The Rule of Law and National Security – Leesi Mitee

Photo Credit: Leesi Mitee

The current debate on the rule of law and national security has revealed that some lawyers don’t understand the profound ramifications of the sacred, omnibus concept of the rule of law.

The rule of law is *supreme*; without it, the human society will degenerate into the bestial, primordial state of survival of the fittest and the ultimate destruction of human society and civilisation. Without it, the law cannot perform its native function as a veritable, indispensable instrument of social engineering.

The rule of law governs national security and everything that happens in every civilised society. Even during the unfortunate period of emergency and war, the rule of law governs what is lawful and acceptable. That is why there is the *LAW OF WAR* that regulates acceptable conduct and activities of soldiers, including the prohibition of the use of chemical weapons and weapons of mass destruction, prohibition of torture, and the treatment of prisoners of war.

*The rule of law is the oxygen of every democracy*. On this unimpeachable general, universal philosophy, Kenya’s Chief Justice David Marag stated thus: “The rule of law is the oxygen of constitutional democracy.”

The United Nations authoritatively stated the following on the rule of law:

“The Secretary-General has described the rule of law as ‘a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. 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 transparency.’ (Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies (S/2004/616).”

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(c)Leesi Mitee (August 2018)


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