RULE OF LAW

1.0 Introduction

2.0 Objectives

Main Content

• Historical Background
• Meaning of Rule of Law
• Analyses of Rule of Law
• Contemporary Texture of Rule of Law

4.0 Conclusion

5.0 Summary

6.0 Tutor-Marked Assignment

7.0 References/Further Readings

 INTRODUCTION

Rule of law is a doctrine that insists on the supremacy of law over the supremacy of man. In the age of absolutist sovereigns, there was no rule of law. If there was, it was subject to the whim and caprice of the king, the ruler, the head of  State. He  could do no  wrong. He  was  the embodiment of sovereignty. However, with the people’s sovereignty displacing the ruler’s sovereignty, rule of law has been institutionalized in almost every legal system.

You should note that discretion is a sore point in any discussion of the  rule  of  law.  Discretion appears to be inconsistent with the proclamation of the rule of law. But modern State can hardly survive without it. Another issue that is worthy of examination is the legitimacy of equality as espoused by the  doctrine  especially against the backdrop of many laws which promote unequal treatment or enforces affirmative action. Moreover, you should recall that rule of law has facilitated the growth and respect for human rights. Furthermore, the family of human rights keeps expanding as and when the need arises.

OBJECTIVES

At the end of this Unit, you will be capable of:

• Distinguishing between classical rule of law and contemporary rule of law
• Applying the doctrine of rule of law to the activities of administrative agencies

MAIN CONTENT

HISTORICAL BACKGROUND

This concept of rule of law (which is synonymously referred to as supremacy of law or constitutional supremacy) is of great antiquity dating back to Greek times. The Greek philosopher, Aristotle said that “the rule of law is preferable to  the  rule  of  any individual.” There was a time when the king could do  no  wrong.  It  was  not  really  a  factual statement to say for all it meant  was  that  the  king  was  above  the  law.  But Henry De Bracton wrote in the 13th century that “the world is governed by law, human or divine” and stated further that:

“The King himself ought not to be subject to man, but subject to God and to the law, because the law makes him King.”

Of course, Bracton was right for saying the King can do no wrong. That was then. But in contemporary times, that statement belongs to the trashcan of history. Notice how erstwhile government officials’ individual responsibility is frequently being engaged domestically and internationally for their ignoble role in violating the human rights of other persons. Note that rule of law is closely connected with such concepts as due process, natural law, democracy, fairness, etc.

MEANING OF RULE OF LAW

The term “Rule of Law means literally means the governance of law, the state of being governed by law through the agency of man i.e. a regime of government of law as opposed to a government based on the whims and caprices of man.

It is believed that the term ‘rule of law’ is Greek in origin having been associated with Greek aspirations, and particularly the renowned Greek philosophers Plato and Aristotle. It stems from the distrust which the Greeks had for human nature. They had observed that man is by nature self-centered and will stop at nothing to annihilate opponent and exterminate opposition.

Rule of law primarily means that everything must be done in accordance with the law. This implies that governmental organs and agencies must act in such a way that their conduct  against the life, liberty and property of persons are legally justified or founded.

One of the most notable exponents of the concept is Albert Venn Dicey, Professor of English Law at Oxford. He recognized rule of law as comprising three meanings as follows:

• Firstly, it means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative or even of wide discretionary authority on the part of the government. That is, no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land

According to him:

It means in the first place, the absolute supremacy or predominance of regular law as opposed  to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative,  or even wide discretionary authority on the part of the government … a man may be punished for a breach of law, but he can be punished for nothing else.

• The second aspect of the rule of law is: equality before the law, or equal subjection of all classes to the ordinary law of the land administered by ordinary courts. Simply put, that no man is above the law; officials and private citizens are under a duty to obey the law; and that there are no administrative courts to which are referred claims by the citizens against the state or its officials

Recall that Dicey contrasted the rule of law with the droit administratif of France. In  the system obtainable in France, there are specialized courts  established  to  hear  matters  involving government officials. In other words, the courts that determined issues amongst private persons were different from the ones that handled matters concerning public officials.

