FINAL DISSERTATION

UNIVERSITY OF RWANDA
COLLEGE OF ARTS AND SOCIAL SCIENCES
SCHOOL OF LAW
P.O.BOX 56 BUTARE
BY: Christopher SENGOGA
SUPERVISOR: LLM Tom MULISA
Huye, June 2014
THE SYNERGY BETWEEN THE RULE OF LAW AND THE RIGHT TO
DEVELOPMENT: CASE STUDY RWANDA AND SOUTH SUDAN
This dissertation is presented in partial fulfillment of the requirement for the
award of a Bachelor’s Degree in Law (L.L.B)

i
DECLARATION
I, Christopher SENGOGA, declare that the work presented in this dissertation (memoire) is
original work. It has never been presented anywhere in the University of Rwanda or in any other
Universities and institutions. Where other individuals’ work has been used, references have been
vividly provided and in many cases quotations have been made to support the words said based
on other academic contributors. It is in this vein that I strongly affirm that this work is my own
product as a contribution to be the fulfillment of a bachelor’s degree in law (license).
Christopher SENGOGA
Signature: ………………………
Date …………………………….
Tom MULISA (LLM)
Signature: ……………………….
Date: ……………………………

ii
DEDICATION
This Dissertation is
dedicated To the
Almighty God;
My supervisor;
My brothers and sisters;
My friends, Comrades
and
My classmates!!!

iii
LIST OF ABBREVIATIONS
ACHPR: African Charter on Human and Peoples’ Rights
APA: Addis Ababa Peace Accord
Art.: Article
AT: Page
AU: African Union
Aug: August
BBC: British Broadcasting Corporation
BMZ: Feudal Ministry for Economic Cooperation and Development
CPA: Comprehensive Peace Agreement
DDR: Disarmament Demobilization and Reintegration
Dev’t: Development
E. g: For example
Ed: Edition
EU: European Union
FIDH: The International Federation for Human Rights
GoSS: Government of South Sudan
Ibid: Ibidem
ICCPR: International Covenant on Civil and Political Rights
NAM: Non Aligned Movement
NCP: National Congress Party

iv
No: Number
O. G: Official Gazette
O. J : Official Journal (Journal Officiel)
O. J.R.R: Official Journal of the Republic of Rwanda
Oct: October
SPLM/A: Sudan People’s Liberalization Movement/Army
UDHR: Universal Declaration of Human Rights
UK: United Kingdom
UN: United Nations
UNDP: United Nation Development Program
UNESCO: United Nations Educational, Scientific and Cultural Organization
UNICEF: United Nations International Children Emergence Fund
UNISAF: United Nations Interim Security Force for Abyei
USA: United States of America
Vol: Volume

v
ACKNOWLEDGEMENT
I am very grateful to have had this extraordinary privilege to recognize the contribution
made by Professor Vienney Dicey of USA for his restless effort and commitment towards the
surfacing of this dissertation. His creditable writings at every stage of this concept that motivated
me to take up for rule of law in my research.
May God bless my supervisor, Tom MULISA; he deserves a special appreciation for
guidance and help. He really challenged me positively in my dissertation which I found so
helpful for any future academic composition.
Without Particularly dedicated efforts of Lex:Lead group Organization more especially its
president Ann Bodley who connected me to the essay skilled typist and provided me with
international guideline citations which helped much in all other followed typed material
provided. Without her assistance, the dissertation would not have been pretty good and available
at the soonest possible period as it did.
I am very much pleased to record my keen appreciation to the University of Rwanda with
considerable credit given to the former National University of Rwanda particularly faculty of law
for its incredible knowledge and wisdom it imparted to us. For all that period from LLBI to
LLBIB where am able to present such well phrased material at this time.
I further extend my thanks to all my family especially brothers and sisters with more favor to
my brother Frank MUSEVENI for his kindness cooperation and generosity he portrayed for all
my academic struggle period, Friends, classmates and fellow students from the entire university.
Special regards goes to more than friend, a brother and a struggle partner Fred MUSONI for all
that cannot cut into pieces which came in malicious ways of encouragements and overtime. All
the days we strived together leaving none behind, what we shared in all spheres of life.
Finally, I am indebted to all those who helped me in the above mentioned ways and more others
at large whom have not elaborated. However, I am still responsible for all that may crop up in
this dissertation that may have over-looked.

vi
TABLE OF CONTENTS
DECLARATION............................................................................................................................ i
DEDICATION............................................................................................................................... ii
LIST OF ABBREVIATIONS ..................................................................................................... iii
ACKNOWLEDGEMENT............................................................................................................ v
TABLE OF CONTENTS ............................................................................................................ vi
GENERAL INTRODUCTION.................................................................................................... 1
1.1. HISTORICAL BACKGROUND...............................................................................................2
1.2. STATEMENT PROBLEM.......................................................................................................4
1.3. RESEARCH QUESTIONS.......................................................................................................5
1.4. GUIDING HYPOTHESIS........................................................................................................5
1.5. OVERVIEW OF THE WORK..................................................................................................6
CHAPTER ONE: RULE OF LAW AS VIEWED FROM DIFFERENT PERSPECTIVE... 7
SECTION 1: DEFINITION OF RULE OF LAW..............................................................................7
SECTION 2: HISTORY AND ORIGIN OF THE PRINCIPLE OF RULE OF LAW.........................10
SECTION 3: CHARACTERISTICS OF RULE OF LAW ...............................................................13
SECTION 4: MODERN CONCEPTION OF THEPRINCIPLE OF RULE OF LAW........................14
SECTION 5: THE OBJECTIVES OF THE PRINCIPLE OF RULE OF LAW..................................17
SECTION 6: THE SOURCES OF THEPRINCIPLE OF RULE OF LAW.......................................19
SECTION 7: THE PRINCIPLE OF RULE OF LAW WITH RELATED CONCEPTS ......................26
§1: Rule of law and Democracy ............................................................................................ 26
§2: Rule of law and Good governance .................................................................................. 27
§3: Rule of law and Accountability ....................................................................................... 28
§4: Rule of Law and Human Rights ...................................................................................... 29

vii
SECTION 8: CONCEPT AND THE CONTENT OF THE RIGHT TO DEVELOPMENT ................30
§1: History and Evolution of the Right to Development....................................................... 33
§2: The Right to Development as a Human Right................................................................. 37
§3: Country Position in the Right to Development ............................................................... 39
CHAPTER TWO: THE RELATIONSHIP BETWEEN THE PRINCIPLE OF RULE OF
LAW AND RIGHT TO DEVELOPMENT............................................. 44
SECTION 1: THE SYNERGY BETWEEN RULE OF LAW AND RIGHT TO DEVELOPMENT....44
SECTION 2: RULE OF LAW AND THE RIGHT TO DEVELOPMENT IN RWANDA..................47
SECTION 3: RULE OF LAW AND THE RIGHT TO DEVELOPMENT IN SOUTH SUDAN.........50
SECTION: 4. CRITICS ON THE PRINCIPLE OF RULE OF LAW................................................55
GENERAL CONCLUSION....................................................................................................... 57
RECOMMENDATIONS............................................................................................................ 58
BIBLIOGRAPHY....................................................................................................................... 60

1
GENERAL INTRODUCTION
This dissertation deals with relationship between the principle of rule of law and right to
development as a socio-economic right.1 It checks and points out a contributory factor on the rule
of law to the third generation of rights.2 Many observant and political leaders have abused
principle of the rule of law leading to political conflicts.3
It will deal with how international community has interpreted and applied rule of law.4 Hence
establishes the link between international jurists on rule of law and other international
instruments such as United Nations Declarations on rule of law, the Delhi Declaration and Lagos
Conference on rule of law.5
The dissertation also discusses the connotation on rule of law in Rwanda as a recent country that
has passed through political turmoil and ethnical distinction conflicts.6 This led to destruction of
infrastructures, death of thousands of many civilians, decimated by hanger and paralyzed the
economy due absence of principle of rule of law.7
Little interest in comparison with a newly born sister country South Sudan that faced and still
facing political upheavals, illiteracy of the highest imaginable level, poverty and massive
violations of human rights due to tribal class conflicts.8 All these happening in south Sudan was
a result of lacking effective control of rule of law.9
1S. Haggard,A. Macintyre &L. Tiede, “The Rule of Law and Economic Development” (2008) 11 J. W. Dev’t 205 at
234.
2 Haggard, Macintyre& Tiede Supra note (1) at 240.
3UNDP Program for Justiceand Security <http://www.unrol.org/files/rol_final_apr09.pdf>accessed on
16th.03.2014.
4 J. F. Murphy, The United States and Rule of Law in International Affairs, 2d Ed (London: University of Cambridge
Press,2004) at 12 <http://books.google.rw/books.php> accessed on 16th.3.2014.
5 E. Wade & G. Phillips, Constitutional law, 8th Ed (London: Longman Publishers,1970) at75.
6 P. Uvin & C. Mironko, “Western and Local Approaches to Justice in Rwanda” (2003) 9 J. Global Governance, 291
at 291 <http://heinonline.org/HOL/LandingPage?handle=hein.journals.html > accessed on 16th.03.2014.
7 C. Newbury, Ethnicity and the Politics of History in Rwanda, Vol. 45 (Bloomington: Indiana University Press,1998)
at 7 <http://www.jstor.org/stable/4187200?-redirected.html> accessed on 16th.03.2014.
8United States Institute of Peace “Rule of Law” <http://www.usip.org/publications/the-conflict-in-south-sudan-
the-political-context.tml>accessed on 17th.0.2014.
9N. Leader, Development & Humanitarian aid, Principles & Ethics, Protection, Human rights & Security, (London:
Overseas Development Institute (ODI) 2000) at 70.

