THE RULE OF LAW - DOCTRINE

 Introduction
 The concept of rule of law
 Ruleof law – Diceys &lord Edward concept
 Rule of law – Kenyan constitution
Rule of law by the constitution
Introduction/concept

It is a cardinal principle in the operation of AL. It provides that matters of governance

should be based on the established laws and principles but not on the personal whims
of the governors. It provides the starndards against which official action is accessed. It
has its origin in the french phrase la principe de legalite. This refers to governance
based on law and not of men. Lord Edward Coke is said to be the orinator in concept
when he declared that the king must be under God and Law.
Meaning- (also known as nomocracy) is the legal principle that law should govern a
nation, Rule of law implies that every citizen is subject to the law, including law
makers themselves. In this sense, it stands in contrary to an autocracy, collective
leadership, dictatorship, or oligarchy where the rulers are held above the law (which is
not necessary by definition but which is typical).

The classic exposition of the principle of rule of law is to be found in the work of A.V
Dicey the title ”introduction to the study of the law of the constitution”

DICEY attributed the following three meanings to the said doctrine;-

• Supremacy of the law- The First meaning of the Rule of Law is that no man is
punishable or can lawfully be made to suffer in body or goods except for a distinct
breach of law established in the ordinary legal manner before the ordinary courts of
the land. “It implies that a man may be punished for a breach of law and cannot be
punished for anything else, no man can be punished except for a breach of law. An
alleged offence is required to be proved before the ordinary courts in accordance with
the ordinary procedure”.

• Equality before the law- The Second meaning of the Rule of Law is that no man is
above law. Every man whatever be his rank or condition is subject to the ordinary law
of the realm and amenable to the jurisdiction of the ordinary tribunals.
• Predominance of legal spirit- The Third meaning of the rule of law is that the
general principles of the constitution are the result of juridical decisions
determining file rights of private persons in particular cases brought before the Court.

Although the principle has different meaning, it is mainly understood to refer to 3

things in public administration that is:

• Legality

• Judicial independence

• Fairness.

a) legality

This aspect of the rule of law requires that everything must be done according to the
law. In relation to administrative law every gvt authority which does some act that
adversely affects the rights of a person must be able to justify that action as authorised
by law. This authorisation could either be express or discretionary.

Every gvt action must be legally sanctioned and any person aggrieved by such action
must have the right to go to court and have such action or omission invalidated if not
in line with the laws. It requires gvt action to be conducted within a framework of
recognised rules and principles and abhors(discourages) unlimited discretion. It would
apply in cases where the legislature appears to have given overwhelming
discretionary powers to a public authority. Rule of law seeks to strike a balance
between the need of fair and efficient administration and the need to protect citizens
from oppressive government.

The principle of legality is also applicable to criminal procedure and imposes a

number of obligations including the requirement that no one should be punished
except for some legally defined crime and the prohibition against retrospective
application of legislation. This principle prevents Government authorities or those in
Government from acting ultra vires.
b) Judicial independence

Disputes about the legality of gvt actions are to be decided by judges who are
independent of the executive. In the common law set up, dispute between citizens and
the gvt are resolved by ordinary courts.

c) Fairness

The rule of law requires that the law should be even handed between the citizens and
the government. It denies the government unnecessary privileges or excemptions from
ordinary law.

Incorporation of the Rule of Law by the (2010)Constitution

Express references in the constitution as regard the rule of law. The constitution
requires respect for the rule of law in numerous aspects in its preamble. It requires
respect for rule of law in numerous aspects in its preamble it recognises the
aspirations of all Kenyans for a government based on the rule of law: •

Read Articles 10,91, 131 (2)e), 156 (4)(a), 156 (6), 238 (2)(b), 259(1)(b)

Application of the doctrine

In England the doctrine of rule of law was applied in concrete cases, According to
Wade if a man is wrongful arrested by police he can file a suit for damages against
them as if the police were private individuals. Cases;- Wilkes v. Wood (1763) 19 It
was held that an action for damages of trespass was maintainable even if the action
complained of was taken in pursuance of the order of the minister.

IMPORTANCE OF DOCTRINE OF RULE OF LAW.

1. Constraints(limitations) on Government Powers

In a society governed by the rule of law, the government and its officials and agents
are subject to and held accountable under the law. Modern societies have developed
systems of checks and balances, both constitutional and institutional, to limit the reach
of excessive government power, and to subject the government power, or ruler, to
legal restraints

2. Absence of Corruption

The absence of corruption - conventionally defined as the use of public power for
private gain - is one of the hallmarks of a society governed by the rule of law, as
corruption is a manifestation (evidence or fact) of the extent to which government
officials abuse their power or fulfill their obligations under the law.

3. Open Government

Open government is essential to the rule of law. It involves engagement, access,

participation, and collaboration between the government and its citizens, and plays a
crucial role in the promotion of accountability.

4. Fundamental Rights

Under the rule of law, fundamental rights must be effectively guaranteed. A system of
positive law that fails to respect core human rights established under international law
is at best “rule by law”. Rule of law abiding societies should guarantee the rights
embodied in the Universal Declaration of Human Rights including the right to equal
treatment and the absence of discrimination; the right to life and security of the
person; the right to the due process of the law; the freedom of opinion and expression;
the freedom of belief and religion; the absence of any arbitrary interference of
privacy; the freedom of assembly and association; and the protection of fundamental
labor rights.

5. Human Security

Human security is one of the defining aspects of any rule of law society. Protecting
human security, mainly assuring the security of persons and property, is a
fundamental function of the state.

6. Regulatory(control) Enforcement

Public enforcement of government regulations is pervasive in modern societies as a

method to induce conduct. A critical feature of the rule of law is that such rules are
upheld and properly enforced by authorities, particularly because public enforcement
might raise the scope for negligence and abuse by officials pursuing their own
interest.

7. Civil Justice

In a rule of law society, ordinary people should be able to resolve their

grievances(wrongs) and obtain remedies in conformity with fundamental rights
through formal institutions of justice in a peaceful and effective manner, rather than
resorting to violence or self-help.

8. Criminal Justice

An effective criminal justice system is a key aspect of the rule of law, as it constitutes
the natural mechanism to redress grievances and bring action against individuals for
offenses against society.

9. Informal Justice

For many countries it is important to acknowledge the role played by traditional, or

‘informal’, systems of law including traditional, tribal, and religious courts, as well as
community-based systems in resolving disputes. These systems often play a large role
in cultures where formal legal institutions fail to provide effective remedies for large
segments of the population or when formal institutions are perceived as foreign,
corrupt, and ineffective.

The droit (right) of Administratif

droit administratif' is a body of rules which determines the organization and duties of
public administrations and which regulates the relation of administration with the
citizen of the states.

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