Rule of law or law of the rulers?
I have been struggling with a commissioned article for an online journal about ‘the rule of law’. I was not sure which angle to take, given the multifaceted entry points to this widely used and abused concept and the even more diverse practice and bad practice in real and lived experiences. The question is whether the rule of law is simply a concept used by powerful nations or classes to legitimise their domination of the poorer and weaker nations and classes. When it suits their interests, they will preach rule of law. But they will quickly dispense with any notion of the law, if their interests are threatened.
Another related issue is the normative assumption that all citizens or countries are equal before the law, that our actions are circumscribed by the law whether we are rulers or the ruled, prisoners or presidents, men or women, the minority or the majority, whatever our religion, region, ethnicity, race, nationality, class or clan, whether we are rich or poor countries.
Globally these are not good times both for the concept of the rule of law and the notion of equality before the law. Western countries in general, the US in particular, demand democracy, rule of law and compliance with ‘international standards’, in spite of their continuing flouting of those same standards. Only last week, the US State Department released its annual ritualistic reports on human rights conditions everywhere around the world, except in the US itself!
The report predictably condemns those labelled pariah states - Sudan, Eritrea, etc, and remains silent or lenient about the current darlings of the US - Ethiopia, Kenya and others, while avoiding its own abuses. How can a country that bombs other peoples as it pleases; illegally detains thousands in a third country; and abducts citizens of other countries in the name of ‘rendition’ be so shameless as to be issuing such reports? After Guatanamo, Afghanistan, Iraq and now Somalia, the US should be humble enough not to lecture anyone about rule of law: because it is the most powerful rogue state today. It is so law abiding that it has never signed up to the International Criminal Court (ICC), and will go to war for ‘UN resolutions’!
Bad practices of the West, the US in particular, undermine any regime of international law, and aid other countries in their flouting of international and national law. A situation where everyone is guilty, or potentially so, does not create an environment in which everyone would wish to voluntarily respect the law. Instead the law is interpreted in terms of what you can get away with. For instance, so far, the ICC has been bedeviled by accusations that it is only poor countries, along with regimes and dictators that are out of favour, which are facing trials, such as the late Milosevic or Charles Taylor. Until the day George Bush, Tony Blair or their generals are brought to trial before the ICC for foisting a war that even the UN, albeit belatedly, declared ‘illegal’, no one will believe that international law respects either persons or nations.
However the hypocrisy and lawless behavior of the US should not excuse other states not being law abiding. The bad manners of others should not be a license for the lawlessness of our own leaders. We should ask why is it that only they want to copy Western leaders or declare their sovereignty when it comes to bad practice? Why can they not copy them in terms of respecting and defending their citizens?
For instance, drought regularly occurs in some regions of America but does not become famine, because the country stores enough to take care of most emergencies. Ethiopia and Eritrea on the other hand are ready to beg for food for their citizens but willing to fight wars on behalf of the same citizens. Why is Meles Zenawi willing to be a Bush in Somalia, but not vis-a-vis his starving compatriots?
The past two weeks have not been good for law, human rights, citizenship rights and the democratic movement in Africa in general. As I write, the leader of the opposition in Zimbabwe, Morgan Tsvangirai, and other colleagues are in hospital as a result of injuries sustained from the police and other security agents who had arrested them allegedly for participating in an ‘illegal’ prayer meeting. You do not have to be a sympathiser of the opposition MDC to condemn the callousness of the Zimbabwean police and other security thugs. Does Tsvangirai really deserve to be beaten up on the television?
Assuming he and his colleagues are indeed guilty of an illegal act, is it not the responsibility of the courts to convict or acquit them? Is it the duty of the security service to administer punishments to suspects? Supposing they are acquitted by the courts, what penalties would the police thugs pay for their brutalities? Even an accused person has human rights, as do prisoners, irrespective of the gravity of their crimes.
In Uganda, the judiciary that many members of the opposition and human rights activists have always criticised - if sometimes unfairly - as too timid, complacent or conservative, has finally found its voice. It confronted the excesses of the executive over the years, after being pushed against the wall by consistent lawlessness of security agents. All observers and critics agree that rebels and judicial activists are made of sterner stuff than the painfully moderate and loyal personalities of Justice Odoki and Kanyihemba. When such legal luminaries begin to support strikes instead of the President and his over zealous boys (and boys they all are), berating the judges, or threatening to ‘fix the judges’, then they should look at their own bad manners. No government that claims to be based on the will of the people, rule of law and constitutionalism can disobey the courts as and when they please, and expect the citizens to be law abiding.
What threatens a culture of the rule of law taking root in Africa is not the criminals, rebels or disloyal opposition, rather the many reluctant democrats who occupy state houses across this continent. Because we deify them as presidents, they think they have the right to preside over any matter that concerns their citizens: from our toilets not flushing, through who we sleep or should not sleep with, to how judges should interpret the law.
Consequently those who serve them in the security and intelligence agencies believe they can get away with anything, including torture, abuse, humiliation, corporal punishment, intimidation and other kinds of excesses, in the service of their masters. The rule of law will remain a pipe dream so long as presidents perpetrate or condone these acts. It must be a ‘first’ that President Museveni made a grudging apology to the judges. More importantly however, both the president and his trigger-happy security elements need to accept that the rule of law is not a ‘katogo’ meal (a Ugandan delicacy for the masses, bits of this and that, similar to what Kenyans call Sukumawiki) made in state house that they can cherry-pick.
In Nigeria, Obasanjo has the same a la carte attitude to parliament, judiciary and the country. He simply goes on regardless of what the law says, or the people feel. These cavalier attitudes to the law are undermining the principle of separation of powers, and any notion of checks and balances. They are creating elective dictatorships across the continent.
If these presidents think the law is wrong, they can change it through the parliament. But they should have no discretion to choose which of the laws they obey. Similarly, citizens who think a particular law is wrong or unjust, can exercise their right to lobby or campaign to change it, including even defying such laws - as many defied the infamous Pass laws in apartheid South Africa or many colonial laws in the nationalist era. But they must also be ready to face the consequences. The state is not the personal property of the president. Therefore those opposed to him or her should not be treated as if they are ungrateful tenants. We have to deliberately de-programme ourselves, so as not to see opponents as ‘enemies’, and difference in opinion as treason.
Dr Tajudeen Abdul-Raheem, is Deputy Director, Africa, UN millennium Campaign and more recently General-Secretary of the Global Pan-African Movement.
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