WHAT IS THE RULE OF LAW?

The rhetoric of what ought to be done. Put things to different people at

government leaders often bluntly, men are undeniably perhaps different times. One
contrasts sharply with the evil, barbaric, extremely simple formulation of the rule
sobering political reality.
discourteous and of law is the idea that society
inconsiderate. The world of should be ruled “by law not
war and peace, love and men”. Writing in 350 BC, the
hate, development and Greek philosopher Aristotle
destruction, poverty and declared that,
luxury, hope and despair, The rule of law is better
than the rule of any
social strife and inequality, individual2.
corruption and abuse of
power by those holding At perhaps its most basic
political and public offices level; the „rule of law‟ has
has increasingly elicited the been used to mean a system
desire to develop through in which the ruler-ship of a
Constantine Anotida
Chikumbu appropriate, fair and just state is based upon neutral,
affirmative action, probity in fair and just rules. A former
A utopia1 is by no means a the conduct of societal Chief Justice of Zimbabwe,
dead end in a common affairs. Such desire finds its Leon Baron, observed that:
pursuit for freedom, justice semblance philosophically, A society cannot claim
equality and elimination of to function within the’
in an ideology known as,
rule of law’ merely
all forms of domination and „the rule of law‟, the oasis of because its executive
oppression. Men however, acts are strictly in
an effective establishment,
accordance with the
do know what is wrong but enhancement and law.
know not what is right; men promotion of a sustainable,
however, do condemn just, free and democratic In the broadest terms, the
clamorously what is wrong society in which people „rule of law‟ implies that the
but applaud not what is enjoy prosperous, happy state only subject the
right. Satirically speaking, and fulfilling lives. However, citizenry to publicly
men know not at all even the „rule of law‟ is inherently promulgated laws, that the

subjective ideology used state adheres to

1
A utopia is an imagined society that possesses
differently in different 2
highly desirable or nearly perfect qualities for Aristotle (Francois-Marie Aroute). Politics,
its citizens. Utopia ideals often place on the contexts to mean different Book 3#3:16. n.b. This translation reads, "it is
precepts of morality, egalitarianism and non- more proper that law should govern than any
violence. one of the citizens".

1| The substance of justice is as much, if more, a question of political philosophy

as of jurisprudence. It is ultimately a question of perceptions of the relations
of human beings in society. Penner (1999)
 WHAT IS THE RULE OF LAW?

constitutionality3 and that no what the concept, purpose In the realm of legal theory,
one within the polity be and function of law is in any there is the natural law
above the law.4 given society. Although theory and the positivists
Nevertheless, even provided there is some philosophical view of the concept of law.
the rudimentary, all- disagreement about why we The natural law theory states
inclusiveness and have law, it is generally that law is coterminous with
comprehensiveness of what accepted that the main the edicts of morality, justice
the „rule of law‟ ought to be, purpose and function of law or fairness. Put bluntly, the
whenever and wherever „the is basically to administer theory purports that an unjust
rule of law‟ is examined, justice, to preserve peace law is no law at all.7
because the propriety of and order, to enforce
justice is determined by the morality and to limit the Contrary, the positivist theory
perceptions of the people extent of the powers of says law is law, whether it is
who dominate a given government. Thus, it is vital to just or unjust, fair or unfair is
society, the rhetoric of conflate the purpose, another issue. It argues that it
government leaders often function and the inherent is essentially the aspect of
contrasts sharply with the aspect of the „rule of law‟ enforceability by the state
sobering political reality. with modern liberal and that qualifies law into law.8
In the realm of legal theory it constitutional democracy The problems that however
has been aptly said that: dogmas.6 Although it is arise from these views are
The substance of justice widely believed the „rule of found in what is meant by
is as much, if more, a
question of political
law‟ and constitutional these so-called precepts of
philosophy as of democracies go hand-in- law. There is no generally
jurisprudence. It is
hand, closer scrutiny accepted view of what
ultimately a question of
perceptions of the however, reveals that exactly is meant by just or
relations of human
constitutionalism and fair laws. Thus, what may be
beings in society5.
democracy might not just and fair to Tom, Dick and
A first step in defining the always be in harmony, Harry may not be just and
„rule of law‟ is to examine resulting in a clash between fair to Sam, John and Peter.
3
‘Constitutionality’ is the condition of acting in the „rule of law‟ and
accordance with the rules and regulations
provided by an applicable constitution. These
constitutional democracy. 7
The Latin maxim ‘lex iniusta non
laws are enforceable by the state. est lex’ (an unjust law is no law at all) aptly
4
H. Hart (1992) The Concept of Law. Revised underscores the main idea of
edition. Oxford: Oxford University Press, pp. natural law.
6 8
167-8. L. Madhuku (2010) An Introduction to L. Madhuku (2010) An Introduction to
5
Penner (1999), p. 299. Zimbabwean. Zimbabwean.

