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THE RULE OF LAW AND ITS APPLICABILITY IN NIGERIA: EXAMINATION OF ABUSES AND NON-OBEDIENCE

CHAPTER ONE

GENERAL INTRODUCTION

1.0 INTRODUCTION

Rule of law and democracy are both legal and political issues which have gained attention not only in Nigeria but world over. In general, both form the basis of advocacy of most international bodies or institutions, with the intention of sustaining and maintaining world peace.

The rule of law is a principle which provides that no person is above the law, that no one can be punished by the state except for a breach of the law, and that no one can be convicted of breaching the law except in the manner set forth by the law itself[1]. The rule of law stands in contrast to the idea that the leader is above the law – a feature of old Roman, Nazi , and certain other past law or legal systems[2].

Without the rule of law, societies will be in a perpetuate state of conflict. Just as one observes the rule of grammar in order to make sense in conversation, so a society must abide by rule of laws to maintain peace. The rule of law is therefore imperative for the maintenance of public order.

Political parties do canvass for votes during elections. An elected party by majority votes gains the legitimacy to govern according to the rule of law; anything contrary to this is not rule of law but rule of man tainted with whims and caprices that can never be in conformity with the true interest of the people. So any form of arbitrariness and impunity, such as we have witnessed in Nigeria before 1999[3], creates the despondency leading to revolt as we have seen in part of North Africa and the Middle East[4].

Majority rule creates the legitimate legal basis for legislative governance of a state. Legislations, which seek to regulate the political, economic and social life of a state, are indispensible for the enthronement of the rule of law. The functions of law are therefore to create an ordered atmosphere in a polity, which enhance peaceful development of the state.

One of the important functions of laws is that, they define the citizens’ rights and duties. No man should be dealt with wickedly either by the government or his compatriots. This is because, by the rule of law, both the rulers and ruled are equal before the law. So where such infringements on citizens’ rights occur, firstly, it is a clear departure from the rule of law; and secondly, it entitles the citizens free access to the judicial processes in order to ventilate their grievances[5].

The rule of law is both a deterrent and a shield[6]. The legal system must work properly, ensuring that justice is not unduly delayed. This is because, Rule of law has no delight in unduly prolonged cases, a situation whereby courts adjourn cases on the cause list for over a decade which is tantamount to ‘Justice delayed is justice denied’ is no rule of law; and in a situation where for instance a report showing lawyers applying for prolonged adjournments, preliminary objections, unnecessary appeals in order to stultify the judicial process does not enhance the rule of law[7].

The terms rule of law and democracy are two sides of a coin, and are thus inseparable. The implication of this is that you cannot be talking on one without mentioning the other. In the words of a legal icon and political luminary; ‘Democracy is the complete application of rule of law and human rights in any given society’[8]

From the foregoing, it is apparent that rule of law and human rights are inherent in democracy. It then suffices to say that any democracy that lacks both is not democracy. The reason behind this is not farfetched, it is because democratic government recognizes rights of the people as to life, personal liberty, movement, to own property and dispose same, to determine who and who to represent them in position of authority and when and how to remove them, and so on, on the one hand; and the supremacy of the law of the land which governs both the rulers and the ruled; which also commands obedience and punish disobedience when due, equality of all  in respect of the enjoyment of rights guaranteed to them on the other hand[9].

It is therefore submitted that, democracy is a test for good governance. And, it suffices to add that any state that lacks this has not seen the light of the day and as well far from development. Hence, the basis for this study is to look into the applicability and effectiveness of one of the important determinants or yardsticks of democracy- the rule of law, with a view to determining whether or not  true democracy exist in Nigeria under the 1999 Constitution.

1.1. BACKGROUND OF THE STUDY

Most civilized countries of the world practise democracy because of its inherent characteristics in ensuring sustainable development in its entirety; viz, politically, socially, economically, culturally and in terms of foreign relations with other countries. That is why many political and legal minds have opined that democracy is the soul of any enduring political system. And it remains the hallmark of societal civilization[10].

Thus, as the practice of democracy is the yardstick for international relationship, Nigeria, during military era, was for many years debarred from some International Organizations; notably, the Commonwealth of Nations[11]. The reason behind this was that, fundamental human rights had been one of the most important objectives upon which most international organizations had been trading since the end of World War II so as to maintain world peace and stability.

Therefore, it is pertinent to state that democracy, as a system of government, is now the globally accepted and best system of government. The reason behind this is not farfetched; it is because it happened to be the only system of government where rule of law and fundamental human rights are best entrenched and enjoyed and this indeed informed the topic of this essay.

