Professor Muna Ndulo speaks on Rule of Law in Zambia today
By Professor Muna Ndulo
The recent Zambia Episcopal Conference Pastoral letter warns us: “we call upon the Government to embrace the spirit and letter of democracy before the nation is plunged into chaos.”
The admonition that Zambia is headed towards a breakdown of the rule of law and its attendant concept of constitutionalism unless it changes direction is a warning we must take to heart and act upon. Or else we run the risk of becoming what Swift warned “in reason, all government without the consent of the governed is the very definition of slavery.” The church also reminds us that multiparty democracy replaced the Kaunda one party dictatorship in 1991 through the heroic struggles of the Zambian people.
In a true democracy, people do not get injured or stoned for exercising their right to assemble or their right to freedom of speech; people are not subjected to constant threats and insults from demagogic party cadres for demanding good governance and accountability from those in power; court orders are not ignored with impunity and the police are professional,act value ethics and police ehoes and take their job to enforce the rule of law seriously and fairly. In this short article I attempt to define the concept “rule of law” as properly understood and its significance in democratic governance.
At the outset it is important to point out that the “rule of law” never has and does not mean “rule by law.” The later concept is devoid of values and in fact even the worst dictatorships such as Idi Amin was one that was ruled by law. One of the most important political and legal conceptions in good governance is the concept of the rule of law. In today’s world, nations from virtually every region recognize that the rule of law and the protection of human rights are critical factors in nation-building and good governance. As Jefferson explained “It is to secure our rights that we resort to government at all.”
Therefore the question that arises is this: what exactly is meant by the rule of law and in what ways can it assist in nation-building, the promotion of good governance, and the protection of human rights. Dwight Eisenhower observed: “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.” There are several examples,-Somalia probably being the most well- known. The rule mandates the elimination of wide discretionary authority from government processes. It means the existence of formal rules which do not involve a choice between particular ends or particular people, and which are there for the use of everyone, for the purpose for which people will decide to use them. The concept assumes the existence of inalienable rights and liberties which governments should not impinge or violate. Predominant among such rights are property rights, the right to free expression, freedom of association, equality before the law, due process, and protection against discrimination. “The very problems that democratic change brings — social tension, heightened expectations, political unrest– are also strengths. Discord is a sign of progress afoot; unease is an indication that a society has let go of what it knows and is working out something better and new” asserted Justice O’Connor of the United Sttaes Supreme Court.
To some extent, the essence of the rule of law lies in its juxtaposition to the “rule of men.” This aphorism is not meant to express the utter absurdity that laws are capable of governing society without the help of men and women. Rather, it seeks to state the following basic principles: that all state power ought to be exercised under the authority of law, and that there should be rules of law governing the election and appointment of those who make and execute policy, as well as the manner in which such policies are made and executed, in order to ensure rationality and fairness in the decision making process. Contrast this state of affairs to a regime of caprice or arbitrariness in which acts or omissions are traceable to the whims of the particular man or woman in power at a given time. The rule of law connotes the use of state power, through rules of law (agreed by the people) for the establishment of an economic and social system via constitutionally sanctioned representative institutions or other acceptable surrogates.
Typically the division and regulation of state power is established through the national constitution. In this sense, a national constitution is a charter of government. It is a body of fundamental principles by which a society organizes a government for itself, defines and limits the powers of the government, and regulates the relations between several government organs inter se and defines the relations of the state with its citizens. The rule of law implies a measure of predictability in the conduct of state officials by the prior existence of a basic law covering the subject-matter that falls within their fields of operation. It demands the precise definition of the roles and status of such public officials by law. It commends the creation of control devices to ensure that public officials abide by these norms, and if they do not, their actions are rendered invalid. It embraces procedural guarantees necessary to assure fairness in the adjudication of disputes and the application of sanctions. It demands equality of treatment before the law of all persons in the application of a general rule to all cases where, according to its content, the rule should be applied. Unifying all elements of the juridical quest for legitimacy are the demands for the existence of legal barriers to governmental arbitrariness, which can be defined as the absence of legal authority for acts done, and the demand for some procedural safeguards, especially during the trials of individuals alleged to be in conflict with the law. It means that the government, in all its actions, is bound by rules fixed and pronounced beforehand. This make it possible to foresee with certainty how an authority will use its coercive power in any given circumstances, and thereby allow an individual to plan his or her affairs on the basis of this knowledge.