2
Discussing whether rule of law would be the best solution to all sorts of negative attitudes that
have made many African states not to develop political, social and economical institutions.10
Thus looks at the developed countries’ measures towards right to development that has taken to
be an important right which entails the rule of law to this modern world.11
1.1. HISTORICALBACKGROUND
The history of the principle of rule of law originated far back in history and as early the middle
ages. Since then its historic ideal has been conceived as a constitutional law.12The theory held
that there was a principle which was regarded as universal law that ruled the world.13 Both the
leaders who ruled and those subjected to the law justify how the whole world had a direct line
governed by the law.14
The king was regarded to have divine power to rule and the king himself ought to have a right to
rule directly from God not from consent of people.15 He was taken to be the judge of those who
were living and to the law because people believed that, the law made the king to be powerful
with a final word in the society as he was taken to represent rule of law.16
During Mediaeval period, lawyers started to realize the wide scope of the royal prerogatives
making them to demand that, the king could do certain things in some certain ways.17 It was not
until the seventh century that the British parliament limited the powers of the monarchy, the rule
of law meant the supremacy in all parts of England both enacted and unenacted rules.18
10 W. Kenneth Dam, The Law-Growth Nexus: Rule of Law and Economic Growth Development, 1st Ed (Virginia:R. R.
Donnelley Co. Ltd, Harrisonburg,2006) at31.
11 I. Brownlie,Basic Documents on human Rights (London: WilliamClowes,1977) at 440.
12H. Fallon,“The Rule of Law” as a Concept in the Constitutional Discourse”(1997) 97 Columbia Law Rev. 1208 at
1224 <http://www.jstor.org/stable/1123446?-redirected.php> accessed on 18th.03.2014.
13J. S. Ryan, “Rule of Law” <http://www.amazon.com/On-Rule-Law-History-Politics/dp/0521604656.html>
accessed on 18th.03.2014.
14A. Jacobson & B. Schlink, Philosophy, Social Theory and the Rule of Law, Vol. 8 (California:University of California
Press,2002) at 36.
15Random House Kernerman Website’s CollegeDictionary <http://www.thefreedictionary.com/Divine+rule.html>
16O. Hood Phillip, Constitutional and Administrative Law, 5th Ed (London: Longman Publishers,1970) at75.
17D. Ross,A History of the British Nation, Ed (London: London University CollegePress,1912) at 17.
18J. Griffith,“The Common Law and the Political Constitution”(2001) 11 J. L. Quarter Review 42 at 64.

3
Rule of law in Rwanda has a sounding history from the colonial masters but gained momentum
during the centralized Rwandan society before the coming of Europeans.19 Here the government
was organized in a form of monarchy.20
The king (Umwami) was a sovereign ruler on the land exercising his authority over federal lords,
using means of well-organized central administration.21 Like in other African Traditional
societies, in Rwanda the king took the character of patriarch where every activity was centered
on the male side.22 In exercising his authority the king’s decision was absolute and final. This
showed a historical event of the principle of rule of law.23
Around 1954, during the reign of king Rudahigwa, the ubuhake of serfdom was abolished by
colonial masters (Belgians and French) who were mandated to occupy Rwanda, Burundi and
Belgian Congo.24 The ‘Ubuhake’ was replaced by a principle of equality where all the local
people were to be equal before the law.25 This was seen in equal payment to those with same
work which entails a transition movement with the principle requirement under rule of law.26
The Rwandese Patriotic Frontier from exile decided to sign an agreement with the Rwandan
government that occupied power by then.27 This was Arusha peace accord on how the Rwandan
government would respect the principles of rule of law.28 This was to emphasize the principle of
rule of law hinging on democracy, national unity, pluralism and respect of fundamental human
rights.29
19Griffin, Supra note (18) at 68.
20W. Schabas & M. Imbleau, Introduction to Rwandan Law (Cowansville: Editions, Yvonne Blairs, 1997) at 4.
21J. Vansina,Antecedents to Modern Rwanda: The Nyiiginya Kingdom, 2d Ed (Oxford: University of Wisconsin Press,
2004) at 5.
22 Vansina, Supra note (21) at 14.
23G. Pruner, The Rwandan Crisis 1959-1994: History of Genocide, Eds (Kampala: Kampala Fountain Publishers,
1995) at 9.
24P. Bamurangirwa, Rwanda Yesterday, (Leicester: Troubador Publishing Ltd, 2013) at 30.
25T. Longman, Christianity and Genocide in Rwanda, (London: Cambridge University Press, 2009) at 71.
26M. Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of late Colonialism (London: Princeton NJ
University press, 1996) at 64.
27H. Adelman & A. Suhrke, The Path of a Genocide: The Rwanda Crisis from Uganda to Zaire, Eds (New Jersey:
Transaction Publishers, Ltd, 2000) at 282.
28 Arusha Peace Accord of August 4, 1993 Art. 3 (2).
29 Arusha Peace Accord of August 4, 1993, Art. 3 (4).

4
1.2. STATEMENT PROBLEM
The massive violations of human rights that characterized many African states particularly
Rwanda since 1950s that came to explode into 1994 tragedy of genocide.30 This was a result of
lacking proper functioning of the principle of rule of law, yet Rwanda had signed and ratified the
rule of law.31 The Declaration of Delhi in and Lagos conference on rule of law could have
stopped the violations of human rights.32
All violations of rule of law that led to political conflict and economic retardation which Rwanda
experienced.33 The ongoing similar problem the newly born country of South Sudan is currently
facing was the very reason that prompted the author to write this dissertation.34 This is to analyze
if rule of law would be a genuine reason to opt for when looking for right to development as
socio-economic right.35 This is even provided for in the constitution of Rwanda of 2003 as
amended up to date.36
The concept of rule of law has been perceived by many scholars as a normative figure and
concept with various political dimensions of ideological agenda.37 Principle of rule of law is still
exposed to too much debate on its meaning, content and how its implementation works in
different independent countries.38 Democratic and non-democratic governance results in
participative rules are also exposed to question like who decides what to be measured and how?39
30P. Thomas Odom, ‘Journey into Darkness: Genocide in Rwanda (Texas: A & M University press,2005) at 162.
31 ILA Resolution 3/2000, Report of Seventieth Conference on Rule of Law, New Delhi (London: ILA, 2002)
<http://www.ila-hq.org/rule-of-law/conference.php> accessed on 19th.03.2014.
32 K. Reji & T. Rakkee, Right to Development in India, No. 4 (New Delhi:India,2004) at17.
33IDLO “Rule of Law” <http://www.idlo.int/news/highlights/hague-setting-wide-ranging-rule-law.html> accessed
on 19th.03.2014.
34H. McNeish, Voice of America News, “Conflicts in South Sudan” (Washington,5th November 2013)
<http://www.voanews.com/content/south-sudan-rule-of-law-/1781826.html> accessed on 19th.03.2014.
35J. Raz, Rule of Law and Its Virtue, 1st Ed (New York: Rutledge Press,2009) at 181.
36The Constitution of Rwanda (O. G. No. Special) of 2003 as amended up to date, Art. 9 (5).
37N. Haches & J. Wouters, Promoting the Rule of Law: A Benchmark Approach, No. 105 (Cambridge: Cambridge
University Press,2013) at 5.
38A. Anghie, “Rethinking Sovereignty in International ruleof law”(2009) 5 J. Int’l Law 291 at 311
<http://www.annualreviews.org/action/doSearch?rule-of-law.htm> accessed on 19th.03.2014.
39M. Tommasoli,“Rule of Law and Democracy: Addressingthe Gap between Policies and Practices”(2012) 44 Mgz
of UN par 9 <http://unchronicle.un.org/article/rule-law-and-democracy.php>accessed on 20th.03.2014.

5
German major war criminals were charged of abominable crimes against Jews and other
European minorities during World War II.40 They argued that they killed Jews because they were
a threat to their government thus all acts they did were in line with their rule of law.41 Then one
could wonder whether Germany by then had no rule of law and if the Jews had no right to life,
liberty as well as the right to development in their respective countries?42
1.3. RESEARCH QUESTIONS
(1) Can’t the right to development be realized without the principle of rule of law?
(2) What is the relationship between rule of law principle and the right to development?
1.4. GUIDING HYPOTHESIS
In the view of the above discussion, when the government enacts laws which are in conformity
with the rule of law and exercise its authority under the set principles of law in line with other
international human rights instruments which emphasize development programs.
Undoubtedly rule of law will create a peaceful environment with protection of people’s rights
both citizens and non-citizens together with state activities that would amount to realization of
the right to development.
Constant discussions and research from different academic scholars all over the global have
shown that, the relationship between the principle of rule of law and the right to development lies
in the practice where rule of law promotes forms of governance.
In which all persons, institutions and entities public and private, including the State itself are
accountable to the laws and answerable to the population. Hence this will promote the culture on
respect of human rights, create peaceful environment for the people to work leading to the
development.
40A. Garcia,M. Silar & J. M. Torralba, Natural Law: Historical, Systematic and Juridical Approaches, Eds (Newcastle:
Cambridge Scholars PublishingOrg,2008) at 420.
41P. Behrens & R. Henham, Elements of Genocide, Ed (London: Rutledge Press,2012) at 42.
42K. Neil, Law’s Limits: The rule of law, the Supply and Demand of rights, 2d Ed (New York: Cambridge University
Press,2000) at 41.

6
1.5. OVERVIEWOF THE WORK
In the introductory chapter, this paper will deal with the definitions of the principle of rule of law
as provided by different legal academic scholars.43Further reference goes to international
conference and protocol on rule of law like Delhi Declaration of 1959 and Lagos conference on
rule law of 1961.44
Still the work will look at a historical political movement that gave rise to rule of law in
Rwanda.45 This was a Protocol of Agreement on rule of law between the Rwandan government
by then and the Rwandese Patriotic Front in Arusha Tanzania.46 This paper will also look at the
relationship between rule of law and the right to development purposely to assess the role which
rule of law can play to bring about development.47
Typical attribution will be in low developed countries with a strict reference to Rwanda and
South Sudan.48 These chosen countries have similar background particularly on ethnical
ideological conflict that led to political instability as a result of civil wars.49This violated human
rights and retarded development in these two countries.50The additional work will be dealing
with the critics on rule of law from many scholars negating the role of rule of law in the right to
development.51
43Rule of Law Restoration <http://www.ruleoflawrestoration.com/about/defining-rule-of-law.php> accessed on
20th.03.2014.
44A. Lane, “Protocols on Rule of Law” <http://www.consoc.org.uk/discover-the-facts/the-rule-of-law.html>
45 I. Gaparayi,New Times, “Rwanda: Rule of Law, ”Political Choicesand Development” (Kigali,August18, 2009)
<http://www.newtimes.co.rw/news/index.php?i=13991&a=18893.html > accessed on 21st.03.2014.
46 M. Mamdani, When Victims become Killers: Colonial, Nativism and Genocide in Rwanda (Kampala:Kampala
Fountain Publishers Ltd,2001) at 75.
47Law and JusticeInstitutions <http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTLAWJUSTINST.php >
accessed on 21st.03.2014.
48UNDP, “South Sudan conflicts” <http://www.undp.org/content/undp/en/home/librarypage/rwanda-south
Sudan/access_to_justice-and-rule-of-law.html>accessed on 21st.03.2014.
49E. Kalisa& J. Nyanshwa,The Sunday Times, “South Sudan Crisis:FromPower Struggle to Ethnic Killing” (Kigali,
May 4, 2014) <http://www.newtimes.co.rw/news/index.php?i=15712&a=14720.hml > Accessed on 21st.03.2104.
50T. Freccia,“Violations of Ruleof Law” <http://www.enoughproject.org/conflicts/sudans/conflicts-south-
sudan.php> accessed on 21st.03.2014.
51L. Kaplan,The solicitor General and rule of law, Ed (New York: Random house Publishers,1987) at340.

