THE RULE OF LAW

CONTENTS

1.0      Introduction

2.0      Objectives

• Main Content
• Historical Evolution of the concept of Rule of Law
• Definition of Rule of Law
• Supremacy of the Law
• Equality before the Law
• Enforcement of Rights
• Rule of Law: Nigerian Experience
• Requirements to the Validity of the Rule of Law

4.0      Conclusion.

5.0      Summary.

6.0      Tutor-Marked Assignment

7.0      References/Further Readings.

INTRODUCTION

The “Rule of Law” as a constitutional concept has generated a lot of controversy. The controversy stems from two things: the theoretical aspect of the concept and the practical aspect. The theoretical aspect is linked with the fallbacks or perhaps watertight explanations offered by Albert Venn Dicey, its main exponent. The main criticism as we shall  see later is whether there is a possible extension of the concept beyond Anglo-Saxon tradition and the possibility of this assurance on matters affecting human rights. No doubt, the full application of the concept is likely to send jitters into governments’ spines because the central point there is succinctly put by Stone as being that state officials and ideally state organs themselves must be answerable in the courts like all other persons and bodies.

OBJECTIVES

The objectives of this unit in respect of the study of the constitutional concept of the Rule of Law are to examine those major components of what make up the rule of law, the contextual meaning of what  this phrase means and its importance in the day-to-day running of the affairs of the state by the different agencies of government.

MAIN CONTENT

The Historical Evolution of Rule of Law Concept

The history of the Rule of Law dates back to the theories of early philosophers. As stated by Aristotle, “The Rule of Law is preferable to that of any individual”. Adopting this theory to that period (Middle Ages), Bracton, in the 13^th century was of the opinion that, “the King himself ought not to be subject to man but subject to God, and the law because the law makes the king”.

This was the extent to which the early philosophers could stretch the  rule of law. Much later, John Locke on the same concept added that;

“Freedom of men under government is to have a standing rule to live by, common to everyone of that society, and made by legislative power created in it and not be subject to the constant and unknown arbitrary will of another man.

However, at the end of the nineteenth century A.V. Dicey described the principle of the rule of law as one of the two basic principles of the English Constitution. During the last thirty years, prominent jurists have devoted much attention to the study of the ideals of the rule of law.

In Nigeria, the Supreme Court has emphasized on several occasions the importance and continuing relevance of the idea of the rule of law even in the context of a military government. A very careful analysis of this idea is especially topical in Nigeria going by its implication as provided in the 1999 Constitution Federal Republic of Nigeria.

SELF-ASSESSMENT EXERCISE 1

Briefly trace the evolution of the concept of the “Rule of Law”.

Attempts at Defining the Rule of Law

The “Rule of Law” means that law rules or reigns. This presupposes a situation where everything is done in accordance with law thereby excluding any form of arbitrariness. The concept of the rule of law is of great antiquity. This is because, for many centuries, it was recognized that the state usually possessed enormous power which may be used to oppress individuals. This has been a point of concern for both political and legal philosophers who are in a continuous search for a suitable and somewhat permanent means of subjecting governmental power to control.

Aristotle argued that government by law was superior to government by men. By this he meant that where the rule of law prevailed, government will be better organized unlike rule by the whims and caprices of the leader which will likely cause chaos.

The rule of law as a constitutional and political concept has been a subject of much interest to prominent writers even before the 19^th  century when A.V. Dicey wrote his thesis. So one can rightly assert that Dicey did not invent the rule of law concept, he only put his own interpretations upon its meaning.

While writing on the concept in the late 19^th century he was very much influenced by his own understanding of the working of the British constitution. In his writings, Dicey acknowledged that the supremacy of the law had been one of the features at all times of the political institutions of England since the Norman Conquest.

From the foregoing analysis, it is clear therefore and one could safely  say that the basic meaning of what the concept of the rule of law stands for is that the law of any given state is supreme over and above all the individuals, be it the kings and its subjects. 

SELF-ASSESSMENT EXERCISE 2

What is the idea of the concept of the “Rule of Law?”

