno democracy without political pluralism or multi)partyism.


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express their own opinions and interests. /articipation can also involve campaigningfor a political party or candidate, standing as a candidate for political o;ce,debating public issues, attending community meetings, petitioning the government,and even protesting. + vital form of participation comes through active membershipin independent, non)governmental organizations, what we call 3civil society. Theseorganizations represent a variety of interests and beliefs participation in civic

groups should be voluntary. /olitical parties are vital organizations in a democracy,and democracy is stronger when citizens become active members of politicalparties. emocracy depends on citizen participation in all these ways. /articipationmust, however, be peaceful, respectful of the law and tolerant of the di"erent viewsof other groups and individuals.

To support the requirement of elections, voting and political parties* participation, itis important that an independent electoral body be set to up to oversee theseactivities. The importance of these elements in a democracy cannot be over)emphasized. Without its existence, true democracy cannot be entrenched. Suchelectoral body must be is independent and is guaranteed by statute or the

constitution, autonomous from government and should have a broad mandatebased on universal human rights standards. Such democracy protection body B

should have adequate powers of investigation and adequate and su;cientresources to carry out its functions.

%.% THE RULE OF LA3

The rule of law is the cornerstone for all other elements of democracy. #t connotes aconcept in which the law is autonomous from the government. Together with itspreeminent condition, equality before the law, it forms the platform upon which theedi(ce of democracy rests. #t borders on the relationship between state and societyand between citizens around an accepted set of political values and rules. B8 #tprotects the rights of citizens, maintains order, and limits the power of government.+ll citizens are equal under the law. 2o)one may be discriminated against on thebasis of their race, religion, ethnic group, or gender. The rule of law connotesfreedom from the exercise of arbitrary power by government and equality beforethe law. Where the rule of law is observed, people can have reasonable certainty inadvance concerning the rules and standards by which their conduct will be !udged,and the requirements they must satisfy to give legal validity to their transactions.Hence for icey, the rule of law is contrasted with every system of governmentbased on the exercise by persons in authority of wide, arbitrary, or discretionary

powers of constraint, so that no individual could be lawfully punished by the stateB -atherine Ousuva, “Pro&otin' the E(ecti)eness of *e&ocracy Protection +nstitutions in,outhern !frica - ,outh !fricas Pu"#ic Protector an$ Hu&an %i'hts Co&&ission”, S+0esearch 0eport : South +frica, C+, p. B. $AAI% See also? www.eisa.org.za

B8 7chenna &melonye , 5i'eria / 0 - he %u#e of Law3 Hu&an %i'hts an$ *e)e#op&ent” 2igerian Dar +ssociation -onference /aper Eaduna, AA.

http://www.eisa.org.za/http://www.eisa.org.za/http://www.eisa.org.za/http://www.eisa.org.za/


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except for a distinct breach of law established in the ordinary legal manner before

the ordinary courts of the land.40

Stephan Elingelhofer and avid 0obinson described the rule of law to refer to theobserved body of international accords and treaties, state constitutions, and writtenlaws which embody the human rights traditions accepted virtually universally $at

least in form%, and which protect individuals and order society in the respectivenations of the world.B. icey designed three fundamental principles that have become 'ey elementsof the rule of law. These elements are supremacy of the law over all, individuals andauthorities ali'e, equality of all before the law and equal amenability of all to theregular law and courts of the land. The third is that the general rules of constitutional law are the result of the ordinary law of the land. BB icey*s expositionwas given based on his understanding of the Dritish constitution.BF

+ccording to Jutto,B

'ey elements of the rule of law, as a living, evolving anddynamic concept are as follows5

. The ma'ing or existence of laws $or agreements%, including human rightslaws and agreements, that are relevant to the social needs and aspirationsof society and that arereasonable and fair to all sectors and groups in society at the national,regional andinternational levels5

B: +michai Oagen, 4he %u#e of Law an$ +ts Pro&otion !"roa$5 hree Pro"#e&s of ,cope3” :< Stanford Mournal of #nternational @aw, p. 51 (2009).

