THE RULE OF LAW – A COMMENTARY BY CHARLES WILKIN ON 15TH JANUARY 2014

From time immemorial there has been a distinction between the rule of law and the rule of man in the governance of nations. The rule of law applies where there is a democratic system for the making of laws, checks and balances on those who are elected or otherwise exercise power, an independent judicial system, accountability and transparency in public affairs, equality before the law and where no man is above the law. The rule of man applies where a man who is above the law governs and can make the law and/or apply it or control its application as he decides without effective recourse by the governed.

In ancient days the rule of man was the prevailing system with nations governed or controlled absolutely by kings, chiefs, emperors, dictators, demagogues or despots. But even in those days the rule of law applied in some forms. Three centuries before Christ the famous Greek philosopher Aristotle expressed a preference for the rule of law in these words “ the rule of law …is preferable to that of any individual” and “For in democracies where the laws are not supreme demagogues spring up”.

A century before Christ the famous Roman statesman Cicero did likewise saying “We are all servants of the law that we may be free”.

In modern days the rule of law is regarded as the norm. It is described as the bedrock of democracy and its effectiveness is usually a measure of economic development particularly in developing countries. The United Nations expounds in great measure on the rule of law and expects it from member states. But that is not always the case as many countries, while holding themselves out as constitutional democracies or while having the infrastructure for the rule of law, still (as Aristotle contemplated 2300 years ago) suffer from the rule of man.

Why is this? I preface my theory by saying that all men have good and bad qualities. My opinion is that despite the improvement in the human physical condition caused by advances in science and technology and education and despite greater political and social consciousness human nature basically remains the same; and despite the intervention of Christ man is still too often motivated by love of power, greed, hatred, arrogance, egotism and jealousy as opposed to the values which Christ preached of love, tolerance, forgiveness and humility. Their negative traits often override their good qualities and drive men in a quest for absolute power and dominance over their own people. And we know what Abraham Lincoln said on the subject:

“Nearly all men can stand adversity,
but if you want to test a man’s character, give him power”.

History is replete with examples of countries which have, due to the dominant traits of the leader, descended from the rule of law to the rule of man. And in nearly all of those cases persons within the country, driven by the same negative traits, have for personal gain supported the resulting tyranny.

It is instructive to look at South Africa under Mandela and Zimbabwe under Mugabe. Mandela and Mugabe were both freedom fighters for a just cause, both endured lengthy imprisonment for their cause, both triumphed over their oppressors and both were elected to the highest office of their country on a platform of reconciliation and equality. But there the similarity ends. Mandela applied his beliefs by forming a government of national unity with one of his former oppressors as his senior vice president. He established a Truth and Reconciliation Commission to promote forgiveness and healing. He began the fight to redress the economic imbalance created by the evil apartheid system. He sought no major personal gain, he readily admitted his own imperfections and was the epitome of humility. He served only one term as President and flatly refused a second. On the other hand shortly after taking power Mugabe turned on his own black people as well as the former white oppressors. 44 years later he is still in power at the age of 90 and not intent on leaving office soon. He has created extraordinary wealth for himself, his family and elite hangers-on while the vast majority of his people suffer untold hardship. Having begun as the freedom fighter he has become the oppressor.

President Obama hit the nail on the head at the memorial service for Mandela when he said………..

“There are too many leaders who claim solidarity with Madiba’s struggle for freedom, but do not tolerate dissent from their own people. And there are too many of us who stand on the sidelines, comfortable in complacency or cynicism when our voices must be heard.”

Well you may ask what about St.Kitts and Nevis. Does the rule of law apply here? We have a constitution which protects fundamental rights, we have an independent and accessible court system, we have an elected legislature and some checks and balances on the use of executive power. These are some essential features of the rule of law. Three of the main shortcomings are the woeful inadequacy of the checks and balances on executive power, our porous electoral laws and the lack of campaign finance legislation. By international standards we can on balance claim to have the rule of law. But this cannot be taken for granted. A constitution and laws do not alone guarantee the maintenance of the rule of law. As important are the attitudes of those in leadership and of the people to the constitution and laws and to each other. A people who do not respect the constitution and laws invite descent into the rule of man. A people who do not guard and exercise their rights stand vulnerable to lose them. So it is up to all of us citizens to determine whether we will maintain and improve the rule of law.

How then do we the people of St.Kitts and Nevis currently stand as a nation in our attitudes to the rule of law. Not very well I must say. A good reference point is the preamble to the constitution which is rarely publicly discussed. I assume that is because it is not controversial. The preamble is meant to express what we stand for as a nation. It says:

WHEREAS the People of Saint Christopher and Nevis –

(a) declare that the nation is established on the belief in Almighty God and the inherent dignity of each individual;
(b) assert that they are entitled to the protection of fundamental rights and freedoms;
(c) believe in the concept of true democracy with free and fair elections;
(d) desire the creation of a climate of economic wellbeing in the context of respect for law and order; and
(e) are committed to achieve their national objectives with a unity of purpose;………….

We declare that our nation is established on the belief in Almighty God but too many, on all sides, put political party above all else and regard their party leaders as superhuman. They in turn can never admit fault.

We declare that our nation is established on the belief in the inherent dignity of each individual but those of the opposite party are hogs and dogs.

We assert that we are entitled to the protection of fundamental rights and freedoms. Those rights include the right to political opinions but those with opposing opinions should not thrive.

We believe in the concept of true democracy with free and fair elections but many will do whatever they have to for the election of their party.

We are committed to achieve our national objectives with a unity of purpose but in practice there couldn’t be more disunity which clouds our national objectives.

Sad but true. After nearly 50 years of self rule and two generations of universally available secondary education we are still mired in the politics of the past. And it is getting worse. Because of its tribal political culture our country is again experiencing trauma. Constitutional norms are being sacrificed to political expediency. Self above country remains the order of the day.

We need as a nation a new paradigm of respect, tolerance, civility and maturity and a new political culture. We need as a people to practice what the preamble to our constitution says and foster and promote the rule of law. Our leaders should by their actions, as well as talk, lead the way in reaffirming the preamble and in following the letter and spirit of the constitution. Only then will there be a new and salutary phase of our history. Then too the likelihood of St.Kitts and Nevis descending into the rule of man will be reduced.