Prevention and Combating of Corruption Bureau (PLENARY SESSION) RULE OF LAW AND ANTI-CORRUPTION: CHALLENGES AND OPPORTUNITY Dr. Edward G. Hoseah Director General Prevention and Combating of Corruption Bureau Tanzania

Rule of law Corruption is the abuse and misuse of political authority and public office. It is a result of bad governance. Corruption poses a great challenge to good governance. There are five major components of Good Governance: Transparency, Accountability, Participatory, Rule of Law, and Democracy. Today we will focus on the Rule of law as the major theme of this Conference. Rule of law embodies three basic elements of reasonableness, fairness, and just procedure which are able to deal with injustices that corruption imposes on society. The concept of Rule of law provides a secure means of protecting individual rights and freedoms from the arbitrary will of the state.

Rule of law Corruption is manifested by the arbitrariness of those few in society who wield political power. The Judiciary must intervene against such arbitrariness and inquire into the exercising power of a Minister or his Department. If it is found that this power has infringed unjustly or mistakenly on the legitimate rights and interests of the subject, the Courts must so declare. Judiciary must have three eyes: Eyes of fairness, justice and integrity. The upright judges who can apply the restraint afforded by law.

…….Rule of law Defined Albert Dicey conception of the Rule of law entails three things: the supremacy of the law as opposed to arbitrariness (wider discretion), equality of all persons before the law, and the rights and liberties of individuals. Friedrich A. Hayek defines the Rule of law to include separation of powers, predictability and superiority of law as essential characteristics of a free state. It is disdain for arbitrariness, abhorrence of arbitrariness (Edward Coke, William Blackstone, David Hume, John Locke). The values for the Rule of law are separation of powers, an independent judiciary, a government under law, and equality of all before the law. Justice Kennedy of the US Supreme Court defines the Rule of law that “rests upon known, general principles applicable on equal terms to all persons. It follows that the Law is superior to, and thus binds, the government and its officials.

….Rule of law Defined The law must respect and preserve the dignity, equality, and human rights of all persons. To these ends the Law must establish and safeguard the constitutional structures necessary to build a free society in which all citizens have a meaningful voice in shaping and enacting the rules that govern them. The Law must devise and maintain systems to advise all persons of their rights and it must empower them to fulfill just expectations and seek redress of grievances without fear or penalty of retaliation. The Rule of law has eight sub rules as defined by Lord Bingham that law must be : accessible, clear, predictable, non-arbitrary, just, applies equally, protects human rights, resolves disputes without prohibitive cost or delay, and is enforceable. Robert Stein offers his thought on the characteristics of the Rule of law that “the law is superior to all members of society, the law is known, stable, and predictable. Members of society have the right to participate in the creation and refinement of laws that regulate their behaviors, the law is just and protects human rights and dignity of all members of society; judicial power is exercised independently of either the executive or legislative powers and individual judges base their decisions solely on facts and law of individual cases.

Challenges to the Rule of law Unchecked discretionary powers. Unpredictable rules of procedure governing parties to a dispute. Complex rules of procedure for ordinary citizens to understand. Lack of safeguards against abuse of power. Weak judiciary. Overbearing executive and legislative branches of government.

Opportunities of the Rule of law The Rule of law enhances good governance. Equality before the law minimizes corruption. Robust and strong judiciary sets the tone to realize fairness and justice. Constitution is the mother of all laws and should embody the tenets and discipline of the rule of law.

Conclusion Rule of law is fundamental in the realization of, and reduction/elimination of corruption. Rule of law signifies fairness, justice and integrity of society institutions. Rule of law minimizes corruption. Judiciary plays a determinant role on the content and breath of the Rule of law. Judicial review is the manifestation and actualization of the Rule of law. Rule of law through Judiciary imposes constitutional constraints on exercises of the authority of the other two branches of government.

References Albert V. Dicey, (1885) The Rule of Law, in Introduction to the Study of Law of the Constitution 181 (St. Martin’s Press 1959). Anthony M. Kennedy, Written Constitutions and the Common Law Tradition (August 10, 2006, Kuala Lumpur, Malaysia). Friedrich A. Hayek, The origins of the Rule of law, in The Constitution of Liberty 162 (University of Chicago Press: 1960). Robert Stein, The Rule of law Thomas Bingham, Rt. Hon. Lord, House of Lords, Sixth Sir David Williams Lecture, November 2006. 18 Minn. J. Int’l L. 293 (2009).