ABSTRACT

The Rule of Law in Nigeria is expected to be the guiding principle of governance since it is the foundation of good governance, the experience in Nigeria foundation of good governance, the experience in Nigeria is to the contrary of ten violated the concept with carelessness and recklessness. This Research work get its source from both primary and secondary sources. The primary sources include; The 1999 constitution of the Federal Republic of Nigeria as amended, some other statutory enactments and case laws; which the secondary sources include, Articles from learned journals, textbooks, internet materials and other relevant materials necessary to enhance credibity of the project.The Rule of Law in Nigeria is a basic and dynamic legal concept which format the kernel of British democracy which was adopted in Nigeria, government must acknowledge that the Rule of Law is effective regulatory machinery that brings order and good governance. It makes total and critical review of the applicability and effectiveness of the concept in Nigeria under the 1999 constitution as amended, and recommend necessary solutions to the problem and to show the benefits inherent in the adoption and practice of democracy.     This project work examines the principles and practice of the Right of Law in Nigeria, the Rule of Law and the Nigerian Democracy since she obtained her political independent from the British Government on the 1st day of October 1960. It also examines the fundamental Human Right analyses and it extensively explains and discusses on its provisional binding on government and person, the co-operation of all persons and the necessity for protection of Human Right. As a result, the language of Human Right is increasingly being advocated as a framework for policy dialog.

TABLE OF CASES

Abacha vs Fahewimi (2006) NWLR pg 228

Adewole and Ors v Jakande and Ors

Agbai v Okagbue (1991) 7 NWLR (Pt 204) 391

Agbaroba v Director of State Security Service (1996)

All Nigerian Peoples Party and Ors v. Benue State Independent Electoral Commission.

Amachere v Military Governor Rivers State (1974 Unreported)

Archibishop Ogogie v Attorney General Lagos State

Attorney General Abia State v Attorney General of the Federation (No, 2 2002) 6 NWLR (Pt 764 542

Barron exrel, Tiernan v. Major of Baltimore, 32 U. S (7pt) 243, 8l Ed. 672 (1833) Darman v Minister of International Affairs 1981 IWCR25 Frohwerk v United States

Bello v Attorney General Oyo State (1986) 5 NWLR 820

Brown v Board of Education

Director of SSS v Agbakoba (1999) 3 NWLR (Pt 599) pg 314

Fox Music Corp v Aiken

Gitlow v New York (1925) 268 U.S 652

Government of Lagos State v Ojukwu (1986) (Pt.18) 621

Governor of Lagos State v Ojukwu (Supra)

Kalu v EFCC

Labiyi v Anretiola (1992) 8 NWLR (Pt. 258)

Malone v. Metropolitan Police Commissioners (1979)2 WLR 700

New York Times co v. United States

Nzo Oku v Ezerunu 1991 6 NWLR

Okogie v Attorney General Lagos State (1981) NCLR

Olmstead v United States (1928) 277 U.S 488

Phillips v Martin Merretta Corporation

Plessy v Ferguson

Red Lion Broadcasting co v Federal Communication

Reed v Reed

Safekun v Akinyemi and Ors

SC. 215/2012) (2010) NGSC 34 18 March 2016

The Federal Republic of Nigeria v Ifegwu (2003) 5 SCNJ 217

Ukaegbu v Attorney General Imo State (1981) IMSIR 149 (1983) 1 SCNLR 212 (1983) 12 SC 481

