Relationship between rule of law and good governance

relationship between rule of law and good governance

'Rule of Law, Good Governance and Development Cooperation in Turbulent Times' sometimes arises between traditional law and and international law. Association Leiden and the European Law Students Association. Horizontal accountability and leaders, and among segments of government: In this paper I suggest that good governance, the rule of law, transparency, and New Directions for Evaluation, American Evaluation Association, no. 67 (Fall). American countries there is a medium level of socio-economic development and a medium degree of rule of law institutionalisatoion. This association between.

Democratic elections enable people to choose who will represent their views, interests, and concerns in legislatures and other public arenas. They also enable people to decide collectively who will govern them. This is reflected through and guided by deliberative democracy. In this regard, inclusive political participation is enshrined and democratic culture further enhanced. Central to democratic system is independent and representative institutions.

Government may set up independent institutions to protect rights, to regulate the public activities of private and state institutions, and to referee elections. However, they tend to be taken aback if they act too independently. This obviously is what is happening in most African countries, including Ethiopia. Institutions need to maintain their independence to a reasonable and realistic extent for democracy to endure.

These being said, democracy or democratic system serves as a building block for rule of law and good governance to be ensured and also enables the citizen to have a say on development plans and strategies through participatory procedures and transparent and accountable system. Good Governance The term good governance denotes two concepts: Thence, it is imperative to have a glimpse of discussion as to what constitutes governance.

The World Bank has identified three distinct aspects of governance: Normative analysis of State, cited in Gavin Williams. It further defines good governance in terms of its main features or characteristics; good governance is characterized by participation, transparency, accountability, rule of law, effectiveness, equity, etc.

In view of its context, good governance refers to the management of government in a manner that is essentially free of abuse and corruption, and with due regard for the rule of law From these definitions follows that governance is the administration of economic, social and political affairs of the country by a legitimate government within its delimited authority. Good governance is juxtaposed to bad governance or maladministration, and embraces a range of issues.

Good governance is defined as a process by which governments and people together identify shared values, needs and challenges, set priorities and develop programmes to address those needs and challenges and jointly manage the administration of those programmes and available resource, through transparent and accountable process with shared responsibilities and broad-based participation This requires a climate for rule of law, the existence of institutional checks and balances and full respect for human rights, with the expressed objective of maximizing equality of men and women for common good.

Stated other ways, good governance is proper and gender conscious, is legitimized by participatory process, undertakes anti-corruption efforts, is bureaucratically accountable, is efficient and effective in the use of resources, and promote active involvement of private sector and civil society to counteract vested rights Good governance, as Reif lists, numerous practices such as: Accessed on 10 September ,9: To ensure justice in its true sense minimum requirement is of good governance.

Bad governance is one of the prime and common reasons for sluggish economic development in developing countries. When inequality is very high or there is unfair distribution of wealth, rich people often control the political system and simply neglect poor mass people, forestalling broadly-based development World Bank Reports over the last decades have been proving the direct relationship between good governance and development and, also good governance provides a shelter for democracy and rule of law.

Good governance, as enshrined in the legislations and ensured in practice, is quintessential for holistic and sustainable development in any country, regardless of the economic, political and social structures of that country Reif, Building Democratic Institutions: A Cause or a Result? In most African countries experiencing bad governance, political crisis and fragility, economic development has shown very poor performance.

Rule of Law19 The principle of rule of law, in contradistinction to rule by men is an ancient one The Secretary General of the United States [] defines the rule of law as: A principle of governance in which all persons, institutions and entities are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.

At its core is the conviction that law provides the most secure means of protecting each citizen from the arbitrary will of every other. By being constrained to govern by means of general laws, the rulers of society cannot single out particular citizen for special treatment.

The law is to constitute a bulwark between governors and the governed, shielding the individual from hostile discrimination on the part of those with political power The doctrines most obvious application to constitutional theory is the requirement that the action of the executive, and those of every other civil authority or government official, should be justified in law. One may argue that countries such as China are economically developed, yet exhibit poor democracy and good governance.

