THE RULE OF LAW, IT’S IMPLEMENT ON NIGERIA LEGAL POLICY.

ABSTRACT

In the words of Justice Anthony Kennedy, “the term rule of law is often invoked yet seldom  defined. Every given Country ought to be governed by the rules, acts, regulations, customs, tradition that are deemed fit and right in the society where we finding ourselves. I can say this is  otherwise called the Precept of a Legal Constitution. Been a Graduate of Philosophy,  etymologically I have come to realize that Rule of Law as a Legal term has it’s foundations in  Philosophy which we’re propounded by early philosophers such as: Aristotle, Platform, John  Locke etc. I believe there should be a rule governing every law. In other words, there are  guidelines on every law been enacted for every individual that make up the society to faithfully  adhere.

This will delve us further into knowing the Rule of Law operational policy in Nigeria as a  defined entity or geographical territory the impact, use, merits and demerits, the impact it has.  This Article contributes to the ongoing discourse by setting forth principles that form the central  tenets of the rule of law. This Article also identifies five additional principles that might be  added to the list of principles defining the rule of law. This continued definitional quest is  important, because to the extent we can more clearly identify the principles of the rule of law, we  can more effectively support the legal and political reforms that will advance it.

INTRODUCTION

My Topic of emphasis is on the discourse of the rule of law, its implements on Nigeria’s legal  policy.

There are two main terms we need to take cognizance of. “RULE AND LAW.”

Rule: is a prescribed guide for conduct or action. It is a legal precept or doctrine that affect how a  country will be governed under the kind of government best suited for such state to be governed  by.

Law: is a rule of conduct or action prescribed and also the whole body of such customs, practices,  or rules. This will delve us further into knowing the Rule of Law operational policy in Nigeria as  a defined entity or geographical territory the impact, use, merits and demerits, the impact it has.

This Article contributes to the ongoing discourse by setting forth principles that form the central  tenets of the rule of law. This Article also identifies five additional principles that might be  added to the list of principles defining the rule of law. 

The grounds for rejecting natural laws are obvious as they are incompatible wth legal objectivity.  This continued definitional quest is important, because to the extent we can more clearly identify  the principles of the rule of law, we can more effectively support the legal and political reforms  that will advance it.

HISTORICAL BACKGROUND OF THE RULE OF LAW

Research has it that the etymology of the rule of law propounded as a theory started from the  early Greek philosophers otherwise known as the Golden age philosophers. The origins of the  Rule of Law theory can be traced back to the Ancient Romans during the formation of the first  republic; it has since been championed by several medieval thinkers in Europe such as Hobbs,  Locke and Rousseau through the social contract theory. The expression ‘Rule of Law’ has been  derived from the French phrase ‘la principle de legalite’, i.e. a Government based on the  principles of law. The Rule of Law is one ideal in an array of values that dominates liberal  political morality: others include democracy, human rights, social justice, and economic freedom.  The plurality of these values seems to indicate that there are multiple ways in which social and  political systems can be evaluated, and these do not necessarily fit tidily together. Some legal  philosophers (e.g., Raz 1977) insist, as a matter of analytic clarity, that the Rule of Law in  particular must be distinguished from democracy, human rights, and social justice. They confine  the focus of the Rule of Law to formal and procedural aspects of governmental institutions,  without regard to the content of the policies they implement. But the point is controversial. As  we shall see, some substantive accounts have been developed, which amount in effect to the  integration of the Rule of Law with some of these other ideals. The idea of rule of law, traceable  to ancient scholars, most major legal tradition resonates.

In other words, from my perception, Rule of Law is the rule or order that it is advisable or  obligatory to adhere to, especially for smooth running of the affairs of the state. 

According to world justice project, Rule of Law is a durable system of laws, institutions, norms  and community commitment that delivers an orderly governance to the people.

Rights are permissive, as well as other freedom/right/ privileges that ought to be exercised in the  society.

Hence, bringing THE RULE OF LAW as an accepted legal practice, and it’s implement in  Nigeria.

As at 2024, Nigeria rank 120 by 40 percent on the adherence to the Rule of law.