7
CHAPTER ONE: RULE OF LAW AS VIEWED FROM DIFFERENT PERSPECTIVE
SECTION 1: DEFINITIONOF RULE OF LAW
Rule of law in its most basic form is a principle that was put forward by an American legal
scholar Thomas Pain in his pamphlet “Common sense” in 1776.52 He says that Rule of law is a
principle which states that no one is above the law in free society which are democratic and
Republic states.53 Whereas in monarchical states the king himself is the law save the case of
England after issuing of magna Charta which reduced the powers of the king.54
British jurist further contends that law should act like death which spares no one and thus law
should be respected due to its supremacy.55 In 1644, Samuel Rutherford in his book Lex Rex had
earlier alone advanced the meaning of rule of law which merged the first modern writing to give
a theoretical principle foundation on the principle of rule of law.56
In 1748, Rutherford’s work was complemented by a French Philosopher in his famous book “the
spirit of laws.”57 All these writings and suggestions inspired and created a great influence on
formation of continental European laws which reflected the principle of the rule of law.58 This
helped the formation of the modern Anglo-American thinking hallmarks of adherence to the rule
of law which commonly include a clear separation of powers.59 Hence reflects the principle of
the rule of law.60
52T. Pain,The Common Sense, Vol. 1 (Philadelphia:Gutenberg Project Publishers,1776) at41
<https://www.google.rw/?gws_rd/Thomas/Pain/pamphlet.php> accessed on 20th.03.2014.
53Pain,Supra note (52) at 44.
54A. B. White, “The Name of Magna Carta:English Historical Review” (1915) 30 J. E.H. Review 472 at554
<http://www.aph.gov.au/binaries/senate/pubs/pops/pop39/lairg.pdf>accessed on 20th.03.2014.
55R. Lempert, “Growing up in Law and Society: the Pulls of Policy and Methods” (2013) 9 J. Int’l Law 15 at 32.
56S. Rutherford, Lex, Rex: The Law and The Prince (Colorado:Portage Publications,1644) at19.
57T. Nugent, The Spirit of the Laws, Vol. 1 (London: J. Nourse Press,1777) at 221.
58 Encyclopedia Britannica,“Ruleof law” <http://www.britannica.com/EBchecked/topic/142953/continental/laws/
rule-of-law.html> accessed on 12st.03.2014.
59 G. Sarah Berb, Rule of law within European communities, 2d ed (New York: R. Donnelley Ltd, 2002) at10
60 Berb, Supra note (59) at 14.

8
In the legal dictionary, the concept of Rule of law is perceived as rule under law or rule
according to a higher law.61 However, the definition concedes that rule of law is an ambiguous
expression that can mean different things in different contexts.62 In one context the term means
rule according to law means, no individual can be ordered by the government to pay civil
damages.63 No one should suffer criminal punishment except in strict accordance with well-
established.64 These laws and procedures should be clearly defined with well phrased
punishments thus this will entail the principle of the rule of law.65
In the second context, the term means rule under law which says that no branch of the
government is above the law a reason why each should work in checks and balances.66Thus no
public official may act arbitrarily or unilaterally outside the law which means rule of law.67 In a
third approach, the term means rule according to a higher law.68 The rationale behind this was
that; no written law may be enforced by the government unless it conforms to certain unwritten
laws.69 These laws should be in line with universal principles of fairness, morality and justice
that reflect human legal systems which will entail the principle of rule of law.70
In 1885, Dicey explained rule of law from his first published work.71 This work was based on the
powers of the law, where he dealt with three guiding principles of rule of law which characterize
the modern constitution of England.72 Dicey and Kalven discussed three distinct elements, the
first defined rule of law as; “Absence of arbitrary power.73
61 Berb, Supra note (59) at 16.
62 The Free Dictionary,“Rule of Law” <http://www.nolo.com/dictionary.hml> accessed on 21st .03.2014.
63The Legal Dictionary,“Rule of Law” <http://legal-dictionary.thefreedictionary.com/Rule+of+law.hml> Accessed
on 21st .03.2014.
64 The Constitution of the Republic of Kenya Revised Edition of 2010, Preamble.
65 Ibid.
66 The Legal Dictionary,“Rule of Law” <http://legal-dictionary.thefreedictionary.com/Rule+of+law.hml> Accessed
on 21st.03.2014.
67A. Cass Rolland,“Ruleof Law in America” (2001) 65 J. Politics 615 at617.
68A. Cass Rolland, Ruleof Law in America, (Baltimore: Johns Hopkins University Press,2001) at40.
69 A. Dicey, Law of the constitution, 10th Ed (London: Random House Co. Ltd, 1959) at 187.
70 Dicey, Supra note (69) at 192.
71 M. D. Walters,“Dicey On Writingthe Law of the Constitution” (2012) 32 Oxford J. L. Studs . 21 at 27.
72Walters,Supra note (71) at 29.
73B. Li, “What is Ruleof Law” <http://www.oycf.org/Perspectives2/5_043000/what_is_rule_of_law.htm> accessed
on 22nd .03.2014.

9
The second asserts that, no man should be above the law and no man should be punished except
for a distinct breach of law established in the ordinary legal manner before ordinary courts.”74
This meant the principle of rule of law.75
Legal scholars from world justice project like Juan Carlos Botero, Robert, L. Nelson, and
Christine Pratt understand rule of law as the underlying frame work of rules and rights that make
prosperous fair justice possible.76 This means a system in which no one including the
government is above the law.77 All these laws should protect fundamental human rights as well
as be accessible to all regardless of sex or any other differences hence reflecting the principle of
the rule of law.78
Other scholars concur with Dicey’s arguments where he said that, a man should not be punished
without a breach of law.79 This argument seems contrary to some state’s jurisdictions that
punishes acts or omissions which were not punished at that time they were committed.80 If these
acts or omissions are considered criminal, they are charged and punished following the principles
of law recognized by the community of nations.81 Then rule of law is recognized within the
international community.82
Research on principle of rule of law say that, rule of law is the most important political ideal
today where all developed and still developing states cannot realize the right to development
without favorable practice of the rule of law.83
74H. Kalven Junior, The Quest for Middle Range: Empirical Inquiry & Legal Policy, Ed (Oxford: Englewood Cliffs,NJ
Prentice-Hall,1968) at58.
75 D. Basu,Introduction of the Constitution of India, 18th Ed (New Delhi:Raj PrintingLtd, 1997) at 824
76World JusticeProject, “Rule of Law” <https://www.agidata.org/site/SourceProfile.aspx?id=25.hml>Accessed on
22nd .03.2014.
77 Basu,Supra note (75) at 826.
78 R. Michener, The Balance of Freedom: Political Economy, Law, and Learning, Ed (New York: Paragon House,
1995) at 78 <http://www.googlebooks.rw.rd/laws/to/stop/arbitrary/acts.php> accessed on 22nd .03.2014.
79 The Free Dictonary “Retroactive acts”<http://legal-dictionary.thefreedictionary.com/retroactive.hml>accessed
on 22nd .03.2014.
80E. Kant, Retributive Theory of Punishment: Philosophy of Law, P. II (Ebensburg: T &T. Clark Co Ltd, 1887) at 24.
81 P. Schofield,“The Legal and Political Legacy of Jeremy of Bentham” (2013) 9 J. L. & Politics51 at70
<http://www.annualreviews.org/doi/full.php> accessed on 23rd.03.2014.
82 Schofield,Supra note (81) at 81.
83 B. Tamanaha,Rule of Law: History, politics and Theory, 1stEd (London: Cambridge University press,2004) at 21.

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SECTION 2: HISTORYAND ORIGIN OF THE PRINCIPLE OF RULEOF LAW
The history of rule of law stems far back from many traditions and continents whose theories
seem to be intertwined with the evolution history of law itself.84 Much work has been written by
different authors who seem to have the same views on the history of rule of law.85 Some
historical sources say that, rule of law originated from the Code of Hammurabi which was
promulgated by the king of Babylon around 1760 B.C.86
These codifications of law merged as the first examples that were presented to the public and
applied to the arbitrary acts of ancient rulers.87 Two thousand years ago, Aristotle emphasized
that, “The rule of law is better than that of any individual which signified the history of the
principle of rule of law.”88
Aristotle’s augment was in line with Bracton’s writing in the first half of 13th century where he
was quoted saying that; both rulers and the ruled should be subject to the law.89 This showed a
historical origin of the principle of rule of law.90 In the Arab world, the concept of rule of law
was conceived in away where a rich tradition of Islamic law embraced the notion of supremacy
on law.91 Law entailed core principles of holding the government authority to account through
placing the wishes of populace before the rulers which depicted the history the rule of rule.92
84 P. Selznick, Law, Society and Industrial Justice, (New York: Russell SageFoundation Press,1969) at 106.
85A. Dicey, Introduction to the Study of the Law of the Constitution, (Indiana:Polis Liberty Fund Ltd, 1982) at 73.
86 C. Horne, The Code of Hammurabi: Introduction, Ed (New York: Babylonia Forgotten Books, 1915) at174.
87P. Hassall “History of Ruleof Law” <http://www.fordham.edu/halsall/ancient/hamcode.asp> accessed on
23rd.03.2014.
88Y. Jiyuan,The Ethics of Confucius and Aristotle: The Mirror of Virtue, (London: Rutledge Publishers Ltd,2007) at
47 <http://books.google.rw/books?id/aristotle/rule+of+law.html> accessed on 23rd.03.2014.
89 L. Mayhew, Law and Equal Opportunity (Cambridge: MA; Harvard University Press,1968) at45.
90 Mayhew, Supra note (89) at 53.
91D. M. Mednicoff, “The Rule of Law and Arab Political Liberalization”(2006) 9 J. L & Pol.Studs 50 at 57.
<http://people.umass.edu/mednic/public_html/mednicoffruleoflaw.pdf> accessed on 24th.03.2014.
92 J. Brown, The Rule of Law in the Arab World: Courts in Egypt and the Gulf, 2d Ed (New York: Cambridge
University,1997) at 113.