The aim of the rule of law is to limit and check the arbitrary, oppressive, and despotic tendencies of power, and to ensure the equal treatment and protection of all citizens irrespective of race, tribe, class, status, religion, place of origin, or political persuasion. It implies a legal framework that is fair, impartial (particularly in regard to human rights, public security and safety), and that legitimizes state actions. Authority is legitimate if there is an established legal and institutional framework, and if decisions are taken in accordance with the accepted institutional criteria, processes, and procedures.
In every country a national constitution articulates the vision of the society, defines the fundamental principles by which the country is organized, and distributes power within it, and plays an important role in nation-building and consolidating the nation state. The idea of a constitutional democratic government, or constitutionalism, connotes a government defined, regulated and limited by a constitution. Constitutional democracy is founded upon the notion of checks and balances, namely state institutions: the legislature, the judiciary, and the executive-while operating independently of one another, act to check each other’s operations and balance each other’s power. In essence, all three institutions are duty bound to uphold the rule of law. If a government constituted by a written constitution can only have such powers as are granted by its constituent instrument, then we must accept, as a practical consequence, that the constitution, in granting powers, can also, and must by necessary implication, limit them. In other words the constitution is something antecedent to government and connotes a system of fundamental principles according to which a nation or state is governed. In this sense, a constitution embraces not only a framework of government, but also the relations of the government to the individuals that comprise the nation or state.
The rule of law is enforced by the judiciary. That means we have to have an independent judiciary, and this entails judges who can make decisions independent of the direction in which the political winds are blowing. The judiciary in accordance with the constitution and the nature of its functions is the one and one government agency that is called upon to protect human rights and advance the rule of law, accountability and transparency in government and the criminal justice system. The rule of law is effective when it is impartially and effectively applied. Court decisions have to be obeyed without question. A government operating under a written constitution has no more power that is granted to it by the constitution, either expressly or by necessary implication.
The mark of good governance consists above all else, in its effect in nurturing the best qualities in the people. The best form of government is that which tends to foster in the people initiative and inventiveness and the steady improvement in their overall intellectual and moral qualities, since on these depends in turn the success of the government in maintaining and promoting economic development and the well-being of the society. It is the good qualities of the people that supply the moving force that operates the machinery of the government. .
Judged by these criteria then, a government of absolute or unlimited power is intrinsically bad, being inherently incapable of nurturing and promoting the best qualities in the people. Its inherent effect, not merely its natural tendency, is to create indifference, discord, apathy, and passivity in the people. These negative qualities are necessarily “implied” in the very idea of absolute power and result inevitably from the lack of public participation in governance. An absolute government creates other evil propensities among the people. First it divides rather than unites. A still worse evil is the capacity of absolute power to corrupt. The famous saying by Lord Acton that “power corrupts and absolute power corrupts absolutely” represents a universal truth, founded upon universal experience.
This universal truth applies to Zambia. Repression of individual liberty is inseparable from a dictatorship. In a dictatorship, all expressions of opinion, all associations, and all political activities, critical of its rule, are viewed as hostile to the interests of the state and dangerous to its security, and must therefore be repressed. A dictatorship does not depend on popular support for legitimacy. It supplants popular support with the captures the state. The capture of the state is characterized by a patronage driven system in which a small ruling elite, political associates, legislators and public servants are provided with jobs in return for loyalty and obedience regardless of their performance and qualifications.
The rule of law can only operate where there is a clear commitment by leaders to operate within the law in both public and private interests. Parliament, the police and the executive must obey court rulings. Where the rule of law applies no one is above the constitution; not the President, not Parliament, or the Executive. Every government action, law or policy must conform to the constitution. The Julius Nyerere at the height of public demands for the punishment of soldiers who had mutinied against his government in 1964 is called for here. Resisting the public call for retribution against the soldiers without due process Nyerere famously stated: “To interfere with the courts’ decision would be to do exactly the things for which the nation condemned the soldiers.-to abrogate the law. The rule of law is the basis on which rests the freedom and equality of our citizens. It must remain the foundation of our state. We must not allow even our disgust with the mutineers to overcome our principles.” The country of our dreams should be a country that is known for unity, liberty, tolerance, and rule of law. It should be a country where the citizens and not the politicians are sovereign.