Supremacy of the Law

Professor A.V. Dicey in his epochal work distilled and expatiated on the “Rule of Law”. Even though the three aspects are subject to constructive criticism, writers on the subject are agreed that Dicey’s formulations are authoritative coming as the last stage of the evolution of the concept. One of the three formulations is the supremacy of the law.

This first aspect of the Rule of Law as formulated by Dicey was that the concept means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the  existence of wide discretionary authority on the part of government.

A further interpretation of this formulation is that no man should be punished or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.

However, this proposition when Dicey said it was to the displeasure of non-Anglo-Saxon writers. He said: “A man with us’ (the English  Nation) may be punished for a breach of the law but he can be punished for nothing else.”

For the purpose of this discussion, this formulation can be subjected to  at least two interpretations.

Firstly, it may mean that power, no matter from whom it came, must be exercised in accordance with the existing laws of the land.

The second possible interpretation is that the citizen could only be punished for a breach of the law established in the constitutional manner before a constitutionally constituted court of the land. This issue  came up comprehensively in the popular case of Mohammed Olayori and others. The issue in that case was whether a decree which conferred special powers on the Chief of Army Staff to detain persons during the period of emergency was enforceable. TAYLOR C.J. said;

“…If we are to live by the rule of law, if we are to have  our actions guided and restrained in certain ways for the benefits of society in general and individual members in particular then, whatever status or post we hold, we must succumb to the rule of law”.

The court, in the most instructive manner condemned the arbitrary powers of the Chief of Army Staff.

In the general sense, the first formulation means that the Rule of Law presupposes the absence of arbitrary and capricious law. Therefore, for a person to be punished for a law, that law must be written and ascertainable. This was the decision of the Nigeria Supreme Court in AOKO V FAGBEMI (1969)1 ALL N.L.R. 400. It is also a constitutional provision by the provisions of section 33 of the 1999 constitution of the Federal Republic of Nigeria.

SELF-ASSESSMENT EXERCISE 3

Explain the idea of the Supremacy of the Law.

Equality before the Law

This postulation is to the effect that every person no matter his status is subject to the laws of the land. In this sense, it means equality before the law or equal subjection of all classes of persons to the ordinary law of the land administered by the ordinary law court.

This postulation includes equality, justice, and equality of rights. It is also a constitutional provision by the provisions of section 17(1) of the 1999 constitution of the Federal Republic of Nigeria.

A further interpretation of this postulation means that no man is above the law and that every man, whatever, his rank or condition is subject to the law of the land and amenable to the jurisdiction of the ordinary tribunals.

Ordinarily, most countries observe this sense of the rule of law in that  the socio-political or economic status of an individual is per se no  answer to legal proceedings, yet there are a number of exceptions when it comes to practical experiences. For example, from the nature of the duties they have to discharge judges, diplomatic representatives and parliamentarians are usually protected and given certain privileges. They are also exempted from certain liabilities. Similarly, the police have special powers of arrest and search which the ordinary man does not possess.

Furthermore, in modern times, it is not easy to keep to the ideal that every person is brought before the ordinary courts of law. Special courts, as for example, juvenile courts are established to handle special cases. We also have courts for the trial of military personnel who have committed offences. These courts apply special laws which do not apply to every citizen. Similarly, various tribunals and panels have been constituted and charged with the responsibilities of disciplining erring members of the different professions.

However, the decisions of these tribunals are usually subject to review by superior courts. For instance in DENLOYE V DENTAL PRACTITIONERS. DISCIPLINARY TRIBUNAL (1981) 1 N.C.L.R.35 the decision of the tribunal was set aside by the Supreme Court of Nigeria when the court found that the appellant had not been accorded a fair trial before being penalized.

On the whole, the exigencies of modern government suggest that many persons have peculiar rights, powers, immunities and duties which the ordinary citizen does not have. It is apparent; therefore, that equality before the law in modern times does not mean that every person, officials and ordinary citizens alike have the same rights and duties. Rather, it means that all people are subject to the law but the law which some are subject may be different from the law to which others are subject.