This practice was declared by Dicey to be inconsistent with the  rule  of  law.  And  because such dual court system was non-existent in  the  United  Kingdom,  he  had  erroneously declared the latter to be lacking in administrative law. He was wrong.

He wrote in criticism of the French administrative system which he used as a basis for rejecting the emergence of an administrative arm of government in England. However, the administrative arm of government has become an indispensable or inevitable hallmark of modern system of government with more and  more  powers entrusted to administrators  to  do.  This  is  because of the need for the government to be more responsible for the proper functioning of the socio-economic and political system, and the welfare needs of the people.

• Lastly, the Rule of law may be used as a formula for expressing the fact that with us the laws of the Constitution, the rules which in foreign countries naturally form part of the constitutional code, are not the source but the consequence of the rights of individuals as defined and enforced by the courts

In the case of Governor of Lagos State v. Ojukwu, (1986) 1 NWLR 621 AT 647 Oputa, JSC (as he then was) conceptualized the rule of law in the following words:

The rule of law presupposes that the state is subject to the law, that the judiciary is a necessary agency of the rule of law, that the Government should respect the right of individual citizens under the rule of law and that to the judiciary, is assigned both by the rule of law and by our constitution the determination of all actions and proceedings relating to matters in disputes between persons, Governments or authority.

In the same vein, in his own conceptualization of the rule of law in the same case, Obaseki, Jsc (as he then was) had this to say:

Rule of law primarily means that Government should be conducted within the framework of recognized rules and principles which restrict discretionary powers which Coke colourfully spoke of as a golden and straight method of law as opposed to the uncertain and crooked cord of discretion.

Lastly, emphasizing the centrality of the concept of rule of law to constitutional democracy and good governance, the Supreme Court in Miscellaneous Offences Tribunal v. Okorafor (2001) 18 NWLR (Pt. 745) 310 @ 327 said as follows:

Nigerian constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the framework of recognized rules and principles which restrict discretionary powers.

The doctrine of Rule of Law is one of the pillars upon which true democracy and good governance is established upon. Historically, the concept is rooted upon the theories of early philosophers, who in their own ways proffered various definitions to the doctrine. Aristotle expressed the view that the Rule of Law was preferable to that of any individual.

In the 17th century, John Locke commented on the concept of Rule of Law that: Freedom of men under government is to have a standing rule of live by, common to everyone of that society and made by the legislative power created in it, and not to be subject to the inconstant, unknown, arbitrary will of another man.

What John Locke meant in essence was that the Rule of Law meant that all governmental powers was to be exercised and determined by reasonably laid down law and not by the whims and caprices of anybody or authority. However, the widely accepted and authoritative definition of the concept was proffered by Albert Venn Dicey.

SELF ASSESSMENT EXERCISE 1

1. Discuss the ingredients of rule of law

ANALYSES OF THE RULE OF LAW

We will now attempt some analyses of the Diceyan three-fold meaning of the rule of law.

• The First meaning of the Rule of Law is that ‘no man is punishable or can lawfully 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
• The Second Meaning of the Rule of Law is that no man is above law

Every man whatever be his rank or condition. is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

• The Third meaning of the rule of law is that the general principle of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the court

Regular laws v. Discretionary Laws

We totally agree with Dicey’s position that everything be done in accordance with the law. We equally have no objection to his concern over arbitrary powers exercisable by government officials. But the point that would easily recommend his theory to disapproval is  his  opposition to the grant or exercise of wide discretionary power. You  will recall that discretion is one of the features of administration. Note that most of the powers vested in governmental agencies by enabling statutes by the legislature are mostly discretionary power. Where the Legislature fails to grant discretionary powers to the administration, chances are  that  the wheel of government will grind to a halt. Without it, the legislature would probably be a jack  of all trade in the art of legislation being a master of none. In the final analysis, the citizens  will suffer. It must be noted that ‘wide discretionary power’  may  not  be  wild  afterall because the authority that grants power to the administrative agency has some measure of control over the donee.