The Author, Muna Ndulo is a Professor at Cornell Law School;
Honorary Professor of Law, University of Cape Town and Free State University South Africa; and,
Director, Cornell Institute for African Development)
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49 Responses to Professor Muna Ndulo speaks on Rule of Law in Zambia today
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i like this from us as zambian we are and will be that is why we are for the best
bharat - February 2, 2013
05:03
This government has done more DAMAGE in a very short time( 1 year and a few months) compared to that by Super Ken in 27 years.
What will become of this country by the time these Pathetic characters complete their five year term??
Zambia will by then be DEAD AND BURIED!!
Zambia Today - February 1, 2013
15:07
Sakeni: polofesa is BITTER!
Yovulavula - January 31, 2013
03:31
Iwe Wanzelu;Prof chirwa is not a lawyer by profession.That chap is an Engineer. So how does an Engineer advise the President on the issues concerning the Rule of Law? Infact,this Chirwa is here ukubelamina akapoto for plot ONE in 2016.They guy is a political opportunist/chancer.The chap has never been partriotic zambian at all.That is why he went away for so many years and even applied for dual citizenship-(British/zambian).After having been away from zambia for so many years, the chap came back to zambia to strike his luck.I rest my case.
The Eyes of an eagle up in the sky. - January 31, 2013
03:10
The thing is that Zambians read and do not understand. because Prof. ndulo is in another part of the world does not mean he should not care about what is happening in Zambia. This man is a Zambian and has the right to speak out against the ills of society. It is up to us to read and take it or leave it. We need to have a rule of law and this paper puts the definition very well. let him who have ears to hear, hear. our so called elites in Zambia ar etoo paralyzed with fear to write anything.
Moonsa - January 30, 2013
19:48
Where is prof Chirwa? He is supposed to give advice to Sata and his stooges.
Wanzelu - January 30, 2013
19:48
The problem we have is that, such articles are only in the domain of the so called ellitist who are themselves self centred. i would have loved a situation where such professors give presntations to colleges and universities in our country. This would be the best way of planting seed of responsibility in the young generation. The current crop of government leaders seem not well mature in this field though it is supporsed to be the field of their expertise. You are talking of a head of a country who does not seem to care at all regarding the freedoms being propounded by the professor in his article. Do we blame him, No, because he is as naive, all he wanted was power to control financial resources of the country. The suggestion is, let’s have well layed out programmes where such issues will be tabled in government learning institutions to start with.
UBWAFYA - January 30, 2013
16:22
Very good comment…the article is very good too/
Horodugu - January 30, 2013
18:14
Give such lectures to colleges/universities? I agree only for the fact that this is where you find very dull chaps who are no better than ngwangwazis who easily get fooled even by idiotic minds and they overwhelmingly subscribe to building castles in the air within 90 nights!
chipasa 'inge' - January 31, 2013
19:05
This government will NOT ALLOW any such discussions as they see THREAT(s) to their rule in everyone apart from themselves.
This is now a POLICE STATE – Just see how they are using the police service to victimize their opponents!!!
Zambia Today - February 1, 2013
15:11
Would that he were this vocal when he was Law School Dean at the height of Kaunda’s dictatorship!
Now that he is in USA, he can talk!
Shame.
THE SAINT - January 30, 2013
15:53
The Prof. has a valid point. Its dictators who PREVENT others from discussing sense.
Yes, he is in USA and there is freedom there.
Can you imagine what would happen if one of the professors at UNZA wrote the above? The SHU-SHU-SHU would be after him within minutes, threatening him etc. probably even black-listing him. That is what is WRONG!!
Zambia Today - February 1, 2013
15:17
Ndulo spoke against KK as a lawyer. You are a small boy so you do not remember that Ndulo wrote the university column in the Times and was a big critic of KK. He even resigned from a post KK gave him. Don’t talk things you do not know.
Banda - February 1, 2013
15:22
Profound article Professor Muna Ndulo. Enjoyed every piece of it, excellent.
PF wake up from your sleep, this country is in reverse gear.
