The term ‘rule of law’ can be interpreted as the restriction of arbitrary exercise of power by subordinating it to well-defined and established rules/guidelines. The rule of law expressly set standards that no branch of government is above the law and no public official may act arbitrarily. It is absolutely wrong for any government or government official to subdue one to civil damages or suffer criminal punishment except in strict accordance with well defined laws and procedures. Despite its ancient history, the modus operandi of the rule of law requires governments all over the world to exercise their authority within the prescribed legal framework “Rule under the Law, “Rule according to Law” and “Rule according to higher Law”. Below we shall take a look at the three contexts of the above legal framework and cite example of an attempt to breach them by a former President.
THE FIRST CONTEXT OF THE RULE OF LAW IS “RULE ACCORDING TO LAW”
The global campaign for the operation of the rule of law has as a requirement that government all over the world should rule according to legal principles. Philosophers of the concept of the rule of law drew a distinction between power, will, and force, on the one hand, and law, on the other. When a government acts pursuant to an express provision of a written law, he/she acts within the rule of law. But when a government acts outside the law, he or she does so by the sheer force of personal will and power.
The principle of the rule of law prohibits when a government seeks to punish someone for an offense that was not deemed criminal at the time it was committed. This is viewed as a violation of the rule of law because the government exceeds its legal authority to punish. The rule of law requires that governments impose liability only insofar as the law will allow. Government exceeds its authority when a person is allegedly punished for a crime he did not commit. Such action is not only frowned at but illegal in the eyes of the law. For similar reasons, the rule of law is abridged when government attempts to punish someone for violating a vague or poorly worded law. Ill-defined laws confer too much discretion upon the government, which is charged with the responsibility of prosecuting individuals for criminal wrongdoing. The more prosecutorial decisions are based on the personal discretion of a government, the less they are based on law.
Rule according to law is serving as a guiding principle for government all over the world to always rule within legal framework. It further prescribed that Government must not be given unfettered discretion to prosecute individuals for violating a law that is of such broad applicability and applied to only few in society. Procedurally, before a government may impose civil or criminal liability on anyone, a law must be written and apply to everyone with sufficient precision and clarity that a person of ordinary intelligence will know that certain conduct is forbidden.
THE SECOND CONTEXT OF THE RULE OF LAW IS “RULE UNDER THE LAW”
The rule of law requires government to exercise its authority under the law. This requirement is sometimes explained with the phrase “no one is above the law”. The rule of law prescribes that, no branch of government is above the law, and no public official may act arbitrarily or unilaterally outside the law. The effect is to ensure that even those who are empowered to supervise the proper and diligent operation of the “arbitrary exercise of power by subordinating it to well defined and established rules/guidelines” are themselves adequately tailored in a bid to secure against the warning that “Power corrupts and absolute power corrupts absolutely”.
It was recorded that the English monarch during the 17th century was vested with absolute sovereignty, including the prerogative to disregard laws passed by the House of Commons and ignore rulings made by the House of Lords. In the 18th century, absolute sovereignty was transferred from the British monarchy to Parliament.
THE UNITED STATES CONSTITUTION
One of the constitutions I admire so much is the United States Constitution. It might not be the best but it sets proper procedural standards. For instance, the U.S Constitution stipulates that no single branch of government is given unlimited power. According to the U.S constitution, authority granted to one branch of government is limited by the authority granted to the coordinate branches and by the Bill of Rights, federal statutory provisions, and historical practice. The power of any single branch of government is similarly restrained at the state level. This concept “Rule under the Law” is all about setting standards that government and government officials must carry out their duties or exercise their powers under the laws of the land. No government or government officials should be seen powerful than the laws of the land.
AN ATTEMPT TO BREACH PROCEDURAL DUE PROCESS
An attempt to act unconstitutionally by a former President was seen in the case: UNITED STATES OF AMERICA v NIXON, 418 U.S. This case was before the Supreme Court of the United States and involved former President Richard M. Nixon. President Richard M. Nixon during his second term tried to place the Executive Branch of the federal government beyond the reach of legal process. When he was served with a subpoena ordering him to produce a series of tapes that were anticipated to link him to the Watergate conspiracy and cover-up, he refused to comply, asserting that the confidentiality of these tapes was protected from disclosure by an absolute and unqualified Executive Privilege. In this case, the Supreme Court disagreed, compelling the president to hand over the tapes because the Constitution forbids any branch of government from unilaterally thwarting the legitimate ends of a criminal investigation.
I salute the Supreme Court judges who presided over the above matter in the U.S. They maintained their integrity by setting standard and strictly following procedural due process. Being a President does not allow you to rule above the law but rather rule under the law. Judges must be firm in fully interpreting the constitution and ensure that the rule of law is respected and observed by all no matter your position. It is clear from that case that in interpreting the constitution, judges must not allow government to exceed its authority as interpreters of the law. Judges must not allow themselves to be politically influenced in interpreting the constitution. This is a land mark case that judges assigned to interpret matters relating to the constitution should emulate in passing judgment in a matter where there is an allegation of a President violating the constitution.
THE THIRD CONTEXT OF THE RULE OF LAW IS “RULE ACCORDING TO HIGHER LAW”
The third context of the rule of law is “rule according to higher law”. It is evident that no self made law may be enforced by any government or government official unless it conforms to the constitution. I have found out that a huge legal challenge is often faced by presidents who tend to breach legal principles by acting contrary to “Rule According to Higher Law”. Higher laws are established to regulate the actions of both state actors and non state actors. The legal breach of higher law by government can be viewed as illegal and or unconstitutional.
It is my belief that all laws must be seen as a necessary consequence to the maxim “no one is above the law”. The rule of law requires that governments treat all persons equally under the law. It is often alleged that some governments give maximum level of attention, respect, dignity, and autonomy to a single class of individuals on the bases of their tribal, regional and or party affiliations. This is done when government categorically deprived other individuals of their fundamental human rights. Governments should ensure that they “Rule according to Law, “Rule under the Law” and “Rule according to higher law”.