In GOVERNMENT OF LAGOS STATE V OJUKWU (1986) 1 N.W.L.R. 621 at 647  Oputa J.S.C. said that the Rule of Law presupposes:-

1. That the state is subject to law
2. That the judiciary is necessary agency of the Rule of Law,
3. That government should respect the right of individual
4. That to the judiciary is assigned the role of adjudicating in proceedings relating to matters in dispute between persons or between government or an authority and any person in ”

SELF-ASSESSMENT EXERCISE 4

What is the effect of equality before the law in its application in Nigeria?

Enforcement of Rights and Protection

In A.V. Dicey’s view, the constitutional law of England is not the source but the result of the ordinary law of the land. Dicey here merely emphasized the protection of and the enforcement of personal rights and freedoms by the courts even though there may be no written constitution in England conferring such rights. He did not really consider the wider constitutional principles such as the sovereignty of parliament which in essence means that parliament could make laws denying both the right and the remedy and nothing could be done against such law.

While the above is true of England, it is not the same case in all jurisdictions. For instance, in jurisdictions where there are laid down constitutional provisions on human rights like Nigeria, fundamental human rights are entrenched in the constitution by virtue of specific chapters. Chapter 4 of the 1999 Constitution of the Federal Republic of Nigeria.

The Rule of Law started taking a different dimension in 1948. It adopted an international status through the Universal Declaration of Human Rights which was set out by different United Nations Members. This was followed by the European Convention on Human Rights of 1950.

In Africa, there has been in recent times a Declaration of Human Rights which African Nations are being encouraged to adopt in their municipal laws and through the regional organizations such as ECOWAS and AU.

World jurists have had conventions on the Rule of Law ever since the creation of the Universal Declaration of Human Rights in 1948. These conventions include:

1. The Acts of Athens convention of 1955
2. Declaration of Delhi of 1959
3. Law of Lagos.

The postulations and criticisms of the Rule of Law by Dicey and his critics have given a different scope to the concept.

SELF-ASSESSMENT EXERCISE 5

As a component of the rule of law, how can the protection of and enforcement of rights of the citizens be guaranteed?

Rule of Law: The Nigerian Experience

SELF-ASSESSMENT EXERCISE 6

Enumerate the major recognized impediments to the successful application of the Rule of Law in Nigeria?

Requirements for the Validity of the Rule of Law

Over the years, the following basic points have been recognized as means of identifying the successful application of the Rule of Law in  any given jurisdiction. These include:

1. Law should be prospective in its effects
2. The Law in such countries should be certain, clear and publicly known.
3. Laws should be general and making of particular legal orders should be guided and constrained by general laws
4. The judiciary should be independent and easily accessible.

CONCLUSION

From the basic concept of the rule of law so far discussed, it is clear that as a constitutional concept, it is desirable. The utility value cannot be overestimated otherwise, there would be chaos.

SUMMARY

Summarily, the concept of the “Rule of Law” as formulated by different writers, jurists and Legal Philosophers means the follows:

The officials must obey the legal rules in their actions; The legal rules out the arbitrary discretion of officials.

TUTOR-MARKED ASSIGNMENT

1. What is the rule of law?
2. Examine the three formulations of V. Dicey in his postulations in respect of the Rule of Law.
3. What are the effects of military intervention in Nigeria Political on the sustainability of the Rule of Law?
4. Examine the basic requirements for the validity of the application of the Rule of

REFERENCES/FURTHER READINGS

A.V. Dicey (1985). Law of the Constitution 10^th Edition.

Harry W. Jones: ‘The Rule of Law and the Welfare States’ lifted from  the ‘Crisis of Justice; by T.A. Aguda.

John Locke: Second Treaties of Civil Government.

Justus A. Sokefun: Issues in Constitution Law and Practices in Nigeria.

In Honour of Dr Olu Onagoruwa.

Professor Ben Nwabueze in “Rule of Law and Fundamental Human Rights” In Law Development and Administration in Nigeria; “Eds. Yemi Oshibajo and Kalu Awa”.

1959 VOL. 2 of Journal and International Commission of Jurists, Pages 7-32.

Stone J: Social Dimension of Law and Justice.

The 1999 constitution of the Federal Republic of Nigeria.