We tired of this bogus party, nothing to offer the Zambia people. PF is the worst party to rule so far in the history of Zambia.
Kay Love - January 30, 2013
15:28
The problem is that state house has robbed all other state institutions of their powers and reduce them to mere observers at best or rendered them totally impotent!
CRAZY HORSE & SITTING BULL - January 30, 2013
15:02
Democracy can i deed be difficult to explain to the general punlick how ever our zambian democracy can be missunderstood democray must grow from infancy it takes time starting from those in power and to every citizen to some democracy is to hate those in power.insult .brake laws and not questioned at all hate the police prisons to close to offenders politicians are enemies hate any one who doesnt agree with you you are the only one to rule
nshilimubemba - January 30, 2013
15:00
Sata cant understand anything from this well thought out article. Only at Obama’s level.,.
Isaac c.t chali jr - January 30, 2013
14:18
PROF.THANKS FOR BEING OBJECTIVE!
NORSTRADAMUS - January 30, 2013
13:58
This is what the majority zambians voted for, even after we were warned several times. we ignored the warning because the PF told us what we wanted to hear. Next time lets take time to analyse what we are told before decisions are made. Lets start thinking ahead for 2016 take time to know the person you want to give responsibility of the country. Zambia is a blessed country but these old fashoned politicians dont want us to develop freely.
staycool - January 30, 2013
12:47
I wonder what other so-called Professors in Zambia are doing since we don’t hear of their intellectual input into the society they form part of.
Chiko - January 30, 2013
10:46
Tizaona mwamuna
Temwaniz - January 30, 2013
10:33
Tizakhuwona
Temwani Zulu - January 30, 2013
10:32
Some comments above add value to Professor’s short discourse. The article is very educative, but it is being addressed to the initiated. The people who usurp power through the ballot by taking advantage of the hungry, the poor, the uneducated masses, they temselves being so uneducated and ill-qualified, those are the people who should be reading this article (if they could understand it). Also the circulation of the article – online – is limited to those who already empowered. I commend the article and I espouse the contribution of Charlie Diaspora. The LAZ is taking government to court over the use (mis) of POA. I suggest they consider to adjoin the police who blindly follow orders. The cheek of Lungu to “allow” UPND to hold a rally!!!
Le Sage - January 30, 2013
10:22
DON’T YOU GET IT,THE LEADERS WE HAVE IN POWER DON’T GIVE A RAT’S ASS ABOUT THE REST OF THE ZAMBIAN MASSES EXCEPT FOR THEIR AIDS FILLED BODIES,CHILDREN WHO ARE PORNOGRAPHIC STARS AND ONLY COME TO US WHEN THEY NEED OUR VOTES
S.M.M - January 30, 2013
09:55
well spoken Prof..we are so gratefull wish ukwa’s govt could heed to this..we need the brains of you guys back home..we are lost..!
blacky - January 30, 2013
09:44
Prof Ndulo is an armchair critic. Why doesn’t he come and take part in National development?
Akanama Kalowa - January 30, 2013
09:38
You who are in Zambia, what are you doing? Our so called educated people cannot even write or criticize the government. distance does not mean anything. You can write about your government where ever you are, that does not make Ndulo any less a Zambian
Moonsa - January 30, 2013
19:49
True Moonsa. And if Zambians like Akanama kalowa don’t change their attitudes, we are bound for much greater troubles. What affects a Zambian in Zambia affects a Zambian anywhere else.
Israel - January 31, 2013
07:34
Thanks Prof Ndulo. We need fair play and free partispation in our country, for all. Lets stand up for what is rightfully ours. abash oppression dictorship in this era.
Juan Muntu munyama Ndhahu. - January 30, 2013
09:38
weather they want to bury their heads in the sand, and pretend all is well. Things have gone from bad to worse and soon to the worst. respect us, we are all ZAMBIANS. Bravo Prof Ndulo
Juan Muntu munyama Ndhahu. - January 30, 2013
09:29
Nice Piece Professor Muna Ndulo!!
Professor, the current head of State, Sata, is principally responsible for the breakdown of the rule of law in Zambia.
He seems not to value the rule of law. His behaviour vis-à-vis the Zambian Constitution leaves much to be desired.
