By Vallai M. Dorley
Today, we live in a world where up to present over 123 countries have now embraced democracy as a form of government and some are severely struggling to consolidate democratic governance and the rule of law while others are grappling to prove that they are democratic nation-states in practice and deeds not just by paper or verbal declaration. In the last three decades, democracy has spread across the globe in unprecedented ways. Democracies increased from 48 countries in 1989 to over 123 today. This includes some of the richest and poorest countries in the world, proving that democracy is not a luxury for the wealthy.
Democratic activists and ordinary citizens throughout the world have repeatedly proved that democracy is a universal value and aspiration. Perhaps the most compelling evidence that democracy is a universal value comes from the many authoritarian governments that seek to wrap themselves in the veneer of democratic legitimacy.
The spread of democracy across the world has been the most dramatic changes the world has ever witnessed especially since the end of the cold war and in the course of humanity. Humanity has seen in different countries where people have risked their lives to demand from their governments, free elections, democratic accountability, the rule of law and respect for human rights. And in honest, free and transparent elections, democratic accountability and respect for human rights are the indispensable roots and values of democracy.
For democracy to thrive, there are certain basic democratic values that are considered enablers or the key building blocks of democracy and the rule of law. In democratic societies where there exist efficient, impartial and independent judiciaries, freedom of expression, freedom of assembly and freedom of association and democratic institutions that work independently without political interferences, that societies will automatically flourish. And certainly true, when these core values are heavily embedded in any democratic culture or governance, they can be a powerful catalyst for better governance, greater security and human development. But sadly, when they are absent in a democracy, it threatens the stability of a nation’s peace and ultimately erodes national development and growth simply because citizens obviously will have no recourse to peaceful political change. Hence, the risk of conflict increases while corruption, intimidation, and fraud go unchecked, thereby rotting the entire political system from within.
Since the inception or origin of democracy, there have been conflicting and varying definitions about what democracy actually is and its core values. The expression that democracy is a government by the people in which the supreme power is vested solely and wholly in the people and exercised directly by them or by their elected agents under a free electoral system derived from the classical definition given by one of United States of America’s greatest presidents, Abraham Lincoln. He further posited and espoused the view that democracy is a government of the people by the people and for the people.
But interestingly though, this definition or postulation appears imprecise and elusive among contemporary scholars when it comes to which people the legendary Abraham Lincoln was referring to as of the people and by the people. It should be noted, however, that democracy is not as simple as this definition suggests. In Robert Dahl’s definition, democracy is ‘a society in which ordinary citizens exert a relatively high degree of control over leaders’. What runs through the above definitions centers on the issue of citizens but the question now is: who are the citizens? The children? The unlettered? The imbeciles? The lunatics? Are these the set of citizens or people being mentioned? This question is apposite and pertinent here because there is a difference when discussing about people and persons. What demarcates the two set of human beings is the gift of rationality in human persons and not with people. Apart from this difference, there is still the problem that the term is so vague and more importantly, what one person would regard as a paradigm case; another would deny was a democracy at all.
The concept of democracy ought to be approached by examining its essentials as contents of the term. It should be known from the outset that democracy expresses both principles and ideal. That is, principles, which those who believe in democracy wish to be given practical expression in the laws and institutions of the society; and ideals which provide goals toward which man in society should constantly aspire for the betterment of the society. From the fore-going, the focus of this research proposal shall not be adhered or centered on the definition of democracy alone but rather on the essence and significance of the rule of law on which the practice of democracy as a political ideology and system stands and rests. Meaning that, it is to thematize that without an implementation of a functional rule of law, such democratic system becomes a sham and pointless. This idea and ideal of the rule of law in any democratic society, if given a priority will portray good governance in human society.
Statement of the Problem
Global recession and rising inequality are putting extreme pressure on many democracies, including older ones, to show that they are relevant to citizens’ concerns and well-being. In the Arab world, where democratic aspirations have long been thwarted, citizens now have unprecedented opportunities to realize those aspirations, but also face dangerous pitfalls. The rise of uncontrolled political finance threatens to hollow out democracy everywhere in the world, and rob democracy of its unique strengths – political equality, the empowerment of the disenfranchised, and the ability to manage societal conflicts peacefully.