2| The substance of justice is as much, if more, a question of political philosophy

as of jurisprudence. It is ultimately a question of perceptions of the relations
of human beings in society. Penner (1999)

Furthermore, the aspect of
enforceability by the state
may be compromised in
instances where the state
does not adhere to what is
enforceable by itself, where
the law is rubber-stamped
and is just a mere formality.
Therefore, one ought to note
that it is also the quality of
adherence that qualifies law
following enforceability by
the state and not
enforceability alone.
Over the course of the
twentieth century, the „rule
of law‟ emerged as one of
the deeply contested legal
doctrines. It has been
commonly defined as the
legal principles imposing
checks and balances on a
legal system as well as
limitations on government
authority.9 However,
compounding the difficulty
in defining the concept is the
fact that there has been no
consensus on what „the rule
of law‟ stands for, even
9
.Fritz Berolzheimer, The World's Legal
Philosophies ,
115–116
3|
WHAT IS THE RULE OF LAW?
though it is feasibly clear or who tries to define it
starts with the
perhaps obvious what it assumption that it is a
stands against. An good thing like justice or
courage.
invaluable dynamic of the
problem is that “the rule of According to the
law” is an “essentially International Commission of
contestable concept,” with Jurists10, „the term “rule of
both descriptive and law” implies that mere
prescriptive content over lawfulness is not enough and
which there is a widespread that the broader conception
lack of agreement. The „rule of justice embraces
of law‟ is indeed an significantly the aspect of
ambiguous expression which fundamental freedoms and
lacks a definition of general human rights.
application and thus, the
question of whether the rule One of the major compelling
of law exists or not is subject scholars acknowledged in
to heated debate. It is only the discussions of the
when there is consent on a concept of the rule of law is
universally applicable A.V Dice. According to him,
definition that the value of the rule of law means three
asking whether the rule of things. Firstly, the absolute
law exists in a particular supremacy of the law as
system bears worth. The rule opposed to the influence of
of law shares the same arbitrary power. In this
characteristics as the regard, the concept entails
principle of separation of that no person is punishable
powers in that it is a device except for the distinct
designated to guarantee breach of the law
society against the abuse of established in an orderly
power. De Smith notes that,
10
The concept has an The (ICJ) is an international civil rights non-
governmental organisation. It comprises of
interesting judges and academics whose mandate is to
characteristic. Everyone promote adherence to constitutionality and the
rule of law.
The substance of justice is as much, if more, a question of political philosophy
as of jurisprudence. It is ultimately a question of perceptions of the relations
of human beings in society. Penner (1999)
 WHAT IS THE RULE OF LAW?