'Rule of Law, Good Governance and Development Cooperation in Turbulent Times'

The point is then, can it be said that China is developed sustainably and holistically - the development which benefits its entire citizen with massive eradication of poverty? After all, does development confined to economic growth or it also encompass other aspects? This is a subject to be answered by developmental economists.

However, from its face value, development includes, in addition to economic growth, fair distribution of wealth, human development and cultural transformation. Allan, Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism, Cambridge Law Journal, 44 1, p.

Hayek, The Constitution of Libertyp. The principle of legality and ideal of rule of law requires that the nature and limits of official encroachment on the liberties of the citizen be clearly stated in advance of any action against him in the name of the state. In this way, the powers of the government are constrained in a manner which precludes arbitrariness on the part of government officials.

More precisely, the rule of law requires that governmental actions in relation to citizen be circumscribed by rules which limit the scope of official discretion The court should stand as a mediator between government and the citizen, to ensure that any statutory powers claimed by public officials are properly authorized, and that the citizen safely rely on the relevant statutory wording in formulating his plans and deciding on the scope of his liberties under the law.

The rule of law, to large extent, also presupposes separation of power if not personnel among branches of government. The threat to the rule of law is enhanced when delegation of extensive discretionary powers is coupled with statutory provisions which seek to limit, or extend, the possibility of judicial review Stated in a general term, rule of law is ensured when there is supremacy of constitution and other laws, arbitrary and discretionary power is defined and delimited, democratic decision making prevails, equality before the law is the rule and independent judiciary serves as a fountain of justice.

Rule of law strengthens democracy by ensuring that government operates only within rules adopted or sanctioned by parliament.

It is also obvious that when rule of law is the governing principle, then, follows good governance. It is also sound to state that rule of law is the basis of governance, democracy, good governance and all other virtues such as human rights protection. Because, if everything is done according to the [just] laws and rule of law prevails, there is no fertile ground for arbitrary decision and bad governance. Generally, there is a political consensus that democracy, rule of law and good governance are necessary foundation for efforts to achieve sustainable development.

For a planned but not spontaneous development to foster in a given country, rule of law serves as a bridle dictating economic policy making process and development plans, sustains the well functioning system and pacify broad-spectrum changes in society and eradicate extreme poverty and deprivation.

Reinforced by democracy and good governance, rule of law enhances sustainable development by bringing political, economic and social stability within the country, provided the government is committed towards that end. After s, the law and development movement is replaced by the Rule of Law project. Currently, International Community and Institutions are paying much attention to Democracy, Good Governance and Rule of Law as triumvirate concept for its tremendous role to ensure justice and streamline sustainable development.

It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision- making, legal certainty, avoidance of arbitrariness and procedural and legal 25 Louis-Alexandra Berg and Deval Desai, Overview on the Rule of Law and Sustainable Development for the Global Dialogue on Rule of Law and the post Development Agenda,p.

In this context, the rule of law contributes to sustainable human development as a system of regulation and justice.

The states have committed to international norms and standards, including to the principle of the rule of law itself. However, there is no clear theoretical foundation, which leads to a conclusion as to the causal relationship between Democracy, good governance and rule of law and development. Almost all International Donor Agencies and Institutions believe that the former is the foundation for the later while significant numbers of scholars are divided in their analysis The writer personally argue that the causal relationship works both way, but for reliable, holistic and sustainable development to be achieved, the prevalence of democracy, good governance and rule of law is a foundation.

The writer is mindful of the complex nature of the matter, carefully decided to take a stand based on his personal analysis and supporting his argument by prevailing contemporary discussions, though. As such, in addition to the foregoing discussions, approaching the issue from the right to development perspective is worth noting. The UN Declaration on the Right to Development34 succinctly elucidates the causal relationship between democracy, good governance and rule of law and development.

In its preamble it is recognized that the human person is the central subject of the development process and that development policy should therefore make the human being the main participant and beneficiary of development.