11
Heads of governments could sometimes be answerable for their acts once found contrary to the
populations’ expectations.93 This would be found mainly in the moral and philosophical
traditions across Asian continent including Confucianism which meant rule of law.94
Regarding Anglo-Saxon and American context, the Magna Charta of 1215 became an essential
prominent document.95 This document came to check and where necessary stop the arbitrary acts
of the king and other officials thus meant reflection of rule of law.96 These officials could wake
up one morning and over step their powers to be overall top heads in their respective societies
thus a kind of checkup which dates the history of rule of law.97
This emphasized the importance of the judiciary together with the role judicial process as a
fundamental characteristic of the principle of rule of law.98 Basing on the European conception,
constitutionalism was the basic notion of rule of law and it had a particular focus on states of
continental Europe.99 Recent attempts have been made to assimilate the meaning of rule of law to
have light on this rich history with clear understanding of the principle of rule of law.100
This would help both historians and legal scholars to understand the principle of rule of in easiest
ways.101 The modern conception of the rule of law has developed as a clear concept distinct from
the “rule of man.”102
93Lawyers and Jurists,“Ruleof Law” <http://www.lawyersnjurists.com/articles-reports-journals/law-and-
ethics/rule-of-law.hml>accessed on 24th.03.2014.
94E. Cotran & O. Adel Sheriff, Democracy: The rule of law and Islam (Brill: 1999) at153.
95 V. Ralph Turner “History Today” <http://www.historytoday.com/ralph-v-turner/meaning-magna-carta-
1215.hml> accessed on 24th.03.2014.
96 The Biography of KingJohn, “Rule of Law” <http://www.lordsandladies.org/magna-carta.htm> accessed on
24th.03.2014.
97M. Davis,The Politics of Law Philosophy: A Commentary on Aristotle’s Politic, 3d ed (Row man & Little Field
Publishers Inc,1996) at49.
98L. Morton, Law, Politics and Judicial Process in Canada, Ed (Canada:University of Calgary Press,2002) at415.
99D. Boucher, The rule of law in the Modern European state (Oakeshett: Cardiff University Press,2005) at92.
100 J. Stoner, Common Law and Liberal Theory (Lawrence: University Press of Kansas,1992) at25.
101Stoner, Supra note (100) at 29.
102 P. Costa & D. Zolo, The Rule Law: History, Theory and Criticism, Eds (The Netherlands: Springer PublishingCo.
Ltd, 2007) at73.

12
This involves the system of governance and development based on non-arbitrary rulers which
shows a clear image of rule of law principle.103 This principle of rule of law is deeply linked to
the principle of justice which involves an idea of accountability and fairness in the protection and
vindication of human rights.104 It extends very far to prevention and punishment of social devices
which depicts the principle of rule of law.105
Long before the formation and rise of the United Nations, state leaders were working tirelessly to
establish a rule of justice since the days of Napoleon Bonaparte of France in 1815.106 The
agitation continued till the end of World War II to restore international peace with an idea of
establishing an international community based on the principle of rule of law.107
It was of recent when United Nations introduced the concept on the rule of law where it included
the meaning of rule of law in the preamble of the charter.108 Among its aims is to establish
conditions through making treaties for the states to respect the obligations arising from their
contracts.109 This is for the purposes of justice and peace reflecting the principle of rule of law.110
This facilitated the birth and rapid merging of a new world concept of the right to
development.111 It became a measure of states’ based principles on running the state activities in
line with the principle of the rule of law.112
103 A. Anter, Max Weber’s Theory of Modern State: Origin, Structure and Significance (London: PalgraveMacMillan
Publishers Ltd,2014) at 46.
104 International Commission of Jurists (ICJ) “PromotingAccountability through the Human Rights Bodies” (Geneva,
September 20, 2012) <http://www.iccnow.org/documents/ICJTRIALREPORTSTATES_Sept_2013.pdf> accessed on
26th.03.2014.
105D. Terrance Miethe & L. Hong, Punishment: A Comparative Historical Perspective, 1stEd (Cambridge: Cambridge
University Press,2005) at 15.
106S. Sivagnanam,“Principles of Natural Justice”(Tamil Nadu State Judicial Academy, June 1, 2009)
<http://www.hcmadras.tn.nic.in/jacademy/article/Pri20Natural/TSSJ.pdf>accessed on 26th.03.2014.
107History of United Nations,PresidentD. Franklin Roosevelt,“Declarations by United Nations” (New York, January
1, 1942) <http://www.un.org/en/aboutun/history.php> accessed on 26th.03.2014.
108 Charter of the United Nations in Preamble.
109 Charter of United Nations of 26th June 1945 Art 1 & 2.
110 Ibid.
111 E. Dumont, “The British Constitution and French Revolution” (2007) 50 J. Int’l HRts 23 at 47
<http://www.annualreviews.org/doi/full.thml> accessed on 26th.03.2014.
112 Dumont, Supra note (111) at 52.

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The history of rule of law in Rwanda is depicted from the pre-colonial Rwanda where the
government was organized in a monarchy form.113 During this period, the king (Umwami) was a
sovereign ruler ruled with the help of chiefs or feudal lords using means of centralized
administration which entail rule of law.114 All powers were fused to the king even life of the
local people in the society, a character that shows powers of the law reflecting the presence of
the principle of rule of law.115
All in all the research show that whether Rwanda or any other society had principle governance
which reflected the principle of rule of law in their respective societies.116 Hence it is clearly
evident that the history of rule of law was present in all societies though had a different
implementation.117
SECTION 3: CHARACTERISTICS OF RULE OF LAW
According to Professor Albert Vienne Dicey’s writings about rule of law and his enduring
significance holds much content on the characteristics of law as.118
 The supremacy of law which means that all persons (individuals and governments) are
subjects to law.
 Legislation should be prospective and not retrospective.
 There should be an independent judiciary.119
 There should be complementarities between exercise of parliament of legislative power
and restrictions on exercise of legislative power by the executive.120
 Finally the presence of underlying moral basis for all laws even as stipulated in the
constitution of the Republic of Rwanda as amended up to date in its articles 1 up to
three.121
113 Schabas & Imbleau,Supra note (20) at 4.
114M. Harvey Weinstein, W. Sarah Freedman & T. Longman, The Teaching of History of Rwanda: A participatory
Approach, (Kigali: National Curriculum Development Center, 2006) at 8.
116R. Oliver, The E. African Interior: The Cambridge History of Africa, ed, Vol. 3 C.1050-1600(London: Cambridge
University Press, 1977) at 643.
117 Oliver,Supra note (116) at 674.
118 M. Laughlin,Public law and Political theory (Oxford: Oxford University Press,2003) at 10.
119 The Constitution of the Republic of South Africa Act, No. 108 of 1996 as Amended up to Date, Art. 174 (2).
120Dicey, Supra note (85) at 190.
121The constitution of the Republic of Rwanda (O. G. No. Special) of 2003 as amended up to date Art. 9.

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SECTION 4: MODERNCONCEPTION OF THEPRINCIPLE OF RULE OF LAW
The modern world perceives the concept of rule of law from the tragedy which the international
community witnessed during the period 1933-1945.122
During this period, people from different countries especially Europe, Asia and few from
America perished in unnecessary war.123Since then the international community decided to make
the principle of law an issue.124 The United Nations formulated the basic elements of rule
emphasizing on the rule of law as an everlasting idea to unite all world societies in early
transition.125
This was to help poor societies and most affected areas to uplift their state activities particularly
to every act done encompassing all legal systems reflecting the principle of rule of law.126 Delhi
Congress is praised to have tried much and gave rise to three important elements in the concept
of the Rule of Law reflecting the modern concept of this fundamental principle.127
It laid down three elements, first being that, the individual is possessed with certain rights,
freedoms and he/she is entitled to protection of these rights by the State.128 This is a clear
manifestation of the rule of law.129Secondly, there is an absolute need for an independent
judiciary and bar as well as effective mechanism for the protection of fundamental rights that
goes with freedoms.130 This would entail the practical implementation of the rule of law.131
122The Bad War,“History of World War II”<http://tomatobubble.com/worldwarii.html> accessed on 28th.03.2014.
123World War II,“Many People Died in War” <http://worldwar2.org.uk/how-many-people-died-in-world-war-
124United Nations Rule of Law Website and Document Repository, “Rule of Law Issue”
<http://www.unrol.org/article.aspx?article_id=2.php> accessed on 28th.03.2014.
125United Nations Website, “United Nations Approach to the Rule of Law Assistance”(New York, April 12, 2008).
<http://www.unrol.org/files/RoL%20Guidance%20UNApproach%20FINAL.pdf> accessed on 28th.03. 2014.
126J. Martin “History of Rule of Law” <http://news.wustl.edu/news/Pages/22182.aspx.html> accessed on
28th.03.2014.
127E. Angell, The Rule of Law at the New Delhi Congress of the International Commission of Jurists, Vol. 3, No. 2
(New York: American Bar Association,1959) at22.
128 Angell, Supra note (127) at 24.

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Thirdly; there should be a need for the establishment of social, economic and cultural conditions
which would permit all citizens to live in dignity so as to fulfill their legitimate aspirations.132
Once the legitimate aspirations are fulfilled as a result of law, it reflects rule of law.133 In 1959,
the commission held in Netherlands for the preparation of the congress meeting where they
drafted working paper on the rule of law.134
This paper was drafted as a sign of respect to international norms which reflected the principle of
rule of law.135 The paper was based on information gathered on international survey by lawyers
and legal institutions purposely to lay a firm foundation for the principle of rule of law.136 The
information was divided into sections of legislative and the rule of law, the executive and the
rule of law, criminal process and the rule of law.137 The last section comprised of the judiciary
and legal profession, in which all reflected the principle of rule of law.138
This was in line with Lagos conference on rule of law which certifies that the principle is a
dynamic concept that should be employed to safeguard human rights.139 It advances the will of
the people together with their political rights reflecting the rule of law principle.140 The thesis
and writings from the authors of both 19 and 20th centuries concentrated their doctrines much on
equality before the law, emphasizing individual rights with hopes to reach the principle of rule of
law.141
132A. Raj “Rule of Law Conference” <http://www.justice4sale.wordpress.com/international-commission-of-
jurists.html>accessed on 30th.03.2014.
133 Ibid.
134 United Nations, Year Book of International Law Commission, Vol. 1 (New York: United Nations Publication No.
59, Vol. 1, 1959) at 30.
135United Nations, Supra note (134) at 41.
136 T. Frank,“International Commission on Rule of Law” <http://www.law.cornell.edu/rules/frcp/rule_26.php>
137 Ibid.
138T. Treves, “United Nations Commission of Jurists”<http://legal.un.org/avl/ha/gclos/gclos.html>accessed on
30th.03.2014.
139 A. Larson,African Commission on the Rule of Law: A Report on the Proceedings of the Conference, (Geneva:
International Commission of Jurists,1961) at177 <https://www.library.yorku.ca/find/Record/1411051.php>
140 Larson,Supra note (139) at 179.
141 Wade & Phillips, Supra note (5) at 33-34.

