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Saturday, July 13, 2024
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Of rule of law and democracy

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Human rights, the rule of law and democracy are interlinked and mutually reinforcing and belong to the universal and indivisible core values and principles of democratic governments like the one we are nurturing in The Gambia.  Indeed, government responsiveness to the interests and needs of the greatest number of citizens is strictly associated with the capacity of democratic institutions and processes to bolster the dimensions of rights, equality and accountability.

If considered not solely an instrument of the government but as a rule to which the entire society, including the government, is bound, the rule of law is fundamental in advancing democracy. Strengthening the rule of law has to be approached not only by focusing on the application of norms and procedures. One must also emphasise its fundamental role in protecting rights and advancing inclusiveness, in this way framing the protection of rights within the broader discourse on human development.

A common feature of both democracy and the rule of law is that a purely institutional approach does not say anything about actual outcomes of processes and procedures, even if the latter are formally correct. When addressing the rule of law and democracy nexus, a fundamental distinction has to be drawn between “rule by law”, whereby law is an instrument of government and government is considered above the law, and “rule of law”, which implies that everyone in society is bound by the law, including the government. Essentially, constitutional limits on power, a key feature of democracy, require adherence to the rule of law.

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Another key dimension of the rule of law-democracy nexus is the recognition that building democracy and the rule of law may be convergent and mutually reinforcing processes whenever the rule of law is defined in broad, ends-based terms rather than in narrow, formal and exclusively procedural terms. The nexus is strong whenever the rule of law is conceived in its relationship with substantive outcomes, like justice and democratic governance.

A state that is governed by adhering to the rule of law places premium on maintaining a strong constitution, an effective electoral system, a commitment to gender equality, laws for the protection of minorities and other vulnerable groups and a strong civil society. The rule of law, defended by an independent judiciary, plays a crucial function by ensuring that civil and political rights and civil liberties are safe and that the equality and dignity of all citizens are not at risk. It also helps protect the effective performance of the various agencies of electoral, societal and horizontal accountability from potential obstructions and intimidation by powerful state actors.

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