In turn, there is no abstract right to development and hence, to fully exercise the right to development, obstacles should be removed. Without participatory democracy, good governance and supremacy of rule of law; the right to development cannot be imagined.

The right to development is predicated up on democracy, good governance and rule of law-it requires conducive and enabling environment. Thus, ensuring democracy, good governance and rule of law is a precondition for the right to development to exist and serve both as the means and an end for sustainable development. On the one hand, there is a belief that democracy, good governance and rule of law facilitates the economic activities and it is a necessary precondition for economic growth.

Analysis of the law and practice 4. Democracy and Democratic Culture in Ethiopia Being one of the oldest states in the world 35, viewed from the perspectives of state formation, religious practice and trade relation, Ethiopia is supposed to be one of the countries where democracy and democratic culture attained its zenith. Nevertheless, democracy is still at its infant stage in Ethiopia owing to myriad of factors. One of those factors, indeed strong one, is poor democratic culture which made every efforts of democratization a futile work.

The conservative tradition, prolonged civil wars, lack of strong and independent institutions, ignorance, hierarchical social structure and repugnant culture, muzzling of civil societies, among others, are some of the reasons for poor democratic culture. The other factor for poor democratization is the political history. Virtually all rulers of Ethiopia, whether they are monarchical, military or some other forms of regime with distinct ideological back up, has had unstable political power founded up on volatile ground.

Due to this reason, leaders had no enthusiasm to rule democratically and let its citizen to exercise their democratic rights. In an attempt to maintain political power, at any cost, the leaders have neglected democratic values and development.

Thence, transition to democracy in Ethiopia is taking long and tortuous routes. The third factor is lack of independent and potent democratic institutions. For the long past, there have been no democratic institutions and if there were any, maintained no independence both institutionally structurally and functionally Freedom of the individual will not prevail unless Institutions, both formal and civil, are free to provide fora and facilitate the exercise of those freedoms by the individual Democratic institutions such as human rights commission, 35 Aljazeera, Country Profile: While functional independence relates to scope of power of each institution with the idea of minimizing power overlap and ensure efficient separation of power.

However, democratic institutions have already defying the very promise they are set for.

Good Governance and the Rule of Law | CSCE

Their independence is glaringly questionable. Both by structure and function, these institutions are practically discharging the political responsibilities assigned to them, with strong conviction that they represent the government as a political body. Even to the dismay of many, the Ethiopian Human right commission has been engaged in preparing the country report to human right committee. The commission may risk itself being too closely identified with the government 38and as such, blurred its independence.

relationship between rule of law and good governance

The same is true to other democratic institutions including the judiciary. It is the universal principle that judiciary should have special role in interpreting and safeguarding the democratic rights entrenched in the constitution. Unlike other democratic institutions, independence of judiciary is non-negotiable for the very reason that the ultimate and final forum to bring grievance and see justice being served is the courts of law.

Courts in Ethiopia lost their independence mainly due to high political intrusions from all directions. Specifically, when government interest is at stake, cases are already decided before it reaches proper trial due to political affiliation and fear of tenure insecurity The rhetoric which holds 37 S. Challenges and Prospects,p. However, by using exceptions and disguised laws as a loophole, the government has a full control over the function and administration of the judiciary in different ways.

To mention but a few mechanisms of controlling the judiciary system by the government are; political background check for appointment, periodic intervention in judicial functions, designed in-built system to control judges, non-meritorious evaluation and promotions.

Practical challenges are many in number and diverse in nature. All in all, courts are highly impartial, dependent and not living up to their promises, because of political intrusion and dictation, tenure insecurity41, economic dependence, serious corruption, and ethical problems lack of integrity. The role of civil societies cannot be overlooked at this juncture.

The institution of democracy rests on three major pillars: Civil society plays a critical role in independently reviewing the success and shortfalls in the implementation of programmes meant for the people and has the ability to channelize the people The role of civil societies to enhance democracy is also remarkable. There should be, however, positive and friendly relationship between the government and civil societies aimed at hastening democratization.

