Rule of Law

Rule of Law

RULE OF LAW

MEANING:

Rule of law may simply be defined as a situation where law is the supreme regulator of public and private life in a society.

More technically, A.V Dicey has conceived it as;

In this conceptualization of law, there are three important understanding of it;

SUPREMACY OF LAW: 

This appears to be one meaning of rule of law that is capable of being absolutely enforced. Societies should be ruled by law and law alone. Public and private life must be carried on according to law, and the law determines how institutions of government work and interacts with one another. This is constitutionally provided for in Section 1 of the 1999 Constitution, particularly subsections 1 and 3.

The constitution guarantees the rule of law. The constitution has already begun this journey in Section 1, by providing that all persons and authorities are bound by the constitution and no law can supersede the constitution. The implication is that all authorities must follow duly laid down processes in the constitution no matter how inconvenient it might seem. In Obeya Memorial Hospital v A. G. Federation and Ors. (1987) 3 NWLR pt. 60, p. 325 SC at 343, Obaseki JSC stated profoundly, “the courts of law are established both for the people and the government or authority. The government should not shy away from making use and taking advantage of the process of the court of law. It is a misconception to think that the measured speed with which the processes of court travel is too slow for the military government.”  According to A.V. Dicey, rule of law 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. English men are ruled by 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.”[ A.V. Dicey. 1885. The Law of the Constitution. London, 10th ed. P. 202.] The cardinal branches of the rule of law include; supremacy of the law, which is guaranteed by the constitution. It presupposes that governments and citizens act according to the law of a state. As Herring CJ put it in Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee; (1945) 72 CLR 137 at 166, “it is not the English view of the law that whatever is officially done is law…on the contrary, the principle of English law is that what is done officially must be done in accordance with law.”

EQUALITY OF PERSONS BEFORE THE LAW:

This is the rock upon which rule of law is founded. It is in fact the corner stone of what is fair and just. It is what gives law a general acceptance in the society. It means no more than this, that the law should be applied equally between persons irrespective of status and standing in the society. The law is therefore above all in the society. In Gouriet v Union of Post Office Workers, (1977) 1 QB 729 at 761-762 Lord Denning stating the position of the law on equality said: “to every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: ’Be you ever so high, the law is above you.”

This is the philosophy behind the blindfold of the lady justice; it is only on that imaginary scale, and not on anything else, that justice can be done. However, the situation in Nigeria shows that the rule of law does not yet reign supreme. Sometimes, and this is by every standard despicable, judgements are made to reflect the status and standing of the persons involved. It is however important to say that though justice is blind, it is by no means totally blind. The law sometimes, and for good reasons, apply to persons unequally. Thus, first offenders may be warned or get lighter punishments, while renown criminals get stiffer punishment. Age and sometimes the circumstances of an offence can also make for an uneven application of law

A question that arises is this: Is the exercise of discretion by law enforcement officers and judges contrary to rule of equality before the law?

Certainly, an exercise of discretion is inherently an indication of inequality. This is simply because law enforcement officers cannot and do not apply the law evenly at all times and in all circumstances. They do, and should exercise discretion in their enforcement of the law. The problem appears to be when such exercise of discretion is not good faith, but has otherwise been induced by corrupt practices

HUMAN RIGHTS

Rule of law according to A.V. Dicey includes the recognition and respect for fundamental human rights. Fundamental human rights it has been acknowledged is the grey matter of human existence. Though its scope may vary between nations and differ in content, yet it is almost universally accepted that all human beings possess a set of fundamental human rights which is the business of the law to protect. It is further understood along this line, that no individual should be denied their fundamental human right except according to the process of law.

Fundamental human rights are by their nature fundamental, that is to say that they are fundamental for the orderly and civilized existence of members of the society. According to Oputa JSC, ”it is because each human being has intrinsic worth that we talk of fundamental rights or the inalienable rights of man—why are these rights inalienable? The simple answer is that they attach to man because of his humanity. Without them, there is automatic diminution of his humanity.” [Cited in Ese Malemi op. cit.. pg. 145.] The antithesis of a withdrawal or denial of fundamental human rights is the subjection of humans to slavery and servitude. Kayode Eso JSC, in Ransome kuti v A. G. Federation(1985) 2 NWLR (pt. 6) 211, “But what is the nature of a fundamental right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilised existence.”  It is therefore important that humans, in order to remain humans, must necessarily continue uninterrupted enjoyment of their rights. In the words of U. Thant, a former Secretary General of the United Nations, “the nature and value of this most precious asset (human rights) is increasingly appreciated as we see how empty organised life becomes when we remove or suppress the infinite variety and vitality of the individual.” [Cited in Ese Malemi op. cit. pg. 145 ]

However, it needs to be pointed out that the rights enjoyed or enjoyable by persons, by virtue of their humanity, do not accrue to such a person by the generosity of the state, but by the virtue of their humanity. J. F. Kennedy once said; “the rights of man came not from the generosity of the state, but from the hand of God.” [Cited in Ese Malemi op. cit.. pg 145] Putting it in a different way, the rights supersede the state and are antecedent to the state. Kayode Eso presented the matter tacitly in his paper when he said; we could only talk of a ‘journey’ in regard to human rights in terms of movement from the old attitude to the new; for human rights, it must be appreciated, have existed from the beginning of time.” [Kayode Eso. 1993. Judge-Lawyer Co-Lawyer Co-operation in the Protection of Human Rights. Individual Rights Under the 1989 Constitution, NIALS p. 81] In Saude v Abdullahi (1989) 4 NWLR Pt. 143, p. 144 SC,  Kayode Eso JSC took a multi-causal stance, neo-earthly, neo-divine of human rights when he said fundamental human rights were “…Not just mere right. They are fundamental. They belong to the citizen. These rights have always existed even before orderliness prescribed rules for the manner they are to be sought.”