manner by the jurisdiction of absolutely independent. the „rule of law‟. The doctrine
a court. Dice has this to say Judges in such instances works hand in glove with the
on this notion, may do whatever they want concept of the rule of law. It
Englishmen are ruled by the with the law and may has been traditionally
law and the law alone. Men
may with us be punished for
prejudice the lawful and accepted that the
nothing else.11 unlawful interests of their Constitution of any country is
appointers. the supreme of law of the
Secondly, Dice notes
state. It creates the arms of
equality before the law, that
According to D Smith, Dice‟s government and prescribes
is, no person is above the
ideas rooted in Whiggish safeguards against the
law and everybody is subject
Libertarianism13 were arbitrary use of state powers.
to the ordinary law and the
indiscriminately influential for This has been widely
jurisdiction of the court.
two generations, and now described as checks and
Thirdly, he notes a judge
lack contemporary balances of the arms of
made constitution, that is to
relevance thus they no governments or states. It is a
say the rights of people are
longer warrant any detailed basic tenet of
protected by ordinary courts
analysis. With this in mind, constitutionalism that a
and not necessarily
one can deduce that Dice‟s constitution is not simply a
guaranteed by the contains
conception of the rule of law collection of rules and
of a written constitution.12
is problematic as it vests all institutional arrangements
Dice advocates giving
the powers of making and regarding the use of state
judges more powers in
interpreting the law in power, but it is, in addition,
exercising discretion and
judges. about placing limits on that
depending upon the
power. It is the idea that
common law as opposed to
The doctrine of government should be
the supremacy of the written
constitutionalism can by no legally limited and that the
constitution. However,
means be left out when authority of government is
Dice‟s conception of the rule
discussing the concept of dependent on the
of law especially on the idea
enforcement of such
of judge made law may be
13 limitations against itself that
problematic in countries Whiggism is a historical political philosophy
that grew out of the parliamentary faction in
constitutes the rule of law.
where the judiciary is not the wars of the three kingdoms (1639-1651).
Whiggism embraces the idea of supremacy of
The principle says that a
parliament Libertarianism (from Latin: Libertas,
constitution not only
11
A.V. Dice, the Rule of Law, an Introduction to meaning freedom) is a collection of political
the Study of the Law of the Constitution, 188 philosophies and movements that uphold
12
Ibid. liberty as a core principle.

4| The substance of justice is as much, if more, a question of political philosophy

as of jurisprudence. It is ultimately a question of perceptions of the relations
of human beings in society. Penner (1999)
 WHAT IS THE RULE OF LAW?

describes but also restrains have personally tabulated a interests of any political
party or cause; or
government. Indeed, the use resignation letter amidst the violate the fundamental
of state power can be widespread unpopularity rights or freedoms of any
person.15
justified based on what the and public condemnation of
constitution stipulates but this his corrupt leadership and
The intervention of the
does not necessarily entail the execution of a
military in this case was by no
constitutionalism, provided parliamentary motion to
means meant to protect the
the constitution is remove him. Although the
nation‟s security or
unrestricted and actually resignation followed the
fundamental freedoms of
encroach on fundamental legal procedures of
the people but to prejudice
freedoms and human rights. impeachment in terms of
the interests of (ZANU PF), the
Constitutionalism also section 97 of the Constitution
revolutionary and liberation
signifies the idea of of Zimbabwe, the process
war party that had been
constitutionality or was massively militarized. The
marred by a notorious cabal.
adherence to rules set forth army invaded the Zimbabwe
The army thus did nothing
by a constitution. Thus, a Broadcasting Corporation
but eliminate the cabal to
conduct by the state that (ZBC), all Intelligence
impose its own pro-army
fails to adhere to laws Services bases and the State
leadership. This was
contained in a constitution House, a move that more or
afterwards justified by the
fails the test of less appeared to be a
fact that the Commander of
constitutionalism. military coup de tat
the Defense Forces General
A notable example of how subverting a constitutionally
Constantine Chiwenga16
the legislature, judiciary and elected president. This was in
who spearheaded the so-
the polity at large can clear contravention of
called coup was then
compromise the propriety of section 208 of the
appointed Vice President
constitutionalism was the Constitution of Zimbabwe
and many other military
removal of President Robert which clearly states that:
officials made cabinet
Mugabe14 from office in Neither the security
services nor any of their ministers after the ouster of
November 2017. The 94 year members may, in the President Mugabe. In these
old leader was reported to exercise of their
functions--act in a
partisan manner; further
15
Constitution of Zimbabwe, Amendment (No.
14
Robert Gabriel Mugabe was Zimbabwe’s first the interests of any 20) Act 2013.
16
black prime minister from 1980 to 1986. From Constantino Guvheya Chiwenga is the current
1987 he served as president for 30 years until political party or cause; vice-president of Zimbabwe. He is a retired
his ouster in November 2017 following a prejudice the lawful general of the Zimbabwe Defense Forces and
military coup de tat. liberation war veteran.