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This was emphasized by a British jurist whose effort was much on supremacy of law.142 He
focused on predominance of legal spirit where he said that, people should have equal rights and
duties so as to reflect the principle of rule of law.143 Considering the reality, the public authority
has much stronger power than that of the ordinary local people.144 This power becomes flexible
whenever the country follows the principle of governance and democracy which indicts the rule
of law.145
The turning point to the respect of the principle of rule of law in Rwanda was discussed during
Arusha Protocol on rule of law.146 The Protocol on rule of law was signed between the Rwandan
government by then and Rwandese Patriotic Frontier.147 As a result, the protocol brought tension
because the government was obliged to implement terms of the protocol.148 The protocol was to
hinge on national unity, democracy, pluralism and respect of human rights.149
In a modern world most countries have advanced justice system under the pretext of rule of law
where special offices have been established.150 Like the Inspector General of Government (IGG)
in the Republic of Uganda and the office of Ombudsman in Rwanda.151 Similar efficient office of
ombudsman was established in Sweden whose function is to investigate complaints of injustice
to citizens resulting from faulty administrative acts.152 This shows a form democratic state
reflecting the principle of rule of law.153
147 Schabas & Imbleau, Supra note (20) at 12.
148 Brownlie, Supra note (11) at443.
149 Brownlie, supra note (11) at 445.
150MD. Haider Ali,“Rule of Law” <http://forum.daffodilvarsity.edu.bd/index.php?topic=4919.0.tml > accessed on
30th.03.2014.
151 The Constitution of the Republic of Uganda of 1995,Art 225 (1) (a) & (e).
152S.E. Eufrecht, Public Administration and Public Policy,” The Ombudsman Office, Vol. II (Anchorage: University of
Alaska,1976) Par 4 <http://www.eolss.net/Sample-Chapters/C14/E1-34-05-08.pdf> accessed on 30th.03.2014.
153Eufrecht, Supra note (152) at 7.

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SECTION 5: THE OBJECTIVES OF THE PRINCIPLEOF RULE OF LAW
After the end of World War II in 1945 victorious countries including USA, France, Russia and
Britain with an idea from United States President established international military
tribunals.154This had the purpose of trying some Germany and Japanese major war criminals in
Nuremberg and Tokyo Military tribunals.155Thus this served as a beginning of new international
order to reflect the principle of rule of law.156
The trial served as a future deterrence to all political leaders and military personnel never to take
up arms aimlessly to breach international peace violating peoples’ rights hence preserving the
rule of law.157 During the same year the international community decided to convene in San
Francisco to form international organization.158 As a symbol of unity the organization was to
help many if not all states to work together in peace hinging to the principle of rule of law.159
They created United Nations to hinder any state or individual wishing to abuse power by over
stepping to their national authority and cause unnecessary human suffering.160 Once this was
achieved, the objective of the rule of law would be realized.161 Thus the charter of United
Nations included rule of law to secure peace, harmony and safeguard fundamental rights of
world’s population against arbitrary acts hence reflecting on the principle of rule of law.162
In respecting the principle of rule of law as define in all the protocols being Delhi declaration,
Lagos protocol.163 More attention was paid to Arusha protocol purposely to restore unity in
154A. Mierzejewski, The Collapse of the Germany War Economy, 1944-1945:Allied Air Power, 1stEd (North
Carolina:TheUniversity of North Carolina press,1988) at31<http://books.google.rw/books?hl.php> accessed on
2nd.04.2014.
155 Nuremberg Charter (London Agreement) of 8thAugust 1945 in Preamble.
156Ibid.
157Nuremberg Charter (London Agreement) of 8thAugust 1945,Art. 3.
158 Charter of United Nations of 1945 in Preamble.
159 Ibid.
160 Charter of United Nations of 1945,Art. 2(4).
161 Charter of United Nations of 1945,Art. 27.
162 Charter of United Nations of 1945, Preamble.
163 The Office of United Nations High Commissioner for Human Rights, “Rule of Law Protocols for Post-Conflict
States” (New York and Geneva, 2009) <http://www.ohchr.org/Documents/Publications/Amnesties_en.pdf>

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Rwanda where the aspect of reconciliation was sorely needed to promote rule of law.164 It was
the principle of rule of law which could serve a particular importance though it failed to control
the illegal acts that were perpetrated in Rwandan territory.165 Fortunately peace was promoted
later showing the purpose of the rule of law.166
If the protocol after the negotiations was respected the principle could have ensured that all the
problems regarding national unity notably ethnic, regionalism and intolerance were checked
hinging on the principle of rule of law.167
These Obstacles had subordinated the national interests which would have helped local people to
live together in peace and harmony hence the importance of rule of law.168 The fact that Arusha
protocol was being a part of the fundamental laws in Rwanda, all people were to be bound by its
provisions without discrimination thus implementing objective of the principle of the rule of
law.169 In all the protocols of rule of law, there appeared a continuation of rule of law to ensure
fundamental rights of people by respecting the practices of democracy.170 This had an objective
of reflecting on the principle of rule of law.171
Rule of law is realized in most cases with presence and effective separation of powers where
each organ should be independent from each other.172 It should be recommended that, although
emphasis was put on separation of powers the question to a raise is whether there is existence of
pure separation of powers?173 Whether no pure separation of powers, whichever exists is a
positive trend showing how the society implements the principle of rule of law.174
164 Annex II of Arusha Protocol on ruleof lawof 1992,Art. 2.
165Annex II of Arusha Protocol on Rule of Law of 1992, Preamble & art. 1.
166 Annex II of Arusha Protocol on Rule of Law of 1992,Preamble.
169Annex III of the Arusha protocol on Rule of Law of 1993 art. 2.
170 Charter of United of 1945 in Preamble.
171 G. Smith, “Rule of Law Emphasis”<http://www.un.org/constitutional/governance/emphasis/rule-of-law.html>
172Annex III of the Arusha Protocol on Rule of Law, Art. 6 (1).
173 B. Ackerman, “The New Separation of Powers” (2000) 113 J. Harvard Law Review 633 at 712
<http://www.jstor.org/stable/1342286?-redirected.html> accessed on 8th.04.2014.
174 T. Persson,G. Rolland & G. Tabellin,“Separation of Powers and Political Accountability”(1997) 112 Quarterly J.
Econ 1163 at 1202 <http://qje.oxfordjournals.org/content/112/4/1163.short.hml> accessed on 8th.04.2014.

19
The rule of law ensures that the fundamental human rights especially the right to liberty which
should be written and entrenched in the constitutions of all countries.175 Thus this would mean
the importance of rule of law.176Such personal liberty should not in peace time be restricted
without trial in courts of law.177
Writing and entrenching fundamental human rights and liberties in all constitutions would need a
proper practice of such rights reflecting the importance of rule of law.178 The respect for
fundamental rights and liberties should always be guaranteed whether in peace or during war
time.179 Clear punishments in case of massive violations of these rights should be set before
hence this reflects the importance of rule of law.180
Furthermore, the principle of rule of law guarantees the existence of an effective functioning of
government with exclusive capacity of maintaining law.181 It extends to keep order and ensuring
strong social and economic conditions with welfare of people in the society.182 However, there is
a consideration in all declarations on rule of law which gave a standard meaning to rule of law in
collaboration with the doctrines of academic scholars hinging on the role of principle of rule of
law.183
SECTION 6: THE SOURCES OF THE PRINCIPLE OF RULE OF LAW
The principle of rule of law applies to both national and international levels.184 At national level,
United Nations supports a rule of law framework that includes a constitution or its equivalent as
the highest law on the land.185
175 Raz, Supra note (35) at 187.
176 Ackerman, Supra note (173) at 697.
177 Stoner, Supra note (100) at 29.
178 H. Hangeul, “How is International Human Rights Law Enforced” (1998) 74 J. Int’l HRts Law 1397 at 1401
<http://www.heinoline.org/Hol/Landingpage/journal/on/human/rights/law.hml >accessed on 8th.04.2014.
179 Hangeul, Supra note (178) at 1406.
180 A. Tanja Borzel & T. Risse,Workshop on Democracy Promotion, “European Union Policies,for Promotion of
Human Rights, Democracy and the Rule of Law” (Stanford University:October 5, 2004) at 28.
181 Y. Dezalay & M. Rask Madsen, “The Force of lawand Lawyer” (2012) 8 J. Int’l Law 433 par 440
182 Dezalay & Madsen, Supra note (181) at 442.
183 T. Carothers,“The Rule of Law Revival”(1998) 7 Int’l Journal on HRts 95 at 97
<http://www.heinoline.org/Hol/Landingpage/journal/on/rule-of-law.html> accessed on 8th.04.2014.
184 Charter of United Nations of 1945, Preamble.
185Charter of United Nations of 1945,Art. 4.

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The constitution should have a clear and consistent legal framework together with
implementation of strong institutions of justice, governance and security.186 The structure of
human rights that is well developed and financed hence figures out source of rule of law.187
Thus Sources of rule of law dates far from all international, regional and national legislatives
which in many cases site different aspects that are related to law itself.188 All several legal sites
are clear sources of rule of law.189
1. International Instruments;
 Magna Carta of 1215
Rule of law as a fundamental principle has been affirmed in constitutional and international
instruments as old as Magna Carta.190 It sets out the rights of various classes of a mediaeval
community.191 People were to live according to their different needs where the church was to be
free; London and other Cites were to enjoy their liberties and customs hence it dates the source
of rule of law.192
The Merchants were not to be subject to unjust taxation, there was a famous clause which stated
that, no man should be punished except by the judgment of his peers.193 This reflected the source
of the principle of rule of law.194The Magna Carta asserts that none should be denied justice.195
The above clauses embodied protection against arbitrary punishment and emphasized much on
fair trial by jury and to free justice hence entails the source of rule of law.196
186 P. Boom, “Human Rights and Rule of Law: Whatis the Relationship”(2004) 20 J. Law Review par 80
<http://www.law.bepress.com/cgi/viewcontent.cgi?article/on/rule-of-law.php> accessed on 10th.04.2014.
188 Boom, Supra note (186) at 85.
189 Boom, Supra note (186) at 87.
190V. Ralph Turner “History Today”<http://www.historytoday.com/ralph-v-turner/meaning-magna-carta-
191 M. Ohnesorge, “Source of Rule of law” (2007) 3 J. Int’l Law 99 at 114.
192The Biography of KingJohn, “Rule of Law” <http://www.lordsandladies.org/magna-carta.htm> accessed on
12th.04.2014.
196 G. Murphy ”Magna Carta” <http://www.constitution.org/eng/magnacar.htm> accessed on 12th.04.2014.

21
The observance of Magna Carta came to be regarded by both lawyers and politicians as synonym
for constitutional governments.197 Thus this principle is not a new concept since it dates as far
back as a period of 1215 reflecting the source of rule of law.198
 Charter of United Nations of 1945
Today, the concept of rule of law is embedded in the charter of the United Nations as a source of
law.199 In its preamble one of the aims of the charter is to emphasize the principle of rule of law
in “establish conditions under which justice and respect for obligations arising from treaties and
other sources of international law can be maintained” hence reflects the source of rule of law.200
The United Nations primary purpose is to maintain international peace, security and bring about
peaceful means in conformity with the principles of justice.201 It adjusts settlement of
international disputes which might lead to a breach of the peace hence source of rule of
law.202This is in conformity with Universal Declarations of Human Rights of 1948 as a historical
source of rule of law.203
International recognition that all human beings have fundamental rights and freedoms dates the
source of rule of law.204 It recognizes that “It is essential if a man is to be compelled to have
recourse as a last resort to rebellion against tyranny and oppression, thus dates the source of rule
of law.205
 International Congress on rule of law Athens 1955
This was the first commission of Jurists from forty eighty countries around the world that
convened in Athens to consider the minimum safeguards as a necessity to ensure the source rule
197S. De Smith & R. Brazier, Constitutional and Administrative Law, 7th Ed (London: Penguin Group Ltd, 1994) at 18.
198De Smith & Brazier, Supra note (197) at 20.
199Charter of United Nations of 1945, preamble.
200Ibid.
201Ibid.
203 Universal Declaration of Human Rights of 1948, Preamble.
204Ibid.
205Universal Declaration of Human Rights of 1948, Art. 1.