1.2. OBJECTIVES OF STUDY

The objectives of this study are:

1. To make the readers to know more about the concept of the rule of law and it’s applicability;
2. To make total and critical review of the applicability and effectiveness of the concept of the rule of law in Nigeria under the 1999 Constitution, so as to look into its achievements and problems, and recommend necessary solutions to the problems so identified;
3. To look into the roles of the institutions of government in the furtherance or otherwise of the concept in Nigeria;
4. To look into whether there is any nexus, positive or negative, between the judicial arm of government and the effective applicability of rule of law;
5. To show the world the importance and impact of rule of law to democracy and the relationship between them; as well as to the development of a country; and

1.3 FOCUS OF STUDY

This study focuses on the concept of rule of law as obtainable in Nigerian democracy under the 1999 Constitution whether or not it is being practiced as it is expected of a true democratic state.

1.4 SCOPE OF STUDY

Democracy and rule of law are concepts which have been recognized throughout the world; and both have become practices of most countries of the world. However, for the purpose of this study, the major concern is limited to the rule of law as obtainable in the Nigerian democracy under the 1999 Constitution.

1.5 METHODOLOGY

Materials are sourced from both primary and secondary sources. The primary sources include the Constitution of the Federal Republic of Nigeria, 1999[12], some other statutory enactments and case laws; while the secondary sources include textbooks, articles from learned journals, internet materials and other relevant materials necessary to enhance credibility of this study. Therefore, the study is essentially a library based (doctrinal) research.

1.6 LITERATURE REVIEW

According to Fortune Law,[13] rule of law is the active supremacy of the law over all, and equality of all before the law, as opposed to respect of persons and the selective application of the law.

Ojo Maduekwe,[14]in an interview on rule of law as obtainable in Nigerian democracy, streamlined the meaning of rule of law by positing among other things that, the rule of law is the way to protect the Nigerian state and to ensure that the fight against corruption continues. The implication of this definition is that, the rule of law is seen as a tool in the hand of a democratic state for combating injustices such as corruption.

Uchenna Emelonye[15] opined that rule of law hinges on the relationship between state and society and between citizens, an accepted set of political values and rules. Many commentators[16] have identified a fair, impartial, and accessible justice system and a representative government as key elements of the rule of law. The term rule of law has been applied to mean independent, efficient, and accessible judicial and legal systems, with a government that applies fair and equitable laws equally, consistently and coherently to the entire citizens.

The phrase ‘Rule of Law’ is seen by many to be of primary importance to transiting and emerging economies. According to Lord Ashdown[17];

In hindsight, we should have put the establishment of the rule of law first, for everything else depends on it: a functioning economy, a free and fair political system, the development of civil society, public confidence in the police and the courts.

This view is widely shared by many stakeholders and at the same time the idea of rule of law like the concept of human rights and development is subject to multiplicity of interpretations and definitions.

The United Nations[18] defined rule of law as:

A principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

Mark Cooray[19], while commenting on the supremacy of law, opined that the rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law. This principle is a further development of the principle of equality before the law. Laws should not be made in respect of particular persons.

As Dicey[20] postulated, the rule of law presupposes the absence of wide discretionary authority in the rulers, so that they cannot make their own laws but must govern according to the established laws. Those laws ought not to be too easily changeable. Stable laws are a prerequisite of the certainty and confidence which form an essential part of individual freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot be achieved if they are framed in too detailed a manner.

In his own opinion, Stan Rule observes:[21]

‘Rule of Law’ is both a play on my name, and a statement of my values. The rule of law is a foundation for both our liberties and for order. The rule of law respects us as equals. It allows us to organize our lives, plan our futures, and resolve disputes in a rational way. There are those around the world and throughout history who have fought in great struggles for the rule of law.

Rule of law inherently possess the guarantee of freedoms and liberties of the people to determine what they desire; and such is a basic underlying principle of democracy. No wonder, Suleiman Nasiru[22] stated that, in political theory, democracy describes a small number of related forms of government and also a political philosophy. Even though there is no universally accepted definition of ‘democracy’, there are two principles that any definition of democracy include. The first principle is that all members of the society (citizens) have equal access to power and the second that all citizens enjoy universally recognized freedoms and liberties.

Therefore, it suffices to state that democracy embraces the rule of law as one of its determinant. This justifies the statement of Kayode Ajulo that democracy is the complete application of rule of law and human rights in any given society.

According to Dicey[23]in his study of the Constitution of Britain, the rule of law is the dominance of regular laws as opposed to arbitrary or wide discretionary use of powers, equality before the law and that the British Constitution is the product of the ordinary law made by the people of Britain to be supreme and govern them at large.

Wiley Y. Daniel[24] opined that the rule of law is to justify the legal order and legitimize the legal system of a given society, and discussed the ways by which the rule of law achieves this purpose.

Ayo Olanrewaju[25]  was of the opinion that the developing societies such as Nigeria, what the rule of law portends goes beyond merely ensuring adherence to formalistic laws but also a conscious means of economic and social development.