B


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. /resence of institutions for law enforcement that have the capacity toenforce the lawsQagreements and that are independent and impartial at thenational, regional and international levels5

8. The presence of a critical mass of professionals in the various organs of theinstitutions for lawQagreements enforcement such as the police, the

prosecution authorities, the courts, including administrative tribunals andprisons $correctional services% who have the capacity to enforce the laws andwho are reasonable, fair, independent and impartial5

:. 0easonable degree of understanding and general commitment in the societyas a whole to the principle of governance in accordance with the law andagreement at the national, regional and international levels5


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laws, the supremacy of the law and equality of all before the law F #n short, the =ruleof law* is the principle that no single individual is above the law. F +bsence orbrea'down of the rule of law is capable of leading to a situation whereby state lawsand institutions cannot be relied upon to regulate the behaviour of the governmentor its citizens.

9urther to the elements listed by JuntoF8, -orcoran states that for the rule of law toexist in any given society, it must be characterized by certain features. #t musthave an independent and impartial !udiciary. &quality of all must be provided for bylaw and respected by the institutions. There must exist a functional !udicial systemthrough which disputes can be resolved. There must also be due regard and respectfor the right to a fair and public trial. + society in which the rule of law is entrenchedmust have a rational and proportionate approach to punishment and a strong andindependent legal profession.F: This position was further a;rmed by the then Musticeof 2igerian -ourt of +ppeal, 1guntade M.-.+., when he said that the rule of lawimplies that a court must be free to do !ustice.F


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persons or between government or an authority and any person in

:igeria.” 14

The rule of law is meant to safeguard and encourage civil society. #t provides a safespace in which people may wor' and play together, organize, carry out their own

activities, and express their own opinions without fear of state intrusion orinterference.

The rule of law is thus closely connected to the ob!ective of good governance as aprerequisite for human, political and economic development. The rule of law is amisused, misunderstood, and at times maligned concept. #t has been distinguishedfrom the term =rule by law*. The 3rule by law4 is a legal order dependent upon andsub!ect to the government as the power regulator, but otherwise containing nosubstantive moral standards. 0ule by law allows a small group of politicians to coverthemselves in a cloa' of democratic models to continue policies that preserve thecorrupt political institutions. 0ule by law imposes no bra'es or restraint over a

government*s actions5 it can act capriciously, arbitrarily, and unpredictably. FF #t isalso expressed with the term =rule of men*. #n some cases, the 3rule of men4 is alsoused to express similar situation. The rule through law amounts to the 3rule of men,4 if the law can be changed unilaterally and arbitrarily, if it is largely ignored,or if the ruler and his or her associates consistently remain above the law.F

The concept of the rule of law serves as a theoretical blue print for designing anideal legal system and establishes equilibrium between power and law. /ure poweris arbitrary might while law is a system by which institutions channel power so thatit conforms to a people*s value and established pattern of expectations. /ower and

law cannot without the other lead to a stable society. This is because power canbecome coercive and unpredictable, and law can become inGexible and potentiallyoppressive. .FI

The rule of law is not some a magical formula. The rule of law is not a cruise controldoctrine whereby law and order are self)regulating. #t requires wor' and constantmonitoring and e"orts. #n totality, the concept presupposes a situation where

FB Governor of Lagos State v Ojukwu [1986] 1 NWLR (Pt 18) 621.

FF Luz E. Nagle,“On Armed Conflict, Human Rights, and Preserving the Rule of Law in Latin America” Stetson University College of Law Faculty Research p.11.

http://works.bepress.com

F Michel Rosenfeld,“The Rule of Law and the Legitimacy of Constitutional Democracy”74 Southern California Law Review 1313 ( 2001)

FI Wiley Y. Daniel, “The Rule of Law” Nigerian Law and Practice Journal (Council of Legal Education,Nigerian Law School, 1997), pp.114- 115.

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everything is done according to laid down principles. The promotion of the rule of law must be encouraged as it will not only form an agenda of promoting access to

!ustice and bring the formal system of !ustice closer to the people but will alsoensure that the poorest section of any population, who su"er most from arbitraryimplementation are protected.A

The rule of law has been established in various stages in the world*s democracies.#n the (rst wave of democracy $B)IB in &urope and the +mericas%, the rule of law was, to a large degree, established before serious attempts began to enlargethe franchise. #n the second wave, $I:B)IB< associated with decolonisation in+sia and +frica%, elements of the rule of law were left as part of the colonialinheritance. However, for third wave democracies $since IF:, including S. &urope,@atin +merica, &. &urope, parts of +sia, and sub)Saharan +frica% there was often onlya very limited level of the rule of law in place. These states were faced with havingto introduce it after the (rst competitive elections. This reversal of the historicorder of establishing the basic institutions of the modern state before competitiveelections are called has been termed =democratising bac'wards*.

%.+ THE NE6US BET3EEN CONSTITUTIONAL DEMOCRAC2 AND HUMAN

RIGHTS

+ constitution is not merely a document introduced by the state with the title of =constitution*. Oany authoritarian regimes introduce such documents to !ustifyarbitrary rule. Thailand, for instance, has had a new constitution virtually every timethere is a change of power. + genuine constitution ma'es e"ort to limit and reverseall forms of arbitrariness. #n the same vein, Must as mere constitutions do not ma'ecountries constitutional, political parties and elections do not ma'e governments

democratic. Several +sian countries have been termed =illiberal democracies*, forwhile they have periodic elections, they are not governed by the rule of law and donot protect the rights and liberties of their citizens.8 Without genuine democracy,there can be no constitutionalism.

A Bert B Lockwood, Jr. et al (eds.). 22“Human Rights Quarterly” 749. The Johns Hopkins UniversityPress (2002).

Bruce Baker, “Policing and the Rule of Law in Mozambique” 13 Policing and Society, 2( Routledge, UK) 139-158 (2003)

R.Rose and D. Shin,“Democratization Backwards: The Problems of Third- Wave Democracies”,31 British Journal of Political Science, pp 331- 354 (2001).

8 For example, India and Sri Lanka.

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+s have been noted, constitutional democracy means more than the functioning of e"ective representative institutions and an existent constitution. #t also meansupholding fundamental principles, particularly the rule of law and respect for humanrights. Human 0ights and the 0ule of @aw see' to ma'e sense of human rightsthrough the lens of its triumphs and tragedies, its uneven developments andcomplex demands. Human rights are a subset of the rule of law. The rule is part of

democracy in its integrative sense. 0espect for human rights is vital for thedemocratic edi(ce to stand. + democracy has no raison d;


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been applied and respected. #t is clear that without the rule of law, constitutionaldemocracy may very well be a moc'ery of terms without expectation of any salvi(cfunction. While it is agreed that some non)democratic states Fdo, in fact, seem tohave had or now have legal systems that meet the requirements of a thin rule of law, it must be emphasized that the success of the rule of law can best be achievedin a democracy and vice)versa. #n other words, democracy and rule of law generally

tend to be mutually reinforcing. #t is pertinent to state that the extent of this=mutual reinforcement* remains unclear. That means that the characteristics therule of law must possess to help sustain constitutional democracy and speci(c roleit must assume to ensure a wor'ing constitutional democracy is still unclear.

#nitial human rights movement paid relatively little attention to the relationshipbetween rule of law and human rights. The 7niversal eclaration of Human 0ightsmentions rule of law only in passing in the preamble, suggesting in typicallycryptic fashion that human rights should be protected by the rule of law. 2either the#nternational -ovenant on -ivil and /olitical 0ights $#--/0% nor the #nternational-ovenant on &conomic, Social and -ultural 0ights $#-&S-0%, the other two main

pillars of the 3international bill of rights,4 mentions rule of law. 2or do most otherearly rights treaties, general assembly statements, committee reports or commentsappeal to rule of law.I However, with increased recognition and appreciation of human rights, references to rule of law now regularly appear in Jeneral +ssemblyresolutions, committee reports, regional wor'shop platforms and other human rightsinstruments. #n AA, the late 7.2. Human 0ights -ommissioner, Sergio >ieira deOello made rule of law the centerpiece of his brief tenure in o;ce.IA

Human rights are a necessity for democracy. #f human rights are undermined,democracy is also undermined. Doth concepts are intertwined. The cardinal

principle of equality, of equal human dignity and equal protection, has perhaps beenthe dominant force or fuel for the growth of the human rights movement. #t, today,informs ideas in many states about indispensable elements of democracy. I

F It is not uncommon to hear of terms like semi-democracy, pseudo-democracy, illiberal democracy,limited democracy, mandatory democracy ascribed to some states.

Mary Ann Glendon,“The Rule of Law in the Universal Declaration of Human Rights”2 N W. U. J.INT'L HUM. R TS. 5 at para 6. (2004) Alsohttp://www.law.northwestern.edu/journals/jihr/v2/5

I Randall Peerenboom,op. cit.p.2.

IA ibid.p.3

I Henry J. Steiner,“Two Sides Of the Same Coin? Democracy and International Human Rights” 41 ISR. L. REV., 458 (2008)

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9or genuine democracies, constitutions consist of overarching arrangements thatdetermine the political, legal and social structures by which society is to begoverned. -onstitutional provisions are, therefore, considered to be paramount orfundamental law. +ll other laws within a country must abide by and follow theprinciples of the constitution. #f constitutional law itself is inadequate, the nature of democracy and rule of law within a country is a"ected. This will, in turn, a"ect

citizensK human rights, which can almost only be realized and protected under a ruleof law framewor'. This pertinently describes the relationship that underlies theseconcepts.

#n any democratic society, administration of human rights doctrines is embedded inat least three elements of democracy. These are protection of the fundamentalrights, observance of the rule of law and separation of powers of law)ma'ing. +s aresult of these ground rules, enforcement of human rights in a constitutionaldemocracy involves division of labour, for example?

. The /olice are expected only to arrest and investigate an o"ender5

. /rosecutors are to lay complaints and evidence against $and infavour% of an o"ender before a !udge5

8. efence attorneys are to present the defence of a suspect before thecourt5

:. The courts will be responsible for the interpretation of the law, and todetermine the context of the provisions of the law made by thelegislature.

9urthermore, ma!or lin' between democracy and human rights is the availability of

mechanism through which those whose rights are violated see')redress and thatthose who cause the violations are investigated, tried and punished if found guiltyor liable. +lso, public o;cials and security operatives who violate peopleKs rights oropenly indulge in dehumanization of citizenry should not go unpunished. Humanrights serve as moral constraints on political o;ce holders and institutional heads ina democracy.

-onstitutionalism is the institutional basis for enforcement of rights in any society. #tis safeguarded by the rule of law. -onstitutional democracy is safeguarded by therule of law. 1nly when the supremacy of the rule of law is established, can

supremacy of the constitution exist. -onstitutional democracy additionally requirese"ective laws and their enforcement to provide structure to its framewor'.

emocracy is based on a proper relationship between the interests of society andhuman rights. Doth society*s interests and human rights are part of a uni(ed legalstructure that both determine the scope of human rights. This relationship helpsunderstand when the state !usti(ed in restricting human rights. Human rights can

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only be restrained when it is for a greater public good. This =good* must be broughtto public or societal 'nowledge by the constitution.I

2otwithstanding their profound inGuence on society as a whole, Human rights andconstitutional democracy could also diverge at some point. 0ights, in some manner,fragment, empowering and encouraging people to direct their lives in their

separately chosen directions, while democracy tries to draw people into a deeperparticipation in the society including active engagement in the common enterpriseof self)government.I8

#n the face of their distinct histories, their prominent di"erences in nature andfunction, and the deeper institutionalization of rights in international law andinstitutions, human rights and democracy have become inextricably intertwined.&ach, unaccompanied by the other, can realize only part of its potential andsurvives at its peril. Together, the two complement and fortify each other.

Today human rights and democracy form part of the same grand narrative of

aspiration and hope for our sorry world.I:

I Aharon Barak,“Human Rights And Their Limitations: The Role Of Proportionality”, Annual

Lecture in Law And Society in Association With The Law Faculty And Centre For Socio-Legal Studies,

University Of Oxford.(2009) See http://www.fljs.org.

I8 Henry J. Steiner, op. cit.p. 456 -457.

I: ibid. p. 476.

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-H+/T&0 TH0&&

HUMAN RIGHTS AND THE RULE OF LA3 IN EMERGING DEMOCRACIES

#n the preceding chapter of this essay, # have made e"orts to explain what humanrights and the rule of law means. While the application of the rule of law and humanrights seem to be ta'en for granted especially in countries that practice democracy,it is agreed that the precise scope or meaning acceded to these them could di"er.

This is especially true in new or emerging democracies where the nation concernedhas to learn continually $and unlearn% the true meaning of these terms. Dy emergingdemocracies we simply mean those societies that have !ust opened up for theentrenchment of the principles of democracy. They are societies in which democracyis !ust gaining ground, where the concept of democracy is !ust being learned.

evelopment of the rule of law remains one of the main priorities in nascentdemocracies and developing nations. The world*s conceptions of democracy itself,and its relationship to various freedoms and social and institutional capacities will

always be critical. +lso the main focus of human rights law has been on the variousrights that see' to strengthen, legitimize and entrench liberal democracy. I


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found wanting in its practise of the rule of law. #n a democracy, authority issupposed to be exercised in the public interest and for the good of society. #ndeveloping countries there is a general bias that policies formulated cater for theinterest of the high and middle class, not the lower class who are thought to memore in need of these policies. The manner of politics practised in these states canbe described as misguided.IB The raison d;etre of any government must be the

welfare of the people irrespective of their social classes.