Every effort should be made to work for common objective and they need to work hard on the front. At the same time, it should be understood that the involvement of Civil Society in service provision is not intended to undermine the role of government, but rather to complement and improve government action and share their experience in solving development problems and advocating democracy.

Despite the fact that civil societies were, are and will tremendously contribute in the democratisation process, Ethiopian government is at a loggerhead with civil societies The Ethiopian government has long been hostile to independent NGOs, but in recent years its attitude has hardened. However, by broadly and arbitrarily interpreting exceptions and enactment of inconsistent laws, judicial independence lost its essence.

In the aftermath of the national election, conditions have dramatically and drastically changed which significantly limited the role of civil societies. This is mainly being done through enactment of pre-emptive legislations At the heart of such restrictive measure lies political centralization, the obsession of totalitarian power control. Any positive efforts of Civil Societies to empower citizens to exercise their democratic rights are considered a threat to the political system.

As the role of civil societies are dwindling, democratization process is obliterated. The climate for independent civil society organizations in Ethiopia has long inhospitable and the likely impact of this law is still more ominous when understood in a broader context Using the Charities and Societies proclamation as a tool to effectively repress human rights defenders, the government has made the contributions of Civil Societies in building democratic society practically impossible.

The fourth factor for poor democratic record in Ethiopia is symbolic commitment of the government. The government tirelessly adopts confusing and inconsistent policies and strategies, trying each on the citizen as a laboratory, introducing new one when the former fails and the viscous circle continues.

Without going into endless discussions, the writer only discusses developmental state in light of developmental democracy to see if developmental state ideology is in tune with democratic commitment of the country- Ethiopia. Is it possible to bring development and ensure democracy at the same time or, development first-democracy later?

According to government reports, the Country has come to enjoy the fastest improvement in the Human Development Index among the Least Developed Countries. Nothing is wrong with setting development plan at a national level and aspires to bring democracy but working towards that end is the most important and demanding thing. Developmental state, in simple terms, is a state that is and seeks to be a strong player in the economy of a nation with a view to enhancing economic development There are also varying definitions of developmental state, and for this reasons it is tenable to point out the features of developmental state.

The basic features of developmental state are provided in literatures as: Bolesta50 asserts that it seems justifiable to claim that a developmental state would be difficult to sustain in a fully democratic system in which people enjoy extensive political rights. With this ideology as an underlying tenet, the Ethiopian government claims that it has enthroned democracy and will continue to do the same. Uncharacteristically, the government frequently claims that it is protecting democratic rights and bringing the fastest economic growth in the World.

Every day, it is broadened and deepened by a wide variety of legal sources and a growing body of both state and non-state participants. It is a field where there is still a lot to do, and we do not yet fully understand how it affects national legal systems. In the years ahead The Netherlands will continue its efforts in this area. The Minister of Foreign Affairs and I have made this one of our key priorities of our policies.

But we need more than international declarations. In many countries, including some that have signed the international declarations and charters, traditional and religious law are also in force, and in practice, they are at least as relevant.

relationship between rule of law and good governance

Jan Michiel Otto, as professor of Law and Governance in Developing Countries, has done a lot of excellent work in this area. Traditional forms of law enjoy a great deal of popular support. The enforcement of tribal and traditional laws is often to the great disadvantage of women in developing countries. In part because such legal systems deny them the right to own and inherit property.

How can we promote universal standards in local law systems, and the enforcement thereof? But it is a difficult job, often not seen as credible. The mission statement of this Centre: The conviction that women's rights are an integral part of human rights is what drives the Center's work. We support an organisation that tries to prevent female genital mutilation. Female genital mutilation is a brutal violation of the right to physical integrity.

Should we continue supporting this organisation that cannot stop female genital mutilation, but tries minimize damage? It is a difficult moral question, but we will have to stand by the international standards of human rights. In Afghanistan, we try to look at ways to support the local legal system.

Does this support make the laws intrinsically legitimate? I do not think so: And of course we work on that. A number of human rights groups, for example, are working with international lawyers in some Islamic countries to modify marriage contracts within sharia law in order to strengthen the position of women. In a sense, the example of Mukhtar Mai, the victim of an honour punishment who fought for her rights in multiple legal systems, also reflects our aim to help those who seek justice, in whichever system.