5| The substance of justice is as much, if more, a question of political philosophy

as of jurisprudence. It is ultimately a question of perceptions of the relations
of human beings in society. Penner (1999)
 WHAT IS THE RULE OF LAW?

circumstances, because of by law and that the subjects borne in mind that whenever
the absence of legal shall not be exposed to the a certain group of individuals
corrections and scrutiny of arbitrary will of the ruler. Thus, in a country or society are
legal action in our system, there should be no arbitrary above or are over protected
President Emerson exercise of power, there by the law there would be
Mnangagwa‟s17 government should be effective control „no rule of law‟ in that
was actually recognized. In over delegated legislation, country or society.
other words, the army had there should be an Thus, having this in mind, one
intervened to rebuke the independent judiciary, and can purport that there is no
factional battles of a political fundamental individual rights rule of law to talk of in
party which was totally should be safeguarded by Zimbabwe for example and
against the law. In this the ordinary law of the land. all other countries which give
regard, the army leaders sort This is to confirm that their presidents immunity
to gain from the fruits of everyone within a society from prosecution. The
participating in the coup should be treated and be Zimbabwean Constitution for
which in turn paid up. protected equally by the law instance states that while in
of the land and no one office the President is not
The rule of law is also should be placed above or liable to civil or criminal
coterminous with the idea of below the law. This can be proceedings in any court for
equality before the law and supported by section 2(2) of things done or omitted to be
equal protection before the the Constitution which states done in his or her personal
law “without any form of that the obligations imposed capacity.20This law over
selectiveness and by the Constitution are protects the President that
discrimination”.18 Wade and binding on every person, he or she can do whatever
Philips are of the opinion that natural or juristic, including deem necessary to him or
the rule of law means the the state and all the her to prejudice the interests
exercise of government executive, legislative and of his or her own political
powers shall be conditioned judicial institutions and cause while in the office. This
agencies of the government undermines equality before
17
Emerson Dambudzo Mnangagwa is serving as at every level, and must be the law which is one of the
the third and current president of Zimbabwe.
He assumed the presidency in November 2017
fulfilled by them.19 essential elements of the rule
following a military coup de tat that removed
Considering this, it can be of law. Section 98(1) of the
Robert Mugabe his longtime ally and
predecessor.
18 19
Article 7 of the Universal Declaration of Constitution of Zimbabwe Ammendment (No.
20
Human Rights. 20) Act- 2013. Ibid, Section 98(1)

6| The substance of justice is as much, if more, a question of political philosophy

as of jurisprudence. It is ultimately a question of perceptions of the relations
of human beings in society. Penner (1999)
 WHAT IS THE RULE OF LAW?

current Constitution of stated in the case of United it is a matter of degree in

Zimbabwe is thus running States v Nixon.23 It was a respect of each item that its
contrary to the provision of United States Supreme Court rules are prospective and
section 2(2) of the decision which resulted in a not retrospective, its rules are
constitution which places unanimous 8 to 0 ruling easy to comply with, and
everyone in Zimbabwe against President Richard that is, its rules are publicly
under the law. In 1894, the Nixon24. The court rejected promulgated. With this in
author Anatole France said Nixon‟s claim to an absolute mind, it can be asserted that
sarcastically, unqualified presidential there is no rule of law in most
In its majestic equality, privilege of immunity from countries and societies. This is
the law forbids rich and
poor alike to sleep
judicial process under all so because although the law
under bridges, beg in circumstances. It does not is promulgated very few
the streets, and steal
require much intelligence to people have access to it
loaves of bread.21
appreciate that this was a and some people do not
Where there is rule of law in a clear example of the even understand the law. For
country, the law binds even essence of the rule of law, instance, the Constitution of
the Sitting President. This can the absolute chlorophyll of Zimbabwe and other
be seen in the American equality before the law. subsidiary legislation are
case of Clinton v Jones.22 In Even the president is subject indiscriminately in English
this case it was stated that a to the law. language and not everyone
sitting president of the United can understand English with
States of America has no John Finnis is of the opinion some of the illiteracy rates
immunity from civil law that the rule of law is the we have. Apart from that, in
litigation against him or her name commonly given to most cases only people from
for acts done before taking the state of affairs in which a the nobility and bourgeoisie
office and unrelated to the legal system is in good class have access to legal
office. Apart from that, this shape.25 He notes that a education which they usually
proposition of law was also legal system exemplifies the develop and utilize to
rule of law to the extent that advance their interests at
21
(France, The Red Lily, Chapter VII
(http://www.onlineliterature.com/anatole- the expense of others.26 Thus
france/red-lily/8/). The original French is: La loi,
dans un grand souci d'égalité, interdit aux 23
418 US. 683 (1974) United States Supreme
the rule of law is very difficult
riches comme aux pauvres de coucher sous les Court.
24
ponts, de mendier dans les rues et de voler du Richard Milhous Nixon was the 37th President
26
pain. of the United States of America. He served Brian Tamanaha, Legal Studies Research
22
520 US.681 (1997) Supreme Court of United from 1969 until 1974. Paper Series Paper NO. 07-0082 September
25
States. Natural Law and Natural Rights, 2nded pg 270. 2007.