Niki Tobi JSC[26] discussed to a great extent the concept of legal right of an individual. According to the learned Judge:

A legal right in my view is a right recognized by law and capable of being enforced by the plaintiff. It is a right of a party recognized and protected by rule of law…

Finally, the Supreme Court, in the case of The Federal Republic of Nigeria v Ifegwu[27] described the nature of Fundamental Human Right and the duty of the court to protect them. This justifies the Nigerian judicial arm’s support of the rule of law as one of the greatest measure or standard for a true democracy. This is because, fundamental Human rights is one of the major characteristics of rule of law.

1.7 CONCLUSION

The rule of law – the major concern of this study, has attracted much attention from scholars, philosophers, lawyers, political scientists and writers, and they have written both extensively and intensively on it. Thus, its recent vast growing nature, and the practice of democracy in most countries of the world, justifies making it the subject matter of this work. So, this chapter has given background knowledge on the focus of this work and has successfully analysed the views of various writers, from diverse background, on the concept of rule of law.

1. Section 36(12); Aoko v Fagbemi (1961) ANLR 400.
2. Ibid.
3. E.g, the Annulment of June 12, 1993 Election acclaimed to be the freest, fairest and most peaceful election prior to that time and believed to be won by Chief M.K.O.       Abiola and All the military atrocities to  prior 1999.
4. Emmanuel E.O, ‘Rescuing Nigeria from the Rule of Lawlessness’ <http://www.focu snigeria.com/rescuing-Nigeria.htm > accessed on 13 May 2011.
5. Ibid.

6. Ibid.
7. Section 36(1) 1999 Constitution of the Federal republic of Nigeria. Ifeanyi Nnwankwu & Anor  v Oraegbunam Aniete [2002] 2 NWLR (Pt.752).

[8]              Kayode A, ‘10 Years of Democracy in Nigeria’<http://www.hg.org/article.asp?id=6            522> accessed on 15 May 2011.

[9]              Uchenna E, ‘Rule of Law and Human Rights Development’ <http://www.nigeriabes           tforum.c om/generaltopics/?p=72986> accessed on 15 May 2011.

[10]             Frank K, ‘ Democracy in Nigeria, the Journey So Far’ ( Paper Presented at the Benin         National Merit Award, Benin city-Nigeria on 29 December, 2007) <http://benincon gress.org/democracy -in- Nigeria.htm/> accessed on 13 May 2011.

[11]             Human Rights Watch,‘Transition or Travesty: Nigeria’s Endless Process of Return to        Civilian Rule’ <http://www.unhcr.org/refworld/docid/3ae6a8314.html >accessed on    20 June 2011.

[12]             Cap. C 23, LFN 2004.

[13]             Fortune Law, ‘Amnesty by rule of law okay, not lip service’ <http://www.nigeriabest         forum .com/generaltopics/?cat=16506> accessed on 15 May 2011.

[14]             Ojo Maduekwe, ‘Democracy and the Rule of Law in Nigeria’  <http://www.cfr.org/p         ublication/ > accessed on 13 May 2011. Ojo Madueke was a one-time Nigerian Min-      ister of Foreign Affairs.

[15]             Uchenna E, ‘Rule of Law and Human Rights Development’ <http://www.nigeriabes           tforum.com/generaltopics/?p=72986 > accessed on 15 May 2011.

[16]             Goldsworth J,  Legislative Sovereignty and the Rule of Law in Sceptical Essays on             Human Rights ( Oxford University Press, Oxford 2001) 69.

[17]             Cited in Uchenna E. ‘Rule of Law and Human Rights Development’ <http://www.ni                geriabestforum.com/generaltopics/?p=72986 >accessed on 15 may 2011.

[18]             Wikipedia, the free encyclopedia<http:Wikipedia.org/wiki/rule of law>accessed on           19 May 2011.

[19]             Mark C. ‘Supremacy of Law’ <http://www.ourcivilization.com/cooray/btof/chap181        htm>accessed on 7 June 2011.

[20]             Dicey A.V, An Introduction to the Study of the Law of the Constitution (Macmillan,          London 1885) 12.

[21]            Stan R, ‘Rule of law’ < http://blogspot.com> accessed on 7 June 2011.

[22]             Suleiman N, ’10 years of democracy: Is Nigeria making headway? <http:/ /www.ng           ex.com/news/public/article.php?ArticleID=1298 > accessed on 19 May 2011.

[23]             Dicey A.V, An Introduction to the Study of the Law of the Constitution (Macmillan,          London 1885) 12

[24]            Wiley Y. D, ‘Rule of law’ <http://indictdickcheny.blogspot.com /2008/03 /will_us_           districtcourt_judge_allow.html>  accessed on 15 May 2011. Daniel W.Y. is a judge       of the state district court of Colorado, U.S, (Equivalent of the Federal High Court in Nigeria).

[25]            Ayo O, ’The Bar and the Bench in Defence of Rule of Law in Nigeria’ <http:www.g          etcited.org/pub/103137590> accessed on 15 May 2011.

[26]             In Attorney General of Lagos State v Attorney General of Federation (2004) 20  NSCQR  90, 187

[27]             [2003]15 NWLR (Pt.842) 113.