I think this is an interesting approach. But a very difficult one. It was actually implemented by the man for whom this lecture is named, Cornelis van Vollenhoven. At a time when such a thing was unheard of, he tried to understand why the local law in the Dutch East Indies was the way it was.

relationship between rule of law and good governance

That is what we must do: At the same time, international justice is sought in many cases; this is the discussion on impunity. In this context I obviously cannot overlook the Dutch efforts to promote transitional justice in conflict areas. A good example of how both the local system and the international rule of law can be mutually enforced is Rwanda, with all its difficulties.

Immediately after the genocide, we supported the community-based courts known as gacaca. Another example is the Truth and Reconciliation Commission in South Africa, which addressed the injustices in the apartheid system. But we always have to keep our own standards in mind. The issue of a general amnesty such as under discussion in Afghanistan that lets everyone off the hook with one sweeping gesture, is a very difficult issue.

Criminal proceedings can sometimes help heal wounds; they give the public a sense that justice has been done. Righting the wrongs of the past is of great importance. And it might even have a preventive effect. We of course have always believed that criminals should be held accountable for their actions. As you will know, our country has a long tradition of hosting international criminal law institutions.

Our statement to the Ugandan Minister of Justice: In local and international courts, like in local and international laws, universal standards have to be met. The Netherlands recently supported a conference in Uganda on traditional transitional justice. Experts from the ICC and government and Acholi leaders talked about the possibilities to incorporate ICC-standards and methods in traditional concepts of accountability and reconciliation.

And many of the democracies we supported are illiberal democracies. I remember many, somewhat amateurish visits I made to parliaments in various places, from Benin to Zambia. I saw in practice how difficult it is to help build democracy in disadvantaged countries characterised by poverty and inequality.

Democracy can exacerbate conflict, but it can also bring about enormous progress. Copies of Western models can be extremely counterproductive for democratic change; and the irony is that our models are being exported at a time when our own democracies in Europe are under pressure and going through major changes.

We must also listen more to the voices in the poorest countries. Taking account of feedback from the poor automatically makes poverty reduction a highly political process. Development cooperation can encourage and support home-grown processes that will contribute to a world with less poverty and more justice. It needs to aim at increasing access to and participation in these processes by the people themselves.

A more political conception of governance and the deepening of democracy is needed. And that is the direction of much of my development policy. Poverty is not only an economic phenomenon but also a socio-cultural and a political one. Good governance has evolved from a precondition for development in many efforts of the past to more of an objective in itself. In the past decade, donors have focussed on those countries that met their standards for good governance.

Countries that are in the greatest need of poverty alleviation are then left behind.

Rule of law and good governance by N R Madhava Menon

In our policy we need to pay much more attention to these fragile states. But good governance in my view also relates to the question of accountability. And that calls for accountability. We ask the countries that receive our money to render account to us. Paradoxically, this might entail that the need to report to their own people becomes less of a priority.

In Tanzania, for example, The Netherlands spends twenty million euros a year on budget support. By definition, that money is not raised through local taxation, and the Tanzanian government does not have to account to its people f or the way it is spent.

In a way, it is the opposite of the American revolutionary slogan. This is not correct. Wherever we give development aid, especially budget support, I want us to automatically examine the role of local politics and the rule of law in development cooperation. In other words, development cooperation should never weaken national democratic institutions.

If it does so, we are not responsible donors. Because our aid is needed and domestic accountability still often falls short, I will focus on making local politicians accountable to their own peoples.

This will be taken up more in political dialogues and specific activities. We must have the courage to also support political parties, to parliaments, to civil society organisations, to the media, to the real checks and balances — and not leave strengthening the rule of law to others. But of course we have to it with modesty. I stressed the need to adhere to universal values.

A more political approach towards development cooperation is needed, including supporting democratic accountability. What does this mean for policy? I would like to address this question under four headings: