Fundamentally it means that peoples rights and obligations must be determined by laws rather than by individuals or groups of individuals exercising an arbitrary discretion, explains Veritas. From this concept several principles are derived:
Legality: People must not be deprived of their rights or freedoms through the exercise of wide discretionary powers by the Executive. Rights and freedoms should be curtailed only by the ordinary courts applying the law.
Equality: No one is above the law and everyone is subject to the jurisdiction of the ordinary courts. State officials, and even the State itself, are subject to the law. Everyone is equal before the law and is equally entitled to be protected by the law.
laws should be enforced impartially; and should apply generally and not just to particular individuals or classes of people.
Separation of Powers: There must be a separation of powers between the Legislative, the Executive and the Judicial branches of government. If the Executive makes the law and enforces it, then we have the rule of man, not the rule of law; and the same applies if the Legislature enforces its own laws or if the courts make the law rather than determine rights and duties under the law.
In order for any new constitution to ensure the rule of law, it must limit the powers of each branch of government, says Veritas. If the new constitution provides for a powerful executive with extensive discretionary powers then there cannot be the rule of law.
In addition, everyone, including government officials and the State itself, must be subject to the law. This should be stated expressly, but in addition it should be reinforced by provisions giving ordinary people the right to sue the State and its officials for infractions of their rights.
The separate roles of the different arms of government must be clearly stated in the Constitution, and there should be a statement that, as a general principle, their powers should be kept separate. It should be clear, for example, that a law such as the Presidential Powers (Temporary Measures) Act is contrary to constitutional principles. The power of the Executive to appoint members of the legislature, whether directly or indirectly, should be removed or severely curtailed.
All judicial officers, including the Attorney General, magistrates and judges must be appointed by an independent body. The Judicial Service Commission established under the present Constitution is inadequate for this purpose since most of its members are appointed by the President.
Apart from the judiciary, the enforcement of the law is mainly in the hands of the police. Their impartiality could be improved, if not ensured, by giving the Police Service Commission power to oversee the operations of the Police Force and to institute measures to improve its efficiency and impartiality. And a police complaints office could be enshrined in the constitution.
The defence and intelligence services should have nothing whatever to do with the enforcement of the civil law.
Post published in: Opinions