Kenneth has castigated the rule of law that abhors discretionary exercise of power as extravagant version of rule of law because their abhorrence lacks foundation in rules or principles. For example, the President of a country – who intends to  provide hitherto non- existing welfare package for certain categories of citizens – may have to come up  with policies, rules or principles which will break new constitutional grounds. In other words, such measures cannot be bound by much of extant rules or principles because welfarism  has become a recondite medium of meeting the needs of the people. Likewise, the  courts  cannot be expected to operate strictly by fixed rules. In fact, it is because there are no  many fixed rules that you have cases in courts. Kenneth alluded to the fact that:

• For an offence that carries a penalty of a maximum of 10 years, the judge  has  a discretion to convict and sentence from between 1-10years. The law merely fix the boundary of the discretion but none within the boundaries;
• When the Supreme Court overrules itself or sweeps away pre-existing precedent, it does so by discretion;
• The emergence or supremacy of equity over common law rules was a vote- of-no-confidence on the (rigid) rules and the victory of discretion;

• When the equity of today hardens into (rigid) rules, then reform would become necessary

In support of the above analyses, Wade & Phillips said that:

If it is contrary to the rule of law that discretionary authority should be given to government departments or public officers, then the rule of law is inapplicable to any modern constitution.

Equality v. Inequality

You should note that equality of  all  before  the  law  means  that  everybody  is  equal before the general law. This is without prejudice to  the  fact  that there are special laws which  apply to certain classes of people. For example, the Children and Young Persons Law 1947 applies essentially to children and young persons. Its application to any adult is coincidental. Take another example from S. 308 of the CFRN 1999. It Immunes only the incumbent President, Vice-President, Governor and Deputy Governor from both civil and  criminal legal  or court process no matter the gravity of their conduct. Any other official or any  other  Nigerian for that matter is not entitled to the constitutional privilege. As  domestic officials enjoy immunity so also are members of the  diplomatic  community  in  this  country. Customary international law and the Privileges and  Diplomatic  Immunities  Act  1962 immunes them as well from civil and criminal liabilities.

In relation to the concept of equality, a full  realization  is  hindered  by  various  socio-economic and legal  considerations.  Undoubtedly,  the  concept  being  nebulous  has been given different meanings in different cases. For example, in the Former Eastern bloc, it meant the rule of law irrespective of its content or nature once it was legal and good for the State. The break-up of the East bloc had perhaps proved the fallacies of such argument, even though it can be said that it still exists to some extent in Islamic cultures. In the Western world, such law, before it accords with the rule of law, must have certain minimum content as enumerated below:

• Equality before the law subject to exceptions;
• No punishment except for written laws;
• Regularity of law;
• An independent   judiciary    to    pronounce    on    an    act    of    government    and individuals when contrary to the law;
• The guarantee of certain basic rights and or freedom; and
• Lack of arbitrariness

It is debatable whether the minimum content is really applicable to a democratic Nigeria. But there was certainly no debate about its doomed  fate  in  the years  of military  dictatorship.  This is predicated on the fact that the military, upon assuming power, usually abrogates or suspends  some  parts  of   the   Constitution  including   the  fundamental  h um a n  r ig h ts pr o vi s i o ns of t he C o n s ti tu t io n . The d e cr e es of the legislative body – SMC, AFRC – negated the rule of law. Many courts had no choice but to give  their  blessings  to  such decrees. However, there were some  innovative judges  who  declared that  rule  of  law was alive and well even in such autocratic regimes.

This is because rule of law presupposes the existence of a particular kind of higher law to  which everyone in the society is subject. The military, however, in coming to power suspend and modify this higher law which is a form of a constitution and continues to  rule  by  different decrees which are quite irregular and uncertain. Also, a later decree supersedes the former and the rights that are in existence today may tomorrow be taken away. Despite this, some fearless judges still demand strict compliance with the provisions of extant decrees.

The importance of this concept to administrative law cannot be over emphasized. This is as a result of the fact that the main purpose of administrative law is to keep the confines of the administration within the limits of the law as represented by the constitution in a  civilian regime and decrees during a military rule.

Basic Rights

Dicey states that the constitution is the result of the ordinary laws of the country.  In other words, the fundamental rights enjoyed by citizens  derived  from  the  ordinary laws  of  the  land or from the decisions of the courts, not from any special guarantee by the constitution.