7| The substance of justice is as much, if more, a question of political philosophy

as of jurisprudence. It is ultimately a question of perceptions of the relations
of human beings in society. Penner (1999)

if not impossible to define
and even comply with.
The „rule of law‟ also raises
important and complex
issues concerning equality,
fairness, and justice. This is so
because the law shapes
politics, economics, history
and society in various ways
and serves as a mediator of
relations between people.
Nevertheless, the ends of
these are subject to
determination by „men‟. The
inefficiency that has marred
the delivery of justice
effectively in many societies
is solely the influence of men
on law. Men are running
away from the rule of law
rather than running towards
it. The prevalent political
mantra of who gets what,
when and how has
prompted many men to
manipulate the law to
prejudice their lawful and
unlawful political interests or
cause undermining the
essence of the whole ideal
of the concept of law. Law
indeed provides interesting
dynamics that explain
8|
WHAT IS THE RULE OF LAW?
society. Jonathan Swift Honorable Jonathan Moyo29
argues that, alleging that this would
'Laws are like cobwebs, undermine his dignity as
which may catch small
flies but let wasps and
minister. The Constitution of
hornets break through.'27 Zimbabwe gives legal power
to the Zimbabwe Anti-
Imperative to note is the
Corruption Commission the
notion that there is the
prerogative of undertaking
distinction between the „rule
investigations of corruption
of law‟ and the „rule of
cases and to expose abuse
man‟.28 The rule of law states
of public office. In a report
that the law should be
made by Goodson Nguni,
uniform, known in advance
the chair-person of (ZACC)
and applicable to all.
investigations, Professor
However, for present
Moyo amid furnished
purposes the rule of law can
substantial evidence was
amount to the rule of man if
alleged to have organized
the law can be changed
the making of a bank
unilaterally and arbitrarily.
transfer of Zimbabwe
The rule of law can amount
Manpower Development
to the rule of man if it is
Fund (ZIMDEF) that
largely ignored or if the ruler
misappropriated over US$400
and his associates
000. The Minister was
consistently remain above
supposed to be arrested but
the law. This idea can be
the matter was politicized.
exemplified by the fact that
The Commission was
some government officials in
threatened not to follow up
Zimbabwe prohibited the
at a recommended arrest
police from arresting
but to wait for a Presidential
instruction. This was
27
(France, The Red Lily, Chapter
unconstitutional since the
VII(http://www.onlineliterature.com/anatole-
france/red-lily/8/) 29
Professor Jonathan Moyo served in the
28
Diane P, Wood, “The Rule of Law in Times of
Stress,” 70 University of Chicago, Law Review, government of Zimbabwe as Minister of Higher
455, (2003). and Tertiary Education until 2017.
The substance of justice is as much, if more, a question of political philosophy
as of jurisprudence. It is ultimately a question of perceptions of the relations
of human beings in society. Penner (1999)
 WHAT IS THE RULE OF LAW?

