The law states that a tenant who does
not pay the rent on time or rather cannot prove that
it was paid can be evicted and further he loses his
rights to a portion of the land of which he was the
registered tenant. The tenant claimed that he did pay
the rent but was not given a receipt. The LRO, set up
partly to defend the interests of tenants, did not follow
the rule of law and despite acknowledging that the tenant
did not have any proof (receipt) of payment of the rent,
ruled that he could continue as a tenant and warned
him to pay the rent. The Supreme Court, upholding the
decision of the Court of Appeal and strictly applying
the rule of law without fear or favour, cited the law
and precedents to rule that for want of evidence, the
tenant was deemed not to have paid the rent and hence
could be evicted from his tenancy.
The paper demonstrates the following
points: First, strict application of the rule of law
may not always lead to just decision and inversely non-application
may be more just. Second, for a citizen to get justice,
it is not sufficient to have just laws or strict application
of the laws by the courts or administrative bodies because
the legal process, including the execution of the court
decisions, requires economic, political and social resources.
Third, the legal process is not always used to resolve
disputes or to seek justice; on the contrary, it may
be used to prolong disputes, harass the opponent and
to impose unjust decisions.
More generally the case study raises
the question of the relationships between rule of law,
democracy, justice and plural legal situation: Is the
rule of law always twined only with democracy, as the
proponents of liberal democracy claim, or is it also
equally relevant for non-democratic countries? Does
the strict application of rule of law always lead to
justice? Or is it not the case that application of unjust
laws will lead to injustice? Finally, even if the rule
of (just) law is applied and a just verdict is given,
does the winner actually get justice if the decision
is not implemented? And what of situations where justice
according to state law is contradictory to justice according
to other laws (customary law, religious law, local law,
etc.)? In a plural legal situation, justice according
to one law may be experienced as injustice according
to another. How, then, do the people perceive and experience
justice?
Issues raised:
| • |
The Rule of
Law is mainly concerned with upholding procedural
law and not substantive law. |
| • |
Plurality of conceptions
of justice within different organs of the state
|
| • |
The judicial system uses
non-legal considerations to resolve conflicts
(‘legal pluralism’)
|
| • |
The law is used as just
another a weapon in social conflict
|
| • |
Implementation of court
decisions is undertaken by officials at the level
where the dispute arose and therefore the political,
economic and social resources of the disputants
as well as the notions of justice at this level
play an important role in determining whether
and how the decisions of the court will be implemented
|
| • |
Strict application of the
Rule of Law may not always lead to justice and
non-application may be more just |
|
|
|