22
of law.206 It extends to the protection of individual rights and freedoms against arbitrary actions
by the state officials and individuals to reflect the source of the rule of law.207
The result of this congress was to accept the Act of Athens as a turning point to the respect of the
principle of rule of law hence becoming the source of rule of law.208
 Declaration of Delhi on rule of law of 1959
This was the second session of international commission of Jurists affiliated to United Nations
Science and Cultural Organization (UNESCO) to reflect source of rule of law.209 In 1959 over
185 judges, Lawyers and law professors from 53 countries met in Delhi for international
commission of Jurists.210 They made a declaration on fundamental principles of rule of law thus
dating the source of the rule of law.211
Delhi declaration on the rule of law implies respecting certain rights and freedoms which reflects
the source on idea of rule of law.212 Declarations emphasized on governance which promotes
social, economic and cultural conditions hence reflects source of rule of law.213
The declaration was credited to have deeply dug rule of law as a source of conflict management
with strategy and foundation to safeguard the fundamental rights and liberties hinging source of
the source of the rule of law.214The declaration suggests that rule of law requires legislative
power to be subject to judicial review hence reflecting source of rule of law.215
206 B. Howard el al, The International Commission of Jurists: Global Advocates for Human Rights (Athens: Greece,
1955) at 23.
207 Howard et al,Supra note (206) at 28.
208J. Marsh,The Rule of Law in a Free Society (New Delhi: India,1959) at5.
209J. Kunz, “The ChangingScience of International Law” (1962) 56 American J. Int’l Law 488 at 492
<http://www.jstor.org/stable/2196451?-redirected> Accessed on 12th.04.2014.
210 Marsh,Supra note (208) at 16.
212J. Redheesh ‘Rule of Law Declaration”<http://www.new-delhi-made-declaration-of+1959+on-the-rule-of-
law.thml> accessed on 14th.04.2014.
214 Kunz, Supra note (209) at 496.
215G. Ginsburgs,“Peking-Lhasa-New Delhi” (1960) 75 J. Political ScienceQuarterly 338 at354
<http://www.jstor.org/stable/2146387.hml> accessed on 14th.04.2014.

23
 Lagos conference on rule of law of 1961
This was an African conference on the principle of rule of law which had a purpose of helping in
restructuring the debate on rule of law.216 Hence this conference reflected the source of the
principle of rule of law.217 The debate was under aegis of international commission of Jurists and
it comprised of 194 judges, practicing lawyers and lectures from law universities.218 Many were
from African countries and few from other continents.219 It did reach some significant and
detailed conclusions on special aspects of rule of law.220
2. Advisory Opinions
This is taken to be opinions of different academic scholars, authors and writers who worked hard
to leave behind papers, journals, book and other forms of writings to serve as a legacy and source
of rule of law.221 He gave the principle a theoretical foundation digging the source of rule of law
from the Latin phrase Lex, Rex meaning “The law is king and should be applicable to any
national and international conflict that restrict freedom.”222 British jurist was the most influential
writer of the modern development on legal concept that has been traced through history of many
ancient civilizations thus reflects the source of rule of law.223
In 1690, the author of the second treatise of government said that rule of law govern everything
on the land. In 1748, in the ‘the spirit of laws,’ the writer emphasized on supremacy of law.224 In
1755, Samuel Johnson phrased ‘rule of law dictionary’ to complement the work of other
authors.225
216 International Commission of Jurists, African Conference on Rue of Law: Lagos, Nigeria (Geneva, 1961) at 14.
217 International Commission of Jurists, Supra note (216) at 16.
218 A. Mathews, Freedom, State Security and Rule of Law, Ed (California:University of CaliforniaPress,2007) at47.
219 Mathews, Supra note (218) at 50.
220 International Commission of Jurists, Supra note (216) at 30.
221 R. Commons, Legal Foundations of Capitalism, 2d Ed (New York: The Macmillan Co.Ltd, 1924) at 394.
222A. Verdross,“Jus Dispositivumand Jus Cogens in International Law” (1966) 3 J. Int’l Law 55 at 56.
<http://heinonline.org/HOL/LandingPage?handle=hein.journals/ajil56&law.hml >accessed on 14th.04.2014
223Dicey, Supra note (85) at 96.
224J. Locker, The Second Treatise of Civil Government, 1sted (Cambridge: ChristCollegePress,1969) at 53.
225T. Pain,The Common Sense, 1st ed (Philadelphia:University of PennsylvaniaPress,1776) at57.

24
In 1980, rule of law was enshrined in the Massachusetts Constitution by seeking to establish “a
government of laws and not of men hence all these emphasis shows source of the principle of
rule of rule.226
The Roman statesman said that “We are all servants of the laws in order we may be free” this
challenged many roman to the extent that during roman republic.227 It limited the power of
magistrates who would be put on trial when their terms of office expired.228 During this period in
the Roman Empire, the sovereign was personally immune (Legibus Solutu) but those with
grievances could sue treasury.229 In 1215, Archbishop Stephan Langton gathered the Barons in
England and forced the king John to follow rule of law thus, this reflects source of rule of law.230
This scared future sovereign and magistrates back under the rule of law purposely to preserve
ancient liberties as seen in the James I’s petition of England.231 One scholar was of the view that
rule of law is an ideal to which appeals are regularly made.232 This was a clear manifestation that
rule of law existed thus the above petition serves as its source.233
3. Constitutions
A constitution is normally a document having a special legal sanctity which sets out the
framework and the principle functions of the organs of government.234 It is a state which
declares the principles governing the operations of all organs, institutions and state activities.235
226J. Adams, “Massachusetts Constitution”(1780) 8 American Law Journal 229 at230.
<http://www.masshist.org/publications/apde/portia.php?mode=p&id=PJA08p231.hml > accessed on 14th.04.2014.
227M. Tullius Cicero,“LawQuotations” <http://www.poemhunter.com/quotations/famous/marcus%20tullius%20
cicero.html> accessed on 14th.04.2014.
228J. Linder Silber man, “Masters and Magistrates PartII:The American Analogy” (1975) 50 NY. Law Rev. 1297 at
1297 <http://heinonline.org/HOL/LandingPage?handle=hein.journal&page.php> accessed on 15th.04.2014.
229B. Tamanaha,Rule of law: History, Politics and Theory, 4th Ed (London: Cambridge University Press,2004) at 60.
230Tamanaha,Supra note (229) at 72.
231 J. Evans et al,Administrative Law Cases, Text and Materials 4th Ed (London: Sweet and Maxwell, 1995) at 27.
232 Evans et al,Supra note (231) at 31.
233 Evans et al,Supra note (231) at 34.
234Oxford Dictionaries,“The Constitution”
<http://www.oxforddictionaries.com/definition/english/constitution.htm>accessed on 15th.04.2014.
235C. Thomas Grey, The Constitution as Scripture, Vol. 37, No. 1 (Stanford: Stanford Law Review, 1984) at 20.

25
The Constitution is a document antecedent to government and a government is only the creature
of a Constitution.236 A constitution of a country is not the act of its government but of the
people constituting a government hence, this reflects source of rule of law.237
Constitution is the body of elements to which you can refer and quote article by article.238 It
contains the principles upon which the government shall be established, the manner in which it
shall be organized, the powers it shall have.239 It lays the mode of elections, the duration of
parliaments or the powers in which the executive exercise its duties hence, the definition reflects
the source of the principle of rule of law.240
According to other authors, a constitution is defined as a document that lays down the structure,
organs, functions and powers of the government as well as setting out limits in form of civil
liberties.241 Many countries have an element of rule of law, for instance Rwandan constitution of
2003 as amended up to date.242 The Constitution bears the fundamental principles of human
rights which show clearly the source of the principle of rule of law.243
4. Protocol on rule of law of 1992
This agreement between Rwandan government and Rwandese patriotic frontier in 1992-1993 on
rule of law was strictly to reflect and restore national unity, democracy, pluralism and more
importantly respect for human rights.244 Thus one would say that, this was the first time in the
history of Rwanda ever since the period of monarchism to introduce the concept of rule of law
which meant the reflection on source of the principle of rule of law.245
236 Thomas, Supra note (235) at 25.
237 Pain,Supra note (225) at 62.
238 Thomas, Supra note (235) at 24.
239 The Free Dictionary,‘Definition of the Constitution” http://www.thefreedictionary.com/constitution.hml.
240T. Pain ”Meaning of Constitution”<http://www.quod.lib.umich.edu/e/=fulltext-constitution.html> accessed on
15th.04.2014.
241Dictionary.Com“Meaning of the Constitution” <http://dictionary.reference.com/browse/constitutional.hml>
243 The Constitution of the Republic of Rwanda of 2003 (O. G. No. Special) as amended up to date Art. 10 -45.

26
The principle used to be in the theoretical mythology, though the protocol did not contribute
much as expected in the agreement.246 The reason was due to government which was reluctant to
the extent of not stopping political conflict in 1990s.247 The protocol laid a firm foundation for
the successor government to reflect the plans of the protocol a thing that brought a transition
period of peace, harmony, national unity and community prosperity with respect to the principle
of rule of law.248
SECTION 7: THE PRINCIPLE OF RULEOF LAWWITH RELATED CONCEPTS
The concept of principle of rule of law can never work properly without related concepts which
seem to be inseparable in as a far as rule of law is concerned.249 Among these closely inter-
twinned concepts are, democracy, accountability, good governance.250 Human rights is also
closely related to rule of law, this universal principle overlaps over all other concepts which a
state would possess, for it to run its activities.251 It helps in a proper and smooth functioning of
other institutions operating under the state which reflects rule of law.252
Rule of law explores and connects all these issues by encompassing the work which is done in
general jurisprudence on the concept of law.253 It emphasizes on certainty, rules, and
predictability of society actions in line with conceptions of the rule of law that also facilitates the
procedure on how government reacts towards them relating to the rule of law.254
§1: Rule of law and Democracy
This concept of rule of law has very broad definition and interpretation.255 It becomes very
difficult when estimating the interrelationship with other concepts especially the Greek concept
247 Mamdani,Supra note (46) at 185.
248 Annex II of Arusha Protocol on ruleof lawof 1992,Art. 2.
249 Tanja & RisseSupra note (180) at 31.
250 Tanja & Risse, Supra note (180) at 20.
251 Tanja & Risse,Supra note (180) at 22.
252 D. Kennedy, “The International Human Rights Movement: Partof the Problem” (2002) 15 Harvard Human Rights
Journal 101 at 104.
253 Boom, Supra note (186) at 89
254J. Waldron,“The Concept and Rule of Law” (2008) 8 Int’l HRts. J. 56 at 67
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273005>accessed on 20th.04.2014.
255 Anter, Supra note (103) at75.