Therefore, PF political cadres have ‘freedom’ to defy other people’s liberties because that is what their leader is doing as well. If we had a head of State who values the rule of law, the current ‘nonsense’ that is taking place wouldn’t be part of our society.
For example, in spite of the supremacy of the Constitution, several times he violated it with impunity:
1. He illegally transferred the Road Development Agency (RDA) to State House;
2. He started the construction of his retirement home at a cost of K1.4 billion while he is a sitting president;
3. Instead of nominating 8 Members of Parliament (MPs) he nominated 10;
4. He bullied the country’s Anti-Corruption Commission (ACC) to get permission from him before investigating party or government officials; and
5. Appointment of relatives, region mates and political cadres in public offices – a clear violation of the Constitution and therefore a violation of his oath of office as head of State.
Every time he flouts the Constitution he stubbornly maintains his action in the face of reasonable and unanswered constitutional objections.
If the head of State can violate the rule of law – what will stop his followers from doing the same?
Surely, all leaders who aspire for the presidency should know that the Constitution is the final word of authority. Thus, there is nothing that can compete the Constitution. It must be followed in all national matters as there is no other path. The Constitution is not something to be followed at one’s whims and fancy.
Sata has serious challenges with being a law abiding citizen an attribute that comes from being well grounded in transcendent values.
No one is saying Sata should be perfect. Obviously not, as no one is perfect. But the characteristic patterns of his life are not in line with the Constitution and standards of a president in a democratic society.
How does one explain his lack of respect for the Constitution, the supreme law of the Republic of Zambia? He ignores the Constitution for self-seeking ends.
Today, we all have a reason to be concerned about constitutionalism and its preservation because the current leadership thinks it is above the Constitution.
Sata as President, supposed to be the supreme upholder and guardian of the Constitution, its servant not its violator.
Like all citizens, Sata is required to obey each and every one of the guidelines of the Constitution. No-one in this country is above the Constitution. Everyone is subject to the Constitution.
By allowing Sata to violate the Constitution at the most basic and fundamental level makes it easy for his followers to do the same!
As citizens, we are the conscience of our society. Let us wake up and come up with processes for holding Sata accountable.
It is painfully true that, even when Sata is violating the Constitution, there appears to be a sizeable section of our country that seems fine with his unconstitutional behaviour. They unceasingly and senselessly defend and praise his unconstitutional activities.
The Zambian people need to quickly face reality: Sata’s administration has assumed king-like powers and they will continue to crush the rule of the law.
Unless we want to trash the rule of law and turn our country over to some kind of oligarchic form of government, no leader, not even Sata should be allowed to be above the law.
Remember that Sata on September 23, 2011 took an oath to support, protect, and defend the Constitution. His conscious violation of that oath must never be tolerated by the Zambian people.
Every individual who avows to be a Zambian citizen should be brave enough to defend the Constitution at all times from leaders who violate it for selfish reasons.
Twalumba ba Professor Muna Ndulo kumalembe aya!
Given Mutinta - January 30, 2013
09:28
I like your comment! In short, a fish rots from the head down. When an state fails, it is the leadership that is the root cause.
Just before the 2008 elections, the first Republican President Kenneth Kaunda in reference to Chimbwi No Plan by then opposition leader said, “I know him very well; he cannot do well as president because he is not presidential material at all.”
Failure to understand what Kaunda meant we called him all sorts of disgraceful names.
Barely two years in power, Chimbwi No Plan has allowed his true colours to run free and he is shattering the rule of law.
I do not support PF’s violation of the rule of law, but I want the people to suffer so that they can learn a lesson to be able to vote with their heads not with their stomachs and tribes. Prof., they will be no rule of law because Chimbwi No Plan lacks the basic presidential values to uphold the rule of law you are talking about.
With Chimbwi No Plan in power, anarchy has come to stay if we do not do anything to remedy the situation.
Barotseland Royalist - January 30, 2013
10:39
Can PF (Paya Fyonse) leadership understand what has been written by the Prof? In the short run Paya Fyonse will continue killing everything that has a smell of democracy. Animal Farm scenario! The best way forward is to go the Egypt Formula = Mapatizya Formula. Good day Prof.