Our fundamental human rights in Nigeria is enshrined and protected under Chapter IV of the 1999 Constitution.  The judiciary has been described as “the bulwark of the liberty of the citizens.” [See Nnamdi Azikiwe. 1965. Essentials for Nigerian Survival. Foreign Affairs, Vol. 43, No 3, 1965, p. 451.] The courts are therefore always prepared to protect the rights given by the constitution. See Director, SSS v Agbakoba (1994) 6 NWLR pt. 351; Garba v Federal Civil Service Commission (1988) 1 NWLR pt. 71 p. 449 SC. According to Kayode Eso JSC, “there is no justification for the existence of the judiciary except in its existence for the defence of the citizen, for the citizen to put his views across with all potency, for him to feel and breathe the air of freedom around him.” [Cited by Prof. I. O. Agbede, “The Rule of Law and the Preservation of Individual Rights”, Individual Rights Under the 1989 Constitution, NIALS, 1993, p. 30 at 40.]

The concept of rule of law has been expanded into the following;

INDEPENDENCE OF THE JUDICIARY:

It is difficult to imagine a situation of rule of law without independent judiciary. How can everyone be equal before the law if the judiciary is controlled by external forces and dictated what to do? How can everyone be under the law if the courts cannot enforce the law without interference? What will become the fate of the fundamental human rights of the citizens in the face of abuse hy the state if the judiciary is controlled by the state?

It is easy to see that independence of the judiciary is integral to rule of law. Attached to this importantly, is that judgements of courts must be obeyed. It is of no use to say that courts are independent, if their judgements cannot be obeyed. There seems to be a growing concern in Nigeria about the rate at which people and government institutions in particular, float court rules.

CREDIBLE ELECTIONS:

This presupposes the existence of an independent electoral umpire. For rule of law to thrive, elected officials must hold their office by mandate of the people, who can remove them if they are not satisfied with their performance.

INDEPENDENT MEDIA

The importance of the media is no longer an issue that is up for debate. If the rule of law will thrive anywhere, then the media must be independent to expose abuse of state privileges and powers.

The relevance of the Press and freedom of expression cannot be denied in a democratic society. It has been held to be the foundation of modern democracies, as an informed citizenry is in fact the backbone for the sustenance of true democracy. See Okunowo Oladele. 2014. Constitutional provisions of the freedom of the Press and their limitations in Nigeria. International Journal of Management Sciences and Humanities Volume 2, Number 2, 2014, p. 135-152; “The freedom of expression and of the press is essential for the formulation of sound policies; opinions should be allowed to be expressed without fear of being harassed, molested or intimidated.” [P. 136.] Section 22 of the 1999 Constitution, which provides that: “the press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this chapter and uphold the responsibility and accountability of the government to the people”. The relevance of the press in the quest for having true and informed citizenry has been far too established to attract further comments.

The constitution guarantees these rights in Section 39 when it provided that every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference. Professor Akande has argued that the question here is, whether the provision of Section 39(1) which is the equivalent of Section 36 (1) of the 1979 Constitution is equally sufficient for the protection of the press. She further argued that there should be a clear provision in absolute terms protecting the press akin to the provision of the American Constitution which provides that: “Congress shall make no law abridging the freedom of the press”. [Jadesola O. Akande (1982). The Constitution of the Federal Republic of Nigeria 1979 Sweet & Maxwell, London p.36. ] The Constitution goes further to provide that every person is entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions.

According to Ese Malemi, “the right to freedom of expression and the press as guaranteed in the constitution is prima facie sufficient to protect the press.” [Ese Malemi. Op. cit. Pg. 301]

It is equally of importance as has been underscored, regular access to information will not only lead to the empowerment of the people but will also prevent them from living on rumours and half truths. Freedom of information is deeply implicit in this right, and has been held together with the freedom of press to be one of the indices of a democratic state. [E. Malemi, p. 301) Freedom of information has therefore been defined as the right to access information and the right to free expression of opinion, that is, the right to freedom of speech and freedom to publish. [See S Hameso ‘Politics of freedom of information in Africa’ (1995) 26 Focus on International and Comparative Librarianship 156.] It subsumes the right to access information held by public institutions, that is, official information. [See Section 1 of the Freedom of Information Act, 2011.] The courts have had the opportunity of pronouncing on this right. In Tony Momoh v The Senate (1981) 1 NCLR 105, it was held that asking a new newspaper editor to disclose his source of information is a breach of his freedom of expression. A similar decision was also reached in Oyegbemi and Others v AG of the Federation and Others. (1982) 3 NCLR 897. However, in The Queen v Amalgamated Press of Nigeria Ltd and Another, (1961) 1 ALL NLR 199,  it was held that the Constitution could not be used to spread false news likely to cause false alarm to the public. There is the conflicting decision in DPP v Chike Obi, (1961) 1 ALL NLR 1, where the accused person was convicted of sedition, and Nwankwo v The State, 175 (1985) 6 NCLR 228, where the Nigerian Court of Appeal held that the offence of sedition was unconstitutional. The United States Supreme Court has held in Twentieth Century Fox Music Corp v Aiken that “a prior restraint on expression comes to…court with a heavy presumption against its unconstitutionality.” [Cited in Ese Malemi. Op. cit. Pg. 303]