27
of democracy.256 However, democracy has been given a modern name termed as liberal
democracy.257 Liberal democracy is held to be a combination of two sets of institutions one that
ensures government to be accountable to popular choice and another that provides for a rule of
law as its relationship.258
The liberal democracy has been historically perceived as a couple of rules which renders justice
and binds the community together into one thinking basket.259 If it is fully practiced and passed
to unlimited number of generations, it brings immediate measurements with quantifications of
long term development in the society which links this development with rule of law.260
§2: Rule of law and Good governance
Rule of law is a pillar to good governance and is hedged in by a constitution that reflects rules
which provides for governance, uncomplimentary interchange between traditional and modern
socio-political orientation.261 Dysfunctional relationship among three arms of the government,
like the rule of law in governance should realize autonomy of the judicial arm which is normally
eroded and this will depict the link between governance and rule of law.262
Good governance and governance itself is a new buzzword in the discourse.263 These phenomena
brought contrast to other law governed societies but Western Europe was exceptional insofar as
law was institutionalized earlier and to a higher degree than elsewhere.264
256Anter, Supra note (103) at77.
257 R. Barry Weingast, The Political Foundations of Democracy and the Rule of Law, Vol. 91, No. 2 (Stanford:
Stanford University Press,1997) at245.
258R. Rigobon & D. Rodrik,“Rule of Law, Democracy, Openness and Income” (2005) 13 RLDOI 533 at 564
<http://onlinelibrary.wiley.com/doi/10.1111/j.1468-0351.2005.00226.x/full.html> accessed on 16th.04.2014.
259J. Habermans,“On the Internal Relation between the Rule of Law and Democracy” (2008) 3 EU. Journal
Philosophy 12 at20 <http://onlinelibrary.wiley.com/doi/10.1111/x/abstract;jsessionid.hml >accessed on
20th.04.2014.
260A. O’Donnell, “Why Rule of Law Matters” (2004) 15 Journal of Democracy 32 at 44
<http://muse.jhu.edu/journals/jod/summary/v015/15.4odonnell.html >accessed on 20th.04.2014.
261M. Johnston, Good Governance, Rule of Law, Transparency and Accountability, (New York: Colgate University
Press,2003) at 6.
262A. Udochukwu Ogbaji, Human Rights, Rule of Law and Governance: The Nigeria Paradox (Anambra State: Nwafor
Orizu College of Education printingpress,1997) at 2.
263 United Nations, International Monetary and Financial Issues for 1900s, Vol. 11 ( New York/Geneva: United
Nations Publications,1998) at83.
264Udochukwu, Supra note (262) at 6.

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This was purposely to reflect the 1990’s born concept of good governance thus called for
codification and legal specialization with institutional autonomy to link good governance and
rule of law.265
The great emphasis came from World Bank and other financial institutions to reflect
correspondence between law, public sector and social norms thus achieving desirable
governance.266 This relationship should always check uncomplimentary and dysfunctionality of
rule of law which may lead tragic regimes to consequently cause political instabilities hence, if
these links are respected good governance will always need rule of law.267
§3: Rule of law and Accountability
It has been difficult for many social and legal scholars together with state politicians to assess
properly the meaning of the phrase “Accountability” thus some confuse it with public sector
identity management.268 Although others refer it as the processes, norms, and structures that hold
the population and public officials legally responsible for their actions and that impose
sanctions if they violate the law.269 Rule of law will always ensure accountability which will help
to check all political and social malpractices to create a reasonable society following principle
norms hence the link between accountability and rule of law realized.270
Accountability is essential if systemic threats to the rule of law are to be corrected, it equals to
transparency, legal frame work and it is the key component to a prosperous state following rule
of law.271
265 United Nation, Supra note (263) at 84.
266E. Kofi,Global Environmental Governance: Law and Regulation for 21st Century (London: Edward Elgar
PublishingCo.Ltd, 1999) at 56.
267 F. Walter,D. ClaireMair & A. Mair, Good Governance: Policy Paper, Eds (Vienna: Austrian Development
Cooperation, 2011) at 8.
268 Murphy, Security Council Report, The Rule of Law: The Security Council and Accountability (New York, January
18, 2013) <http://www.securitycouncilreport.org/cross-cutting-report/the-rule-of-law> accessed on 20th.04.2014.
269I. Tommy, ‘Centre for Accountability and Ruleof Law” <http://www.carl-sl.org/home.html> accessed on
20th.04.2014.
270 Ibid.
271 X. Zhai & M. Quinn,Bentham's Theory of Law and Public Opinion 2d ed (London: CambridgeUniversity press,
2011) at 42 <http://ssrn.com/abstract.html> accessed on 20th.04.2014.

29
In some countries like India, that has the largest number of poor people in the world and ranked
among the most corrupt nations.272 Rule of law can help to reduce this problem of corruption
hence the link between accountability and rule of law.273
Rule of law would involve fighting corruption improving beaucratic, political accountability
through promoting people’s participation and public-private partnership providing room for right
to development.274 This relationship show how accountability cannot be achieved without
effective implementation of the principle rule of law.275
§4: Rule of Law and Human Rights
Introducing the principle rule of law would mean respect for human rights by analyzing
constitutional and extra-constitutional governance which encompasses universal rights enabling
qualities attached to human beings as it was phrased in Magna Carta.276 Magna Carta is believed
to have been the first document which compiled the rules that issued the coercive means of
respecting of fundamental liberties of people and this showed the link between rule of law and
human rights.277
This was the first document which contains commitments of human rights by a sovereign to his
people in respect to legal framework, rule of law and it never ruined governance from then.278
The issue of human rights and law itself descended from the philosophical ideas of natural right
that are provided by God.279 These rights are preserved for the public good as a consideration of
human rights hence this reflects the relationship between human rights and rule of law.280
272 Zhai & Quinn,Supra note (271) at 47.
273 B. Magaloni & A. DiazCayeros, Democratic Accountability and Rule of Law in Mexico, Eds (Stanford University
Press,1993) at 4.
274J. Gerald Postema <http://www.usip.org/guiding-principles-reconstruction/rule-law/accountability.html>
275 Magaloni & Cayeros, Supra note (273) at 6.
276C. Apodaca, “The Rule of Law and Human Rights” (2004) 87 Journal Int’l HRts 292 at 297.
277 Apodaca, Supra note (276) at 300.
278R. Chowdhury, Subrata, Rule of Law in a State of Emergence: The Paris Minimum Standards of Human Rights
Norms in a State of Emergence, (New York: St. Martin’s Press,1989) at204.
279 J. Kamenka & Tay, Human Rights, Legal Rights and Social Change, ed (London: Edward Arnold Kalagbor press,
2010) at 41.
280 Kamenka & Tay, Supra note (279) at 44.

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Many academias especially from socio- legal sphere concede that human right is something
broader in scope than a common regime of property rights.281 In civil law system which puts
more emphasis on liberties, it became a focus of most academic literature on the subject.282 The
scope should overlap towards the universally accepted principle of rule of law in the global
world to realize the link between human rights and rule of law.283
SECTION 8: CONCEPTAND THECONTENT OF THERIGHT TO DEVELOPMENT
The concept of the right to development is controversial phenomena with many complex and
vague meanings which exposes it to many commentators.284 Defining the right to development is
as hard as defining a right itself. This makes it hard for academic, political and social researchers
to dispute whether the right to development is a right at all.285
The meaning of the right to development has been in a number of sources like Charter of United
Nations 1945.286 The Universal declaration of Human Rights of 1948 made the unity of all
human rights such as political, social and cultural rights together.287 It elaborated the theme that
everybody was equally entitled "to all the rights and freedom set forth in that Declaration.288 The
declaration specifies some articles which covers civil and political rights.289
The declaration further specifies some other articles that cover economic, social and cultural
rights.290 In the preamble of each of the International Covenants on Human Rights, this right was
reiterated as, "the ideal of free human beings enjoys civil and political freedom.291 Freedom from
281 M. Ignatieff,Human Rights: As Politics and Idolatry, 3d Ed (New Jersey: Princeton University Press,2003) at 22.
282 Ignatieff, Supra note (281) at 25.
283A. O. Oyalobi,“Constitutionalism,Governance and Rights of Man in Nigeria”(2010) 4 J. HRts. Law 65 at 71
<http://www.slideshare.net/Udojoel/human-rights-human-rights.html> accessed on 22nd.04.2014.
284 Ignatieff, Supra note (281) at 17.
285 D. Banisar etal, Moving from Principles to Rights: Rio 2012 and Access to Information Public Participation and
Justice, Vol. 2 (Rio de Janeiro: United Nations Doc, 2012) at8.
287Universal Declarationsof Human Rights of 1948, Art. 1.
288 Universal Declaration of Human Rights of 1948, Art. 17.
289 Universal Declaration of Human Rights of 1948, Art. 21.
290 Universal Declaration of Human Rights of 1948, Art. 22-28.
291International Covenants on Human Rights of 1966 and 1977 in their preambles .

31
fear and want can only be achieved if conditions are created where everyone enjoys his civil and
political rights, as well as his/her economic, social and cultural rights."292
All the international instruments did not clearly define the right to development till 1981.293
African Charter on Human and Peoples Rights first recognized this right in its article 22 as a
definitive individual and collective right.294 The Charter provides that; "All peoples shall have
the right to their economic, social and cultural development with regard to their freedom, identity
and in the equal enjoyment of the common heritage of mankind.295 It further states that; States
shall have the duty, individually or collectively to ensure the exercise of the right to
development."296
The right to development evolved gradually for some years till it became a powerful force in
many parts of the world.297 The concern gained much of sociological work and captured the
attention of international awareness which shifted its substantial efforts to the current legal
systems.298 Sociologists continued their advocacy movement and manifestation of the right to
development as a collective individual pathology.299 They assert that; a right is shaped by
individual’s interaction with states hence explaining the right to development.300
In 1986 International community delegations represented by United Nations decided to convey
in Geneva Switzerland.301 They passed a resolution number 41/128 as a declaration on the right
to development which contains ten (10) articles.302
292Ibid.
293African Charter on Human and Peoples Rights of October 21,1986 Preamble.
294 African Charter on Human and Peoples Rights of 1986 Preamble.
295 African Charter on Human and Peoples Rights of 1986, Art. 22 (1) & (2).
296African Charter on Human and Peoples Rights of 1986, Art. 2.
297 P. Alston, “Making Space for New Human Rights: The Caseof the Right to Devel opment” (1998) 1 Harvard
Human Rights Journal 3 at 6.
298 Mr. O. De Schutter, Promotion and Protection of all Human Rights: Including the Right to Development, Tenth
Session,Agenda Item 3 (New York: Human Rights Council,2009) at29.
299 Alston, Supra note (279) at8.
300M. Kathleen Blee & Kimberly A. Creasap,“Conservativeand Right to Development Movement” (2010) 20 J. Int’l
HRts 60 par 74.
301 United Nations Declaration on the Right to Development of 1986, Preamble.
302United Nations Resolution Number 41/128 of 1986.