United States v. Letter Carries Ltd (1973) 413 U.S 548

Uzougu v Ezeonu (1991) 6 NWLR (Pt200) 708 at 763

TABLE OF ABREVIATION

A.B.R – American Bill of Right

A.C.H.R.P.R – African Charter on Human Right and peoples Right

C.F.R.N – Constitution of the Federal Republic of Nigeria

C.O.H.R – Carro Decleration on Human Right

C.R – Convention on Refages

E.B.R – English Bill of Right

E.C.P.H.R – European Convention on protection of Human Right

F.H.R – Fundamental Human Right

I.C.C.P.R – International Convention on Civil and Political Right

I.H.R – Inter American on Human Right

I.N.E.C – Independence National Electoral Commission

L.O.L – Leags of Law

M.C – Magna Carta

N.A.D.I – Nigerian American Declaration of Independence

N.C.R – Nigerian Constitutional Right

N.L.R – Nigeria Law Report

N.M.L.R – Nigerian Monthly Law Report

N.P.F – Nigerian Police Force

N.W.L.R – Nigeria Weekly Law Report

O.A.U – Organisation of African Unity

O.H.C.H.R – Office of the United Nations High Commissioner for Human Rights

S.C.N.L.R – Supreme Court of Nigeria Law Report

U.D.R – Universal Decleration of Right

W.C.H.R – World Conference on Human Right

W.S.O.D – World Summit Outcome Document

CHAPTER ONE

1.0              Introduction

Rule of law and democracy are both legal and political issues which have gained attention not only in Nigeria but the world over. In general, both form the basis of advocacy of most international bodies or institution, with the intention of sustaining and maintain 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 itrself1. 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 systems2. Without the rule of law, societies will be in a perpetual 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

1     Section 36(12); Aoko v Fagbemi (1961) ANLR 400

2     Ibid

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 the 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 impurity, such we have witnessed in Nigeria before 19993, creates the despondency leading to revolt as we have seen in part of North Africa and the Middle East4. 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 death with wickedly either by the government or his compatriots. This is because, by the rule of law, both the rulers ruled are equal before the law. So where such infringement on citizens rights occur, firstly, it is a clear departure from the rule of law; and secondly, it

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’

entitles the citizens free access to the judicial processes in order to ventilate their grievances5.

The rule of law is both a deterrent and a shield6. 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 law7. 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 taking 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

5  Ibid                                        

6  Ibid

7  Section 36(1) 19998 Constitution of the Federal republic of Nigeria. Ifeanyi Nnwnakwu & Anor v Oraegbunam Aniete [2002] 2 NWLR (Pt. 752).

given society8. From the foregoing, it is apparent that rule of law and human right 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 hand9,

1.1              Background of the Study

Most civilized countries of the world practice democracy because of its inherent characteristic 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 of societal civilization10.

8     Kayode A, ’10 Years of Democracy in Nigeria’

9    Uchenna E, ‘Rule of Law and Human Rights Development’

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)

Thus, as the practice of democracy is the yardstick for international relationship, Nigeria, during military era, was for many years debated from some international organizations; notably, the commonwealth of Nations11.

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 governments 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 the study.

1.2              Statement of the Problem

It is known fact that a major challenge to the promotion of rule of law is the lack of constitution and constitutional democracy. The problem has not been the absence of constitutions, but rather the ease with which constitutional

11    Human Right Watch, ‘Transition or Travesty: Nigeria’s Endless Process of Return to Civilian Rule’

provisions are abrogated, subverted, suspected or brazenly ignored. There is also the prevalent of widespread impurity for government actors and elites, increasing violent crime, political instability, pervasive corruption, all of which present huge challenges to the rule of law in Nigeria. Hence, the basis for the study.

1.3              Objectives of the Study

The objectives of this study are:

1. To make the readers to know more about the concept of the rule of law and democracy;
2. To make total and critical review of the applicability and effectiveness of the concept in Nigeria under the 1999 constitution, so as to look into the 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 highlight 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
6. To show the benefits inherent in the adoption and practice of democracy.

1.4              Scope and Limitation of the Study

Democracy and rule of law are concepts which have been recognized throughout the world; and the both have become practices of most countries 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 Nigeria democracy under the 1999 constitution. Teme constraints and finances have also combined to limit the coverage of the work.

1.5       Methodology

Materials are sourced from both primary and secondary sources. The primary sources include the constitution of the Federal Republic of Nigeria, 199912, some other statutory enactments and case laws; while the secondary sources include textbooks, articles from learned journals, internet materials and other

12  Cap. C23, LFN 2004

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 law13, 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

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