THE RULE OF LAW IN NIGERIA’S LEGAL SYSTEM

The entity Nigeria was found by Britain following the amalgamation of the northern and  southern protectorates in 1914. Before the coming of the colonial masters, the Nigerian people  existed as different, independent and unrelated entities. Muslims constitute the majority  population in the northern part of the country. Islam came to northern Nigeria through Kanem  Borno Empire. The activities of Arab merchants who came to the region for trading were  instrumental to the spread of Islam in Borno. Other parts of northern Nigeria (Hausa Land) also  came into contact with Islam through trading. Though the Hausa community accepted Islam,  they however mixed the practice of Islam with traditional idol worshipping. This resulted in the  waging of jihad on the Hausa Kings by Sheikh Usman Dan Fodio in order to sanctify the practice  of Islam in Hausa land. After the Sokoto Jihad, most part of the Hausa land embraced Islam and  actively practiced Sharia. Some parts of the north have a significant population of Christians. It  is argued that the reason for the amalgamation was not just political but also economic. 

Legislation is a potent and formidable source of Nigerian law. Generally, Nigerian legislation is  divided into primary and secondary legislation. Primary legislation refers to those laws made by  a body or arm of government that is primarily responsible for law making. For example laws  made by the National Assembly, State Houses of Assembly or Military Administration during  Military era. All the Federal laws made by the federal government of Nigeria were published in a  series of 24 volumes document in 1990.This was revised in 2004 in a 16 volume document  containing all Acts and subsidiary legislations that were in force on 31st December, 2002. This  has significantly helped all those involved in the practice of law especially judges, lawyers and  academicians to have an easy grasp of almost all the laws in Nigeria.

RATIONALE FOR THE RULE OF LAW

The implementation of the Rule of Law ought to be free and fair for everyone, ensuring:  Transparency, Predictability, Stability, Accountability and Enforceability.

This Article reflects how Rule of Law is generally observed globally and how it ought to be  observed generally. Rule of Law is very imperative in every country governed by the Precept of  a Legal Constitution. 

There is a mantra that “where there is no law, there is no sin”. Hence, a lawless society will lead  to much greater chaos and disorderliness. 

Primary responsibility of the court is the interpretation of the laws made by the legislature and  not to serve as a law making body. Since Nigeria’s historical link with Britain around 1861,  English law has remained a major source of the Nigerian Law.49 By virtue of the Colonial Laws  Validity Act 1865, the Crown can legislate by Order-in-Council for any colony, protectorate or  trust territory under the colonial Administration. And Nigeria being a Colony of Britain was  subjected to the laws or enactments made by the Colonial Administration. Similarly, no local  legislation could alter any common law provision. The umbilical connection between Nigeria  and Britain has remained valid and strong up to this day. Section 45 of the Interpretation Act  clearly states “Subject to the provisions of this section and except in so far as other provision is  made by any federal law.

The concept RULE OF LAW is important in every law abiding country, its importance cannot be  over-emphasized. However these are peculiar reasons for establishing rule of law in every given  Country are thus:

Promotes Justice and Fairness: ensuring everyone is subject to the law uniformly to promote  justice and fairness. 

Human rights are protected such as life, liberty and properties etc.

Fostering good governance: This is imperative for effective functioning of a democratic  government.

Thus, the Foremost legislative background of the idea behind the concept of THE RULE OF  LAW started with the ideas of ancient Greek philosophers who postulated the position that the  best form of government was rule by the best men, that was Plato’s imaginary concept of been  ruled by a Philosopher King ( someone above the law). So, the essence and objective of the rule  of law, its implements on legal policy in any democratic state is that all individuals, institutions,  and those in position of authority are subject to the same laws, which simply translated to “no  one is above the law.”

CRITICISMS FOR AND AGAINST THE RULE OF LAW.

In Adewale versus Jakande, Omolulu J, while interpreting section 32 of the Nigerian 1979  constitution which is identical to section 35 of the 1999 constitution held that the closure of  private schools will amount to interference with the personal liberty of parents to train their  children as they deem fit. The implementation of the Rule of Law ought to be free and fair for  everyone, ensuring: Transparency, Predictability, Stability, Accountability and Enforceability.

The notion of the rule of law is reflected in the decision of the Supreme Court of Nigeria in the  case of Governor of Lagos State versus Ojukwu, where the Court held that the Nigerian  Constitution was founded on the rule of law whereby everything must be done according to law.  Specifically, the Court held that: ‘The Nigerian constitution is founded on the rule of law, and  the primary meaning of which is that everything must be done according to the law. It means  also, that Government should be conducted within the framework or recognised rules and  principles which restrict discretionary power which COKE Colourfully spoke of as ‘Golden and  straight wet wand of law as opposed to the uncertain and crooked cord of discretion.’’