+ strong rule of law does not necessarily follow from the implementation of politicaldemocracy. 1nly relatively few citizens of emergent democratic countries would saythat the apparent global consensus on the importance of the rule of law hastranslated into actual mar'ed improvement of the state of law in their societies. #tinvolves an all round transparent policies and actions. #n developed democraticnations for instance, a /resident and his deputy as well as state governors and theirdeputies en!oy immunity only for carrying out those acts that fall within the normal,legitimate duties of their o;ce. When such o;cials commit crimes, such as Dill-linton did when he per!ured himself in the Oonica @ewins'y case, or former

Jovernor 0od Dlago!evich of #llinois who tried to auction o" Darac' 1bama*s Senateseat, they are arrested, indicted and prosecuted.IF

7nless these issues bothering the rule of law are addressed democracy will bethreaten in these states

+.%.THE RULE OF LA3 IN EMERGING DEMOCRACIES IN AFRICA

1ver the last two decades there has been a revival of democratic politics in +frica.Dy II


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2&/+, have had their inGuence in the importance +frican states are placing in goodgovernance. 2&/+ provides that development is impossible in the absence of truedemocracy, respect for human rights, peace and good governance. #n other words,one can say that 2&/+ does not see the possibility of development without therule of law. 9urthermore, most constitutions now provide for term limits for/residents. #t is worthy of note that the constitution despite its existence, has only

recently in emergent democratic countries such as 2igeria and the former SovietDloc, began to focus on law as mediating deep social divisionsI

1ppositionists, in most new democracies, on the other hand have not been verynationalistic in its quest for change or a stronger rule of law. +s Ewasi /rempeh opines, their motivation is by the desire to form the government themselves.II #nJhana, the 2ew /atriotic /arty $2//%, between II8 and AA, as an oppositionparty strongly opposed the /resident*s authority to appoint mayors and called forthem to be chosen by local popular vote instead. However, in AA when it becamethe ruling party, it not only zealously guarded the /resident*s power to ma'eappointments to mayoralties, but even bac'ed the creation of more such o;ces.AA

@egislatures in most of +frica*s new democracies seem not to have emerged fromthe shadows of executive hegemony to which decades of military or /residentialistone)party rule have consigned them. /rempeh believes that what is responsible forthis factor ranges from path dependency, to legislative abdication, andconstitutional design accounts for this state of a"airs.A +ccording to a recentnewspaper report, the police in Jhana has increasingly been disregarding the ruleof law and have gradually become trigger)happy. +bout a month or two ago,teachers who were demonstrating when their leadership were having a meetingwith the @abour -ommission and the Oinistry of &ducation were brutally beaten by

the police for exercising a right guaranteed under the constitution for minorallegations.A +nother area were Jhana seem not to have made remar'able

I Samuel Issacharoff,“ Constitutionalizing Democracy in Fractured Societies”

82 Texas Law Review 1864 (AA8) AA:%.

II Kwasi H. Prempeh,“Progress in Africa: Presidents Untamed”19 Journal of

Democracy 112 (2008)

AA Ibid. at pp 112-113

A Ibid. at p.114

A “People Die As The Police Mock The Rule Of Law” see www.theheraldghana.com

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progress is that of access to !ustice as some sections of the citizenry are routinelydenied access to !ustice because they cannot a"ord legal representation.

#nspite of the fact that Jhana*s democracy continues to be lauded by establisheddemocracies, its 2ational +ssembly in AA re)enacted a IBAs)era law that givesthe /resident authority to establish or abolish government ministries or

departments without recourse to the legislative approval.A8

0emar'ably, Jhana haswitnessed a great change in its democratic regime since II8. Jhanaians nowen!oy unimpeded access to news, editorial opinions, and political commentary frommultiple independent sources. +fter a three decade)old monopoly, the insurgence of private media has brought a di"erent outloo' to the rule of law in Jhana. Theprivate media have played a ma!or role in exposing scandal and malfeasance inpublic o;ce and have generally 'ept politicians under scrutiny.A: #n its AAindexA


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legislatures rather than focus on its constitutional role of @aw ma'ing, has continuedto approve mammoth salaries and allowances for themselves. The executive arm ofgovernment has a greater tas' to uphold the rule of law because its variousagencies impact on the lives of the totality of 2igerians. With the recent sp

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