Rule of law is vital for human security

Solly Rakgomo | Monday April 10, 2023 06:00

Another important but perhaps overlooked benefit of the rule of law is its substantial contribution to people centred national security. To begin with, what is the rule of law? The rule of law is both a principle and a process. In terms of principles, the rule of law is the idea that all people are treated equally under the law, regardless of who they are.

Thus, the rule of law is meant to contrast with rule by law, which is a mode of governing in which those in political power use the law to constrain the behaviour of others but not that of themselves. The rule of law is not just about security and justice officials enforcing the law, it is also about making the equality of everyone under the law a real, tangible thing.

In that sense, building the rule of law is an ongoing social and political process that involves the State including the security forces. However, it also involves citizens and hinges upon state officials forging relationships of trust and reciprocity with the citizens that they are intended to serve.

This could be based on relevant local, national, and international standards about rules, rights, and ways to seek redress for problems that one is experiencing. In other words, ensuring the equality of all under the law not only in principle but also in practice, is a core part of a government’s effort to establish and maintain a “social contract” with its citizens. It is important to note that countries with robust rule of law have laws and policies that are clear, well-known, and internally consistent. Cathrine Kelly says this is sometimes referred to in legal circles as “legal certainty.” She avers that this is the idea that you can anticipate what the consequences of any given behaviour might be as long as you understand what the law says.

In that sense, transparency about the law and how it is applied is an important part of the rule of law. Countries with robust rule of law have constitutions and legislation that offer the equal protection of freedoms and liberties for all citizens. Some African countries have ratified international conventions that affirm some of these principles. Other manifestations of the consequences of some of these principles of the rule of law are captured in definitions by the World Justice Project, the United Nations, Afrobarometer, and the Ibrahim Index of African Governance, although particularities of their definitions or ways of measuring the rule of law differ.

There are also continental or regional African commitments to consider. Many African countries have signed onto the African Charter on Human and People’s Rights. The African Charter on Democracy, Elections, and Governance also promotes rule of law principles like equality in the exercise of various freedoms and liberties.

Countries with robust rule of law systems have checks and balances between the Executive branch, the Legislature, and the Judiciary. This allows the Judiciary to function independently of what are often in Africa very strong Executive branches of government. That helps to ensure the equitable and consistent application of the law to everyone, whether they are in the government or someone who is outside of it. So, to sum up, the rule of law prevails when there is a widespread sense that everyone is subject to the rules, and there are practical mechanisms in place to ensure that the rules are applied. Leaders are subject to oversight by other leaders in various branches of government.

They are also subject to oversight by citizens who are not in government. People must also have sufficient access to justice to hold each other to account, and that requires a certain degree of fundamental freedoms and civil liberties that ensure that all citizens are working under the rule of law is not just about security and justice officials enforcing the law, it is also about making the equality of everyone under the law a real, tangible thing. This now leads us to the second question of why the rule of law matters for security sector effectiveness.

The short answer is because justice and the rule of law are vital for peace and stability, which is the security sector’s job to provide. Part of the foundation for peace and stability is a high level of trust between security actors and citizens. Mistrust of security forces can exist for many reasons. There are historical legacies of security force abuses, perceptions of institutional corruption, and frustration with slow responses to crimes in some cases. Security forces can do their jobs better when the people that they are meant to serve trust them.

Fostering popular confidence in the security sector through this kind of rule of law thus hinges upon building rights-respecting relationships with citizens, upon providing citizens human security, and upon enabling citizens to exercise their rights and express their views peacefully even if they disagree with the government. These are not always easy duties to fulfill, but there are major strategic benefits to the security sector operating in accordance with the rule of law both internally within defense institutions and externally in terms of their everyday interactions with ordinary citizens. Overall, more transparent, legitimate, and accountable security forces in the long run can help security services gain greater trust of the populace and can, in turn, address threats and challenges in more lasting and sustainable ways.

The rule of law and security were frequently at odds in the early post-independence period in many African states. In these contexts, the main kind of security that concerned leaders was that of the regime itself. The focus on regime security meant structuring the security and defense services to minimise the risk of coups and wielding coercive power against citizens to keep violent and peaceful challenges to authority in check. That is part of what can sometimes lead to popular distrust in the security services or in the State justice systems. Either or both can be an issue that lingers today, and the situation differs across countries.

More recently, African national security agendas have diversified. On the AU, regional, and national levels, there is a growing emphasis on citizen security, which hinges upon state security officials forging relationships with the populace based on legitimacy, transparency, and accountability. Through this lens, the rule of law matters for security in many ways, but two merit emphasis here. First, the rule of law shapes the drivers of some of the core threats that African states face.

Second, the rule of law influences the channels through which risk factors for insecurity can play out. In other words, the rule of law influences megatrends, which in turn influences security. To conclude, this article has touched on how the rule of law relates to human security, but there is also an important component of the rule of law that applies specifically to security sector governance, that is ensuring that the principle that nobody is above the law applies within security institutions, to all those who are interacting with citizens on behalf of the security forces, and that there are reliable mechanisms of oversight and accountability and reliable methods for building trust with the populace within the security sector so as to advance the social contract. Justice and the rule of law underpin the development and governance that is critical to realising security for all.