The Servant - January 30, 2013
08:53
Brilliant article Prof. Unfortunately most learned Zambians choose the status quo and the rulling govt takes advantage of this laise faire attitude, this coupled with high poverty levels and the quest to be like the bazungus (colonialism) has resulted in curtailing of these freedoms. We need a holistic change of our value structure to realize real freedom.
Change Agent - January 30, 2013
08:52
the legal minds have talked i think the other legal minds have heard. please advise the govt accordingly before the worst engulfs zambia. viva fearless lawyers.
The Great Intellectual - January 30, 2013
08:33
Well Spoken, George Chellah must do his job and translate this to Sata.
Fwaku FIlwafye - January 30, 2013
08:33
This is a highly refined clariffying article of all. It gives a full depth and widith of the rule of law and all the ingridients that go with it. Bravo Prof!
MAN ON THE TERRACES - January 30, 2013
08:10
Well said and very precise. I however miss the contextualisation of rule of law in the ethical framework of societies i.e. values. Seen back-to-front the laws of a country generally reflect the values of the day in that same country; a constitution that is open to usurpation of power by a dictator through the ballot is moribund. Hitler wove his way to the top because the Weimar situation was untenable, General Al Haig burnt his fingers when he sought to take charge after Reagan was shot – that’s a reflection of rule of law and of course the values upon which America is governed. More recently Obama can’t just close Guantanamo or FORCE the banishment of private arsenals – that PROCESS is governed( ruled ) by the laws of the land and nobody is above that, not even the organs of government.That the colonial POA still exists 50 years after independence is the smoking gun in the hand of ALL governments and parliamentarians that we have ahd in that time in Zambia – WHY was that junk NEVER removed? No prizes for that one – our values?
charlie diaspora - January 30, 2013
08:01
We have no option but to fight for our freedom.if it means getting independence,let us get it.
sipowasipo - January 30, 2013
07:56
Ndiye ma Professor Yaba. Knowladge is power.
NgomaZakwathu - January 30, 2013
07:55
We are under a Modern-Day Pharaoh of Zambia
In between this regime instituted “chaos and fear” campaign there is momentum of critical mass build up for self emancipation. If the Tunisian revolution was sparked by the self-immolation of a poor fruit vendor, Zambia’s natural disdain for despotism, kleptocracy and dangerous incompetency has sufficient room for a genesis of civil disobedience.
Sometimes you have to go back into the past to understand the present. While we are all riveted to the sadistic images and insanity coming out of this reversal politic, there is a larger and very significant change from traditional passivity happening right now that begs to be put into a larger context. It escalates public disapproval of current dangerous incompetency in our land — quite literally — a historic and earth-shattering event is possible at the hand of a fatigued over abused mass population.
Senior Citizen - January 30, 2013
07:45
@Senior citizen, I thot i was the only one thinking like what u’ve just said.
Fwaku FIlwafye - January 30, 2013
08:40
WOW! This is one of the greatest articles I have seen on ZWD! Prof you are the best, God bless you
Trevor - January 30, 2013
07:31
I wish this article had been done when I was doing Constitutional and Administrative Law. I seek the influence of Montenquieu and Locke! Students, print this article and you will pass your assignment! But beware of plagiarism and give credit to the good professor.
Zed P atriot - February 1, 2013
19:35
Who is going to un tie the lion? This is the question now and all Zambians need to get involved in removing PF govt come 2016. They are lion now. This should not be left to opposition politicians, Churches and professors. Any one that can talk, this is the time. Discussions should start from our homes, in churches, in the streets, in market places, in Universities etc. How do we un tie the lion in 2016.
Monze - January 30, 2013
07:27
May be the lion is not even tied? We are just dead scared for nothing!
Mubanga - January 30, 2013
10:18
Professor Ndulo,
You have delivered it with sanctity and unmatched clarity.
Senior Citizen - January 30, 2013
07:25
Prof Ndula and Prof Hansugule: Show us the way. Lets have more learned pople speak on this situation and build some resistance to what is going on in this country. We need strong civil society voices (as individuals or groups) to protect us from what is going on. Where are the other professors?
Boer - January 30, 2013
07:24
The other professors are busy enjoying benefits from bayama government.
Anyaprawo - January 30, 2013
08:15