THE DOCTRINE OF RULE OF LAW ITS APPLICATION IN THE NIGERIA FOURTH REPUBLIC

THE DOCTRINE OF RULE OF LAW ITS APPLICATION IN THE NIGERIA FOURTH REPUBLIC

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ABSTRACT

The Phrase “Rule of law” vehemently connotes the “absolute Supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitraries of prerogative, or even of wide discretionary authority on the part of the government. It is the expected to be the guiding principle of governance since it is the foundation of good of governance. The experience in Nigeria is to the contrary as successive administration in the country often violated the concept with carelessness and recklessness. This paper examines how the concept is observed and had suffered in the hands of the constitutional administrations using doctrines and analytical synthesis of events of focuses also on the essence and significance of the rule of law on which the practice of democracy as political ideology and system stands and rests excludes arbitraries. Arbitrariness on the part of anyone leads to strife and social dislocation. A harmonious society presents a cordial environment for man’s existence on earth. Professor wade further explains that “all acts must be in accordance with the law to be valid”. He stresses that government’s activities must be conducted within a framework of defined rules and regulations and that disputes involving the legality or illegality of government actions must be decided by works independent of the government. It is his view that no one should suffer punishment outside the authority of the law and that no one should enjoy undue privileges and discrimination. Professor garner said that “man is a social animal, but to live in a society he has had to fashion for himself and in his own interest, the law and other instruments of government and as a consequences, those must to some extent limit his personal liberties.         

CHAPTER ONE

GENERAL INTRODUCTION

1.1     BACKGROUND OF STUDY

The rule of law is the most important concept in public law and indeed, in every democratic society.

The concept considers every citizen as equal before the law. It sanctifies the priority of the law-common good, over personal, sectional and group concerns. In this way, the law is enabled to provide a common measure of acceptable social behavior in the absence of which anarchy and lawlessness will reign, making, social life and government impossible.

In the previous republics in Nigeria, the rule of law has not been quite impressive. What the case was had been an irregular rise and fall of the rule of law. But in the wake of the further republic, the situation has significantly improved.[1]   

Statehood is a function of law for without the law, there can be no state. It is the law that organizes the people and regulates their affairs in such a way that accords with the requirements of a state.[2]

The rule of law is a distinguishable concept that refers to such ideals as government under the law, equality before the law and the independence and autonomy of the judiciary.[3] 

1.2     STATEMENT OF PROBLEMS

Nigeria, throughout her historical and political experience, reflects a differential appreciation of the sanctity of the rule of law. Incidents of lawlessness and/or rule by man as against the rule of law have occasioned quite enormous disservice to the progress of Nigeria especially at the economic and political frontiers. But it is not enough to have law, it is even more important that it rules over all; for there is only as slim margin between the rule of law and the rule by law. In the latter case, law assumes the nature of a contrivance for the subjugation of the minority, the inferior and the weak. This will inevitably lead to a dialectical situation whereby revolutions supplant revolutions is very quick succession to the end of anguish of man in society. Little wonder Plato observes that:

Where the law is subject to some other authority and has none of its own, the collapse of the state in mu view, is not far off; but if law is the master of government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that gods shower on a state[4].

          The rule of law is a legal maxim according to which no one is immune to law. It prescribes for equality of all before the law and binds governments as well as simple citizens. According to Olongi the rule of law “may be interpreted either as a philosophy or political theory that lays down fundamental requirements for law, or as procedural deice by which those in power rule under the law”[5]. In essence, the rule of law is simultaneously prescriptive and protective. Precisely as being prescriptive, it dictates the conduct required by law and as being protective, it insists against unlawful subjugation, domination and exploitation of citizens by fellow citizens and governments.

Albert Venn Dicey, one of the most famous jurists who taught on the subject of the rule of law articulates it to represent:

a.     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.

b.     Equality before the law or equal subjection of all classes to the ordinary law of the land administered by the ordinary courts.

c.      The law of the constitution is the consequence of the rights of individual and not otherwise.[6]       

Notwithstanding that the Dicey’s construction of the concept of the rule of law fails to recognize the necessary immunity provided in the constitution for some office holders, it nevertheless ranks as one of the most articulate presentations of the rule.[7]

1.3     OBJECTIVE OF STUDY

          The objective of this project is to analyze the important and inevitable nature and role of the rule of law in the society.

