Murtaza Jaffer

In my corner of the bush, the term ‘rule of law’ is acquiring popular coinage. Like its predecessors, “human rights and democracy”, “corruption and good governance” and “transparency and accountability”, “rule of law” is now the new fashion phrase taken from a foreign language. I haven’t heard the term translated and used in more than a couple of the 140 odd local languages in daily use in the region.  Perhaps its mystique, power and appeal are locked in its un-translated foreignness. If we broke the pod its innards would spill out, spread away and the whole would lose meaning.

So we stay with the whole phrase – rule of law – with each one appreciating it according to her needs or as the occasion demands.

For the politicians threatened by new constitutional dispensations it is fair game to undermine the spirit of the new constitution by playing with its letters, rearranging them to give innovative meaning to constitutional provisions that will assist them survive the forthcoming elections without the necessary educational qualifications required of a new ‘Honourable Member of Parliament’. To the public it is a fundamental breach of the law – hence against the rule of law.

Parliament also wants to change the rules in the vetting of judges by an independent committee for suitability in office – a revolutionary proposal that has shaken many a judge’s hitherto untouchable thrones. Civil society groups have loudly voiced their opposition to these attempts at undermining the rule of law.

The Muslims in Tanzania, as has happened in Kenya, want to have the Kadhi’s Court enshrined in the new constitution currently under discussion. The Christians, secularists and others object. A constitution has no place for religious laws, some argue. Greco-Roman, Christian and African customs and Islamic Sharia are all sources of law in the country, others retort. Where do laws come from so that the rule of law can rule? Tight quandaries with foreign words, all these.

What then is the rule of law? Is it that the law rules? Who makes the laws? What if they are unjust? What if one law is against the other? Must we suffer laws until someone has the inclination and resources to go to court and have it interpreted? What if the courts are inefficient or do not work well?

Can we depend on the rule of law, especially in transitional situations, where all terms are open and discussions incomplete on the type of state the people can/will have? Can the rule of law hold forth before the larger philosophical underpinnings of governance and the nature of the state are settled? Can these be resolved outside the ever-changing global situation that often has more impact on governance change than local inputs?

In my neck of the woods we are living through pretty exciting times, throwing up all manner of so-called ‘foreign ideas’, attempting translations and publicly interrogating them, extracting their juices and often realizing that they taste the same as the other fruits with other names that exist in our own cultures, languages and societies. We are recognizing that despite our foreignness to the owners of the foreign words, we are actually all human all the time.  And so aluta continua as we discover new meanings and domesticate foreign terms and realize our common humanity.

The challenge however seems not to be with the rule of law but the lawful rulers of yesterday, oppressive and powerful, who want to continue to remain in office beyond their expiry dates.  

Can yesterday’s failures be tomorrow’s saviours?

How can the rule of law address this challenge?

Disclaimer: I write in my personal capacity and not as employee of the United Nations. The views expressed are entirely my own and should not be attributed to my employer.

Murtaza Jaffer

Murtaza Jaffer is a lawyer and human rights activist. He previously served as a Judge in Kenya and on the boards of several government, private sector and non-governmental bodies as well as inter-faith groups. Mr. Jaffer worked on human rights, judicial and organizational capacity building issues in a number of transitional and conflict countries in Africa, including Somalia and South Sudan.

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