Presidential immunity from Apart from the above, it is Nixon32 where it was argued
prosecution in Section 98 of also worth noting that where that the Supreme Court is
the Constitution is for the there is rule of law, each also subject to legal
President only. This can be decision by any court should correction when it construed
taken to be a clear violation be subject to legal a federal statute in a way
of the rule of law because correction.31 The courts of that was inconsistent with
the rule of law postulates law are in actual senses the the congressional
that everyone is under the oasis of civil effective legal sentiments33. Thus one can
law and should obey the justice and the last pillar of note that where there is the
law. Suffice to mention is that self-defense by a tormented rule of law, the decisions of
such an action takes away people. The fact that the the Supreme and High
the powers of the Zimbabwe Supreme Court and the Courts should be subject to
Anti- Corruption commission Constitutional Court in correction, perhaps by some
of directing the Zimbabwe and other many other experts of law in order
commissioner general of countries are the highest to promote the rule of law.
police to investigating cases courts of appeal and their
of suspected corruption and decisions bind everyone The rule of law is also the
to report to the commission violates the essence of the condition whereby judicial
on the results of any such rule of law. The judges of the discretion is restricted.34
investigation.30The prohibition Supreme Court and the According to Cicero
of the police to arrest the Constitutional Court may Men should be a mere
mouthpiece for the law
honorable minister clearly sometimes make mistakes as to express itself.35
indicates that there is no rule human beings and
Cicero argues that restricting
of law in this country misinterpret the law because
judicial discretion is a
because the government of this these highest Courts
officials are running contrary should be subject to legal necessary element to

to the provisions of the corrections in order to achieve freedom of the law.

Constitution which is the promote the rule of law. This

32
418 US. 683 (1974) United States Supreme
supreme law of the country can be cemented by the Court.
33
The United States Congress is the bicameral
and placing themselves case of United States v legislature of the federal government of the
USA. The congressional committees have
above the law and do as power to introduce legislation.
34
they wish. Mc Coubrey, Hilaire and White, Nigel
D.Textbook on Jurisprudence. Second Edition.
31
Mc Coubrey, Hilaire and White, Nigel Blackstone Press Limited. 1996.
30 35
Section 255(1)(e) of the Constitution of D.Textbook on Jurisprudence. Second Edition. Cicero on the Laws, BK, iii, in On The
Zimbabwe (No. 20) Act 2013. Blackstone Press Limited. 1996. Commonwealth and On The Laws 157.

9| The substance of justice is as much, if more, a question of political philosophy

as of jurisprudence. It is ultimately a question of perceptions of the relations
of human beings in society. Penner (1999)
 WHAT IS THE RULE OF LAW?

Because of this, one can say No one should be Zimbabwe when the
allowed to judge his or
that the idea of limiting her own cause.38
principle of the separation of
judicial discretion is powers is infringed from the
motivated primarily by the Having this in to onset by certain
desire to achieve the considerations, one can take constitutional provisions.
precepts of the rule of law. the example of Zimbabwe
Giving judges the discretion and assert that there is no The original understanding of
would be a clear violation of rule of law in Zimbabwe the rule of law includes
the principle of the because the president is substantive commitment to
separation of powers which given powers by the fundamental freedoms and
constitutes the essential Constitution to appoint human rights and their
elements of the rule of law. judges.39There is no doubt protection of the
that the judiciary which is fundamental human rights.41
In addition to the above, the said to be an independent Fundamental human rights
rule of law can also be said organ is not independent may include among other
to be where the judiciary is and hence it can always rule rights the right to vote, the
accorded independence in favor of the ruling party or right to a fair hearing and
and everyone has the the President. This notion can the right to demonstrate
opportunity to be heard in be buttressed by the idea peacefully. The right to a fair
the courts of law.36 The put forward by Brian trial entails that a litigant‟s
independence, impartiality Tamanaha that judges case should be heard and
and effectiveness of the individually and as a group be determined within a
courts are central to the rule must be committed to reasonable time of which
of law and democratic interpreting and applying failure to do so may
governance, and therefore the law to everyone prejudice the other party
their functioning should be including government particularly the plaintiff.
free from interference by the officials.40 Thus, based on the More so, everyone again
state or any other agency.37 above the rule of law is should be accorded the
John Finnis argues that, difficult to achieve in opportunity to a legal
representation regardless of
38
Legal Studies Research Paper Series Paper
his or her economic
36
J.S. Mill (1993) Utilitarianism, Liberty and NO.07-0082 September 2007
39 41
Representative Government. Section 180: Constitution of Zimbabwe, Magna Carta, the Rule of Law, and the Limits
London: Everyman Paperbacks. Amendment (No.20) Act- 2013. on Government, Jesus Fernandez-Villaverde,
37 40
Constitution of Zimbabwe Amendment Legal Studies Research Paper Series Paper University of Pensylvania, October 15, 2015.
(No.20) Act 2013. NO.07-0082 September 2007. ,