Challenges to Democratic Values and the Rule of Law
An independent judiciary is essential to a functioning democracy. State legitimacy is undermined when the judiciary does not act as a positive force for social change, with considered independence and in a manner that promotes ethical political leadership. Alongside the executive and legislature, it is one of the three essential branches of government. The separation of powers ensures that these three branches work free from each other’s direct control as part of a system of checks and balances. The unequal exercise of power in the international geo-political system and the insertion of sectional economic interests into legal processes serve to undermine constitutionalism and a wider commitment to the rule of law.
Economic realities and forces often serve to undermine the exercise of national political agency and hence make it very difficult for the judiciary to mediate the realities of exclusion and poverty within a framework that secures commitment and adherence to the rule of law.
The point being made here is that it is imperative that in any democratic society, the rule of law must be taught in all the members through education, good example and the consistent application. It is one thing to accept the rule of law as a democratic principle, and it is another thing to provide institutions for its implementation. In a democratic society, the rule of law places limitations on the power of the government in the interest of personal freedom and for this to be effective; there is the need for an independent judiciary. The most elaborate system of substantive, procedural and remedial provisions is meaningless without an independent, impartial and competent judiciary for one reason, which is administration. Without jurisdiction to administer, the law is purely academic and without a proper judiciary, the jurisdiction to administer is purely oppressive.
As an idea about government and the rule of law, the whole essence is that all authority is subject to and constrained by law (Mason, 1995). It is the highest law of mankind and profound truth, which allows the most dangerous predator (man) on the planet to live together in peace and harmony, co-operating for mutual self-interest and progress as in the social contract theories of Locke, Hobbes and Rousseau to rise from the state of nature. It is also the highest intellectual achievement of man, the result of objective consideration of man’s goals; nature, environment, history and survival no one is above the law, which is after all, the creation of the people, not something imposed upon them. The citizens of a democratic society submit to the rule of law because they recognize that, however indirectly, they are submitting to themselves as makers of the law. When laws are established by the people who then have to obey them, both the rule of law and democracy are being served. The rule of law requires both citizens and governments to be subject to known and standing laws. This must include a distinction between law and executive administration, and prerogative decrees. A failure to maintain the formal differences between these must lead to a conception of law as nothing more than authorization for power, rather than the guarantee of liberty, equally to all.
The Rule of Law and its Implication in Developing Democratic Societies
The evidence of problem in developing societies, which is in the non-implementation of a functional rule of law could be seen in the disregard and manipulation of the national constitution; election and electioneering fraud; abuse of political power; legal and judicial perversions; low regard for the electorate among others. All these emanate from less respect for the rule of law in the society! Busia in his paper Democracy and One Party System says that every democratic community must have effective checks on its rulers. Democracy rejects the view that the leader and the group around who lead the single party always infallibly seek the interests of the people, or embody the will of all. Every human being who is mortal is equally fallible; therefore, it implies the right of the people to oppose and their right to choose and to change their leaders. The political institutions must provide democratic outlets for the exercise of those rights. But this is a mirage in many developing democratic societies especially in Africa where the electorate are left with nothing but to succumb to the whims and caprices of the “selected” few because there is arbitrary disobedience to the proceedings of the judiciary by the executives. Here, the judiciary is not independent and autonomous; in practice, it is subject to the whims and caprices of those in power.
This piece has been able to examine and argue on the basis that the rule of law stands out and it is the most fundamental essential in democracy of which without its functional implementation, democracy and democratic praxis become meaningless. Here, developing nations’ democratic practice will contribute to the growth and development of both the state and society when and only if functional rule of law is implemented. It is on its hinge that democracy and good governance could be preserved and sustained. The benefits of the rule of law are innumerous; it proposes that government should have restraints, not possessing discretionary powers. There should be legal controls over government activities and no one including those at the helm of affairs should be above the law. These principles if successfully implemented within the state will result in national stability of which will guarantee good governance and security of individuals.
The application of the rule of law is a situation in which everyone, both in authority as well as those whom they govern, respects the law and the rights of others under the law. The question arises; why is observance to the rule of law so important? It is the most fundamental requirement for a stable democratic society (civil society). The importance of the rule of law lies partly in the power it limits those in the society and in the discipline to which it subjects all authority. The power and discipline are conditions, which in a democratic society, come from the community. The emphasis on the rule of law as part of developmental initiatives stems from the widespread belief that the rule of law is a pre-condition for economic development. Therefore, a functional rule of law is considered an important characteristic and a pre-requisite for democracy to work in developing societies.
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