In all democracies, the rule of law is obviously pre-eminent and it had since, been the office of the judiciary to see that the rule of law is upheld.[8]

This work aims at portraying the rule of law as the only tool in our legal system that can be used to achieve balance and equality in the society.

1.4     SIGNIFICANCE OF STUDY 

This project work is quite significant as it creates an enlightenment as to the workability of the Doctrine of the rule of law within the sphere of our legal system towards upholding our democratic tenets.

1.5     SCOPE OF STUDY

          Research has been carried out to demystify the mystery and in deed enigma behind the Doctrine of the rule of law as it is perceived to be operational in our Nigeria legal system as the only instrument for the establishment of Justice as far as time, resources and other factors could permit. This research work has been circumscribed to the number of pages contained therein and the topic has been limited to few sub topics.

1.6     RESEARCH METHODOLOGY

The method employed was inspired by available educational and research materials. Ideas were gotten from textbooks and also online researchers were made to garner relevant information and materials for this project.

Personal research and ideas and thorough evaluation and analysis all summed up to the method and technique deployed in this project.

1.7     LITERATURE REVIEW   

          The rule of law has been an instrumental doctrine over time. The rule of law is a liberty centred constitutional concept which stipulates that everything must be done in accordance with the law. the rule of law is a distinguishable concept that refers to such ideals as government under the law, equality before the law and the independence and autonomy of the judiciary[9].

          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[10].

          Adopting the theory generally held in the Middle Ages, Bracton Writing in the thirteen century held the view that the world was ruled by law, human or divine and accordingly 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”[11].

          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[12].

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.[13]

          However, the widely accepted and authoritative definition of the concept was proffered by Albert Venn Dicey.[14]

          According to A.v. Dicey, the concept of rule of law connotes three things:

          Firstly, it connotes 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. Englishmen are ruled by the law, and by the law alone, a man may with us be punished for a breach of the law, but he can be punished for nothing else”[15] what this meant in essence is that governmental powers must be exercised in accordance with the ordinary prescribed law of the land. Accordingly, a person cannot be punished for an offence except the offence is known to law and the penalty thereof is prescribed in the ordinary law of the land[16], otherwise, an accused person cannot be liable for the offence.[17]

          The second meaning of rule of law according to Dicey is that it means equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. In this sense, the concept of rule of law excludes the idea of any exemption of officials or others from the duty of obeying law which governs other citizens or from the jurisdiction of the ordinary tribunals or courts[18]. Thus, every person no matter his status in life is subject to the ordinary law of the land.[19]

Thirdly, in Dicey’s view, the doctrine of the rule of law may be said to mean the existence and enforcement of certain minimum rights usually preserved by the constitution[20].

          In modern times, people with intellectual acumen and legal prowess have given their account of the Doctrine of the Rule of law.

          To Ben Nwabueze the rule of law is not just a doctrine about legality; if is not just a requirement that all executive actions of government affecting the individuals must be backed by and strictly in accordance with the law. It is a doctrine that requires that within the limits of the constitution, the law must circumscribe the discretion it grants to government in matters affecting the interest of the individual, so as to curtail as much as possible the scope of governmental arbitrariness[21].

          Ingwenyi[22] opined that the rule of law also means equality of all citizens before the law so that each citizen has equal right to be protected by the law and at the same time has equal right to resist any infraction into his person and/or interests in property.

          Elucidating further on the rule of law Malemi[23] sees the rule of law, as the observance, application and supremacy of civil or regular laws as opposed to arbitrary laws and arbitrariness, martial law, emergency law or military rule. It is the law which is reasonably justiciable in a democratic society[24].

          According to Mowoe[25], from Dicey’s three meanings, it could be inferred that in any given society, before the rule of law could be said to exist, the following must be in place:

a)     Supremacy of written regular law made by the law Materisi

b)    Certainty and regularity of law;

c)     Absence of arbitrary or wide discretionary powers of governments or its agencies

d)    Equality before the law;

e)     Administration of the law of the ordinary law courts; and

f)      Enforcement of some minimum rights.

Wade[26] expresses the view that Rule of Law connotes:

a)     Supremacy of law;

b)    All acts of government to be conducted within a framework of defined rules and regulations;

c)     No punishment outside the authority of the law;

d)    Equality before the law with recognized exceptions; and

e)    


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