10 | The substance of justice is as much, if more, a question of political philosophy

as of jurisprudence. It is ultimately a question of perceptions of the relations
of human beings in society. Penner (1999)

background. To show that
there is the rule of law in a
country no one should be
deprived of any of the
fundamental human rights.
However, the fact that the
police in Zimbabwe for
example may sometimes
arrest or brutally suppress
those who would have
exercised their right to
demonstrate for instance the
former President of the
University of Zimbabwe
Students Representative
Council, (SRC) Tonderai
Dombo after he had lifted a
placard at the 2016 UZ
graduation ceremony
condemning unemployment
and government‟s failure to
create jobs for youths. This
was a clear violation of the
freedom to demonstrate
and petition thus running
contrary to the principle of
the rule of law. This has also
been the same with civil
society organizations that
have tried to push for
democratization and
constitutional reforms.
Revolutionary protest
11 |
as of jurisprudence. It is ultimately a question of perceptions of the relations
WHAT IS THE RULE OF LAW?
movements by organizations law pays attention to
like the National everyone‟s desires and
Constitutional Assembly interests regardless of race,
(NCA) led by Professor colour, tribe, place of birth,
Lovemore Madhuku have on ethnic or social origin,
several occasions been language, class, religious
brutally suppressed by the belief, or political affiliation
police and protesters beaten because nothing can be
and the leaders arrested. universally accepted in a
given society. A given
After a closer analysis of all conduct might be good, fair,
the views of the rule of law just, reasonable, moral and
advanced by several convenient to one and may
scholars and analysts above, be otherwise to another.
one can note that the term
rule of law wherever defined, The cows may indeed come
whenever defined, however home but only a few things
defined and whoever would crystalize. It is extra-
defines it, embraces a range ordinarily difficult if not
of socio-political elements impossible to have a
that are coterminous with universally applicable and
equality, liberty, justice and all-inclusive definition of the
fairness. These include rule of law in place. The
fundamental freedoms and phrase has become
human rights like the right to chameleon-like
a fair trial, the right to vote physiognomy taking
and the unlimited right to life; whatever shade of meaning
the principle of the best fits the author.
separation of powers so as to Discussion among theorists
limit the extent of the powers and scholars about what
of the government and the exactly is meant by the
elaborate principle of phrase „rule of law‟ are
constitutionalism. The rule of raven by disagreements over
The substance of justice is as much, if more, a question of political philosophy
of human beings in society. Penner (1999)
 WHAT IS THE RULE OF LAW?

what it means, its elements

or requirements, its benefits ABOUT THE AUTHOR

or limitations, whether or not

it is a universal good and
other complex questions. This
then therefore means that to
be consistent with the rule of
law, the law need not to
cover everything and what
the law covers should be
adhered to by the citizenry.
Constantine Anotida Chikumbu is
Thus confirming that the rule
a Masters Student and Research
of law is an ambiguous Associate at the University of
expression and may mean Zimbabwe in Harare. He can be
contacted at
different things for different constantinetida@gmail.com
writers and it depend on
what sense the phrase is
being used. Suffice to
mention is that the term „rule
of law‟ is among the
founding values and
principles in section 3 of the
Constitution of Zimbabwe
but there is no definition of
what it means. Politicians,
jurists, lawyers, analysts and
scholars of all backgrounds
beseech the rule of law as
both the means to an end
and an end in itself.

12 | The substance of justice is as much, if more, a question of political philosophy

as of jurisprudence. It is ultimately a question of perceptions of the relations
of human beings in society. Penner (1999)
 WHAT IS THE RULE OF LAW?

‘’In God and in Social Justice We Believe and Trust’’

"But what, after all, is a law? […] When I say that the
object of laws is always general, I mean that law
considers subjects en masse and actions in the
abstract, and never a particular person or action. […]
On this view, we at once see that it can no longer be
asked whose business it is to make laws, since they are
acts of the general will; nor whether the prince is
above the law, since he is a member of the State; nor
whether the law can be unjust, since no one is unjust to
himself; nor how we can be both free and subject to
the laws, since they are but registers of our wills."

Jean-Jacques Rousseau, The Social Contract, II, 6.

‘’MSL is a possibility’’

13 | The substance of justice is as much, if more, a question of political philosophy

as of jurisprudence. It is ultimately a question of perceptions of the relations
of human beings in society. Penner (1999)