CONTEMPORARY TEXTURE OF RULE OF LAW

In contemporary times, the rule of law has come to mean or to be  referred  to  as  the  following:

Respect for the Decisions of Court

You will recall that the late President Yaradua’s mantra or sing song was rule of law. The  context for his attachment to the doctrine principally derived from the notoriety of the immediate government of Obasanjo to disobey court decisions at will. It fits into the scheme of the rule of law for court rulings and decisions and other processes of court to be  obeyed.  The situation is the same even where such decision is null and void. It is the duty of a law-abiding citizen to get the court to declare the  nullity  of  such  decision  but  until  then such decision must be obeyed. A decision that is null  could  make  the  law  or  the  legal system to be unjust. According to natural legal philosophers, an unjust law deserves to be disobeyed. However, according to Thomas Aquinas, such laws may still be obeyed  despite their unjustness if doing otherwise will cause social disorder.

Respect for Human Rights

Respect for human rights has become the basic template for determining whether or not the government is rule of law-compliant. Human rights are the freedoms, liberties, immunities or benefits which are inherent in  human beings in  a  civil  society.  They predate the  individual  or the society. Such rights are to be found in  Chapter II  and Chapter IV of the CFRN 1999.  See the African Charter on Human and People’s Rights (Ratification and Enforcement) Act 2004, through which Nigeria domesticated its obligations to observe human rights under the African Charter on Human and People’s Rights 1981. See also the following cases:

Fawehinmi v. Gen. Sani Abacha & Others, (1996] 9 NWLR (Pt. 475) 710 CA. and Governor of Lagos State v.Ojukwu. [1986] 1 NWLR (Pt. 18) 621 SC.

Recognition of New generation of Human Rights

In the beginning we had the first generation – International Covenant on Civil and Political Rights (ICCPR)  of  1966,  Adopted  and  opened  for  signature,  ratification  and  accession by GA Resolution 2200A (XXI) of 16 December 1966, and entered into force on 23 March 1976 – and the second generation – International Covenant on Economic, Social and Cultural Rights (ICESCR) 196 Adopted and opened  for  signature,  ratification  and  accession by GA Resolution 2200A (XXI) of 16 December 1966, and entered into force on 3 January 1976 – of rights. However, because of the dynamism of human rights its categories  are not closed. Consequently, human rights have been categorized into miscellaneous generations of rights.

 CONCLUSION

Rule of law presupposes the doing of everything according to law, that is, that there is the absolute predominance of regular laws over privative laws or discretionary laws;  equality before the law or the equal subjection of all classes to the ordinary law of the  land  administered by the ordinary law courts; and the guarantee of certain basic rights.

The doctrine of rule of law  is  popular  because  there  is  hardly any legal  system  that does not contain, at  least,  the  tenets  of  the  doctrine.  Discretionary  power  or  the  exercise thereof  is  one  practice  that  the  doctrine  condemns  because   it   allows individuals to   apply their own personal conviction without necessarily resorting to the law. But  because  of the complexity of modern State and the complicated nature of its problems, there is the necessity to entrust administrative agencies with the power to act discretionarily in deserving circumstances – circumstances unforeseen.

In its modern manifestation, rule of law has given rise to, for instance, new generation of rights or human rights such as the rights to development, environment, etc.

SUMMARY

In this Unit, we examined rule of law in  its  traditional form and in  its  modern ramification. We equally attempt some analyses and, finally, looked at the contemporary scope of  the concept.

TUTOR-MARKED ASSIGNMENT

1. Even in contemporary times, rule of law remains what it was in classical era. Discuss.

REFERENCES/FURTHER READINGS

1. Akin Oyebode, International Law and Politics: An African Perspective (Lagos: Bolabay Publications, 2003).
2. Kenneth Culp Davis, Administrative Law and Government (Minnesota: West Publishing Co., 2nd Edition, 1975).
3. C.S. Wade & A.W. Bradley, Constitutional Law 64 (London: Longman, 8thEdition, 1970.