32
All the articles are explain, emphasize and clearly distinguishes the right to development from
other social-economical and political rights giving it much gravity as indivisible right.303 All
these were done to elaborate more on the right to development.304
It deliberately recognizes the right to development as; comprehensive economic, social, cultural
and political process.305 The recognition aims at the constant improvement of the well-being of
the entire population realizing the right to development.306The declaration was to uplift all
individuals on the basis of their active, free and meaningful participation in development.307
The declaration extended its importance in the fair distribution of benefits resulting from
peoples’ efforts and emphasized states that it is their primary responsibility to create favorable
conditions for the development of peoples’ and individuals toward the right development.308 The
United Nations declaration defined the right to development in declaration as; “an inalienable
human right by virtue of which every human person and all peoples are entitled to participate in,
contribute to, and enjoy economic, social, cultural and political development.309
The Declaration stipulates that; all human rights and fundamental freedoms can be fully realized
in accordance with states’ legal systems.310 It continued in declaration and asserted that; the
human right to development also implies the full realization of the right of peoples to self-
determination.311 The declarations includes subject to the relevant provisions of both
International Covenants on Human Rights and the exercise of their inalienable right to full
sovereignty over all their natural wealth resources.312
303 The Geneva Assemble (Res. 47/181) on Policy Shiftof the Right to Development of 1992.
304 Ibid.
305 K. Iqbal,The Declaration on the Right to Development and Implementation, Vol. 1 (Ulster: University of Ulster
Press,2007) at 9.
306B. Bankie,C. Marias & J. T. Namiseb, Towards Creating a Sustainable Culture of Human Rights, (Paris:Unesco,
1998) at 19.
307 S. Vijayashri, India’sNational Human Rights Commission: A Shackled Commission, Vol. 1 (Boston,
Massachusetts:Boston University Press,2000) at 7.
308United Nations Declaration on the Right to Development of 1986.
309 United Nations Declaration on the Right to Development of 1986, Art. 1.
310United Nations Declaration on the Right to Development of 1986, Art. 2.
311 United Nations Declaration on the Right to Development of 1986, Art. 1 (1).
312 United Nations Declaration on the Right to Development of 1986, Art. 1 (1).

33
In the Rwandan constitution, the right to development is not explicitly defined though somewhat
recognized and emphasized in some related articles of fundamental human rights.313
§1: History and Evolution of the Right to Development
Tracing the history of the right to development is like trying to dig the history of mankind and
history of human rights themselves.314 Some scholarly writings have tried to pass philosophical
academic arguments on the concept.315 This is seen in academic statement of a Senegalese Jurist
Keba M’baye who compared history of the right to development in these asserts; a philosopher is
a person who goes into a dark room on a moonless night to look for a nonexistent black cat.316
A theologian comes out claiming to have found the ct.317 A human right lawyer, after such on-
site visit, sends a communication to the commission on the human rights where a member of the
commission leaves the room drafting a resolution on the treatment of black cats.318 This is
uncomfortably close history of the right to development.319
It is clear that historical development of human rights dates from the western world far back
before and even during declarations of Magna Carta in 1215.320 It gained its momentum during
eighteenth century a period when there was a waning influence of the monarchy and the growing
power of the ordinary citizen.321
The Magna Carta represented an idea of human rights based on individual rights to life, liberty
and personal security.322 It is important to also acknowledge that many of the core elements of
human rights were present in non-western societies and other parts of the world from ancient
313The Constitution of the Republic of Rwanda (O.G. No. Special) of 2003 as amended up to date Art. 47.
314 G. Rist,The History of Development from Western Origins to the Global Faith, 1st ed (London: Zed Books Ltd,
1997) at 171.
315 Rist,Supra note (314) at 179.
316 J. Donnelly,“The Jurisprudenceand Politicsof the rightto development” (1985) 15 J. IHRts 473 at 480
<http://heinonline.org/HOL/LandingPage?handle=hein.journals/calwi.html>accessed on 24th.04.2014.
317 Donnelly,Supra note (316) at 482.
320 P. Linebaugh, The Magna Carta Manifesto: Liberties and Commons for All, Ed (Los Angeles, California:University
of CaliforniaPress,2008) 170.
321M. Grossman,History of Advocating for Human Rights, ed (New York: Brill Books & Journals press,2007) at170.
322 Linebaugh, Supra note (320) at 178.

34
times.323 The example given is found in Asia, Africa and many others parts where the right to life
was the most recognized right and it was absolutely attributed to the king who could authorize
any deprivation of this right.324
Human rights are, and have been a topic of controversial in international politics.325 When the
Allied nations, the founders of United Nations met to develop a charter for new organization,
articles on human rights protections were formulated only with some reluctance.326 More than
other policy areas, the issue of human rights protections show the tension between the principles
of state sovereignty and supranational governance.327 In particular, the reluctance of the USSR
and Great Britain to cede to the United Nations any competence that could violate state
sovereignty led to the present wording of human rights articles.328
Shortly after the end of World War II, the Allied powers agreed to form United Nations in 1945,
few years after realizing the failure of League of Nations.329 Since then, there has been an
international advocacy and concern for civil and political rights to often be termed as the first
generation of rights.330 The second generation was the demand for economic, social and cultural
rights.331 Contemporarily a third generation of rights has been recognized as increasingly
important to reflect the right to peace, development and environmental protection.332
The right to development came as a fundamental human right recognized in the Charter of the
United Nations where it undertakes to call upon states to cooperate and promoted this right.333
323 Linebaugh, Supra note (320) at 184.
324P. Alston, People’s Rights, Ed (Oxford University Press,New York, 2001) at 91.
325 Magaloni & Cayeros, Supra note (273) at 4.
327 M. Lewis, “Reconcilingthe Tension between Human Rights and International PublicOrder”(1995) 63 J. Int’l Law
585 at 585.
328 S. Bernhard Gareis, Die Vereinten Nationen: Aufagaben Instrumente Und Reformen (Leske + Budrich:Opladen,
2003) at 178.
329 Evening Standard News Paper, “Why the League Failed”(London, November 11, 1938).
<http://www.johndclare.net/league_of_nations8.htm> accessed on 24th.04.2014.
330C. Tomuschat, Human Rights: Between Idealism and Realism, 2d Ed (New York: Oxford University Press,2008) at
26.
331 Tomuschat, Supra note (330) at 28.
333 Charter of the United Nations of 1945 in its preamble, art 1 & art 55c.

35
The Cold war brought about political climate of mistrust that led to establishment of two separate
human rights covenants.334 The civil and individual human liberties promoted by the West and
participatory rights by the East.335
The “right to development” is seen by its advocates as a bridge between these two sets of
rights.336 It is a right that through its participatory nature guarantees the enjoyment of individual
civil liberties.337 The right to development was not part of the bill of rights as defined in the first
year of the United Nations.338 It occurred neither in the Universal declarations of human rights
nor in the Covenant of civil and political rights.339 It never appeared in the Covenant on
economic, social and cultural rights.340
In 1957, the issue to develop the right to development was promoted in civil rights act.341 This
was because of the global political situation that was unwilling to promote the right to
development before.342 Politically sketchy as it might be, the debate about the right to
development was still moving forward.343 The birth of this idea of development as a human right
was first promoted in the Philadelphia Declaration of the International Labor Conference in
1944.344
In 1945, the right to development was embodied in the Charter of the United Nations.345 Later, in
1948 it was adopted in the Universal Declaration of Human Rights.346
334 International Covenants on Civil,Political,Economical and Cultural Rights of 1966 and 1977 in preamble.
335 I. Brigitte Hamm, “A Human Rights Approach to Development” (2001) 23 HRts Quarterly 1005 at 1031.
340 A United Nations Priority “Universal Declaration of Human Rights”
<http://www.un.org/rights/HRToday/declar.htm> accessed on 26th.04.2014.
341 History LearningSite, “The 1957 Civil Rights Act”
<http://www.historylearningsite.co.uk/1957_civil_rights_act.htm>accessed on 26th.04.2014.
342International Human Rights, International Bill of Human Rights, Vol. 1 (Geneva: International Human Rights
Press,2003) at 30.
343 L. Russel Barsh,“The Right to Development as a Human Right: Results of Global Consultation”(1991) 13 HRts
Quarterly 322 at 328 <http://www.ciesin.org/docs/010-152/010-152.html> accessed on 26th.04.2014.
344 Philadelphia Declaration of International Labor Conference of 1944.
346Universal Declaration of Human Rights of 1948.

36
The right to development was introduced into international debate in 1950s and 1960s by
developing countries of the south.347 These countries were gaining weight in the international
fora after their independence purposely to adopt the right to development.348
This right gained popularity in 1986 when it was adopted in the declaration of the right to
development, though with opposition.349 The consensus was reached in 1993 when 171 member
states unanimously adopted the Vienna Declaration.350 The Program of Action at the world
conference on human right which concluded the right to development, it made reference to the
interdependency and indivisibility of all human rights.351
As it was first defined in the United Nations declaration, it comprised but not concise definition
which has led to anxieties in the most industrialized states that, the right to development could be
seen as the “right to everything.”352 Thus fear to be the duty bearer to identify the declaration on
the right to development at the same time bear the obligation as a state nation and international
community.353 So the debate has been mostly about reaching the narrower and more exact
definition of this right and the duties it invokes.354
Currently, the right to development has transcended the state of soft law.355 As it should be an
international commitment by the governments, they should translate the right to development
into legally binding right.356 The right to development itself is not legally binding instrument, yet
it draws its legal foundation from binding human rights covenants.357
347D. Shiman,Teaching Human Rights (Denver: Center for Teaching International Relations Publications,1993) at6.
348 Shiman, Supra note (347) at 9.
349 United Nations Declaration on the Right to Development of 1986.
350 Vienna Declaration on the Right to Development of 1993.
351 United Nations Human Rights, Officeof the High Commissioner for Human Rights, “World Conference on
Human Rights” (Vienna, June 11, 1993) <http://www.ohchr.org/EN/ABOUTUS/Pages/ViennaWC.aspx> accessed
on 26th.04.2014.
352 United Nations Declaration on the Right to Development of 1986.
353 Shiman, Supra note (347) at 20.
354BM. Leiser & TD. Campbell, Human Rights in Philosophy and Practice, Eds (London: Ashgate PublishingCompany,
2001) at 17.

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