The Court further stated that the rule of law presupposes:

1. That the state is subject to law.
2. That the judiciary is a necessary agency of the rule of law.

Philosophically, the rule of law should be seen as the absolute law guiding the affairs of the state,  and it should be acknowledged as the supremacy of the constitution. However, there are some  limiting factors that tend to limit the RULE OF LAW from been entrenched in the constitution of  a democratic country. There are positions that states that the RULE OF LAW should not be the only supreme law. Rights do not emanate from the judicial decisions alone. Every tier of  government have their functionality and specific roles to ease the workload of governmental  responsibilities. The Rights to the Law are shared among the 3 tiers of government which are the  Legislative, Executive and the Judiciary. Making law for the general public cannot be made  solely, but collectively. However we can’t substitute natural laws for proper laws because natural  laws are what has been passed down from one generation to the other. And natural laws are not  laws that can be written down in the constitution. Hence, the need for the RULE OF LAW to be  made and enforced in the constitution to regulate the excesses of those in authority and every  individual in the country. Some opine that the Rule of Law in itself is not sufficient. The Rule of  Law was propounded to curb the excesses of every individual in a democratic country, it seeks to  emphasize that; “No one is above the law”.

That everyone is equal before the law, and there should be freedom of bias and favouritism.  These two terms: “EQUALITY AND EQUITY”. These should be emphasized in every  democratic state. However, Lack of equality before the law comes into play when there is  Bribery, Tribalism and Nepotism.

EXCEPTIONS TO THE RULE OF LAW IN NIGERIAN LEGAL SYSTEM.  The Legal Mantra states that: To every law, there’s an expectation is so true itself.

Exception here means a particular thing, person or situation that is not included in a general  statement, judgment or rule. In other words, the rule is always been followed except when there’s  an exception, when there is an exception for the law, a new rule is followed, based on such  exception.

Dicey has given meanings of the rule of law. According to him, “It means in the first place, the  absolute supremacy or predominance of regular laws as opposed to the influence of arbitrary  power and excludes the existence of arbitrariness, of prerogatives or even of wide discretionary authority on the part of the Government. Prof. Dicey while elaborating the equality of all before  law, says, “With us every official, from the Prime Minister to a constable or a collector of taxes,  is under the same responsibility for every act done without legal justification as any other  citizen”.

Thus, according to Dicey, the Rule of Law may be used as a formula for expressing the fact that  with us the law of the constitution, the rules which in foreign countries, naturally form part of the  constitutional code, are not the sources but the consequences of the rights of individuals as  defined and enforced by the courts….. It means that the main principle of the constitution, such  as the right to personal or of public meeting, has been set up on the foundation of the old  common law and not as things derived from any general Constitutional Theory.

The Law should apply to everyone equally, regardless of their status in the society.

RELEVANCE OF THE RULE OF LAW IN MODERN NIGERIAN LEGAL SYSTEM. 

The concept of the rule of law is to have a standing rule to live by, Common to everyone in the  society and made by the Legislative power. The relevance of having a legal system in Nigeria is  to provide a backbone or framework for resolving disputes, and maintaining order.

An example of the “rule of law” is “freedom of the press”.

In1959, there was another conference in Delhi, India (International Commission of Jurists: 1959),  in which the meaning and scope of concept was re-examined and a communiqué issued that: The  rule of law is recognized as a dynamic concept for the expansion and fulfillment of which jurists  are primarily responsible and which should be employed not only to safeguard and advance civil  and political rights of individual in a free society but also to establish social, economic, cultural  and educational conditions under which his legitimate aspiration and dignity may be realized.  (International Commission of Jurists: 1959) 

In 1961, in Lagos, Nigeria, the Delhi declaration was re-evaluated and contained in a document  called “The Law of Lagos” which in its declaration stated that the concept is a dynamic concept  which should be employed to safeguard and advance the will of the people and the political  rights of the individuals to establish rights of the individual to establish social, economic,  educational and cultural condition under which the individual may achieve his dignity and  realize his legitimate aspirant or independent.” (International Commission of Jurists: 1961). The  rule of law can therefore be seen to have metamorphosed from its original conception as a  natural law divine.

3 VITAL ASPECTS ABOUT THE NIGERIA LEGAL SYSTEM.

A) Constitutional Supremacy in Nigeria:

Supremacy is the state of having the ultimate authority. It is a position where power is vested on  with B. The Place of Constitutions as “Supreme Laws” Constitutional Supremacy is the ability vested on the state to establish a hierarchical primacy  within the sources of law, In other words, the constitutional Laws are the most supreme and it is  documented in the constitution.

According to the constitution of the federal Republic of Nigeria 1999, the arrangement of the  section is thus: General Provisions, Fundamental Objectives and directive principles of state  policy, Citizenship, Fundamental rights and the Legislature, The Executive, The Judicature.

Now, the constitution of Nigeria is the most highest and supreme law of the land. The provisions  of the constitution have binding force on all supreme authorities and individuals throughout the  Federal Republic of Nigeria.

Four Sources of the Nigerian Legal System will include: 

∙ The English Law: The Influence of colonialism resulted to the Adoption of the English  Laws into Nigerian Legal System. 

∙ Nigerian Legislations: This constitutes the Act of Parliament known as the Legislature,  and the State House of assembly that make up every Nigerian states.

∙ Islamic Law: This is otherwise known as Sharia Law. It is the religious law governing  Islam 

∙ Customary Law and Case Law: This is not applicable in criminal law according to  section36 (12) of the constitution.

The position which has been taken by the courts is to consider the facts of each case with its own  surrounding circumstances, while abstaining from creating any general rule. Such was the  situation in Cole v. Cole and Bakare v. Coker.

B) Protection of Human Rights:

Human rights are those privileges a citizen of a given country enjoys. Some of these are:  Freedom to life, properties, movement etc. These rights are expressly stated in the constitution of  every given Country. However there can be some infringement on such rights especially during  emergency period, the law becomes an ass, MEN will go haywire and do what they like just as it  was the case in the primitive era or society ( of the early men), an uncivilized society and would  be taking Laws into their hands.

There would be confusion everywhere, chaos and all forms of social tensions, people’s right to  private life and liberty, property ownership and freedom of movement would be limited or  abused. State of emergency is like wartime situation where there is violence and confusion  everywhere. Little is said on safety and security as part of the fundamental human rights may be  guaranteed. Section 37 of the 1999 constitution provides that:

C) Separation of Powers and Checks and Balances:

Nigeria as a country operates under a democratic government otherwise known as a Presidential  system of government. The First arm is the Executive body, they implement and enforce the Law  go every individual in the society. And the executive power is vested by the president of the  country. The legislative power is vested by the Senate House of Assembly which is headed by  the senate president. The Second arm is the Legislative body. They make the Law that governs  the country. It is divided into 2 Chambers. That is; the upper chamber: This comprises of the  House of Senates; and the Lower Chamber: This comprises of the House of Representatives.  However, the House of representatives is headed by the Speaker of House of Representatives.  Nigerian Legal System operates a by-camera Legislature since it consists of two chambers. The  Third arm is the Judiciary Body headed by the Chief Justice of the Federation. This arm are the  interpreters of the law. It states how the law should be uphold in High esteem. 

CONCLUSION AND REFERENCES.

In conclusion, corruption has had a significant impact on the rule of law and the effective  administration of justice in Nigeria. Corruption undermines the principle of equality before the  law and weakens the judiciary and other law enforcement agencies. The Nigerian legal system  has established anti-corruption agencies to combat corruption.

Beyond these generalities, it is controversial what the Rule of Law requires. This is partly  because the Rule of Law is a working political idea, as much the property of ordinary citizens,  lawyers, activists and politicians as of the jurists and philosophers who study it. The features that  ordinary people call attention to are not necessarily the features that legal philosophers have  emphasized in their academic conceptions. Legal philosophers tend to emphasize formal  elements of the Rule of Law such as rule by general norms (rather than particular decrees); rule  by norms laid down in advance (rather than by retrospective enactments); rule by norms that are  made public. It is essential that legal authorities continue to work towards upholding the rule of  law and the effective administration of justice in Nigeria.

CASES

International Commission of Jurists: 1959

Adewale versus Jakande, Omolulu J, section 32 of the Nigerian 1979 constitution  Cole v. Cole and Bakare v. Coker

Federal Republic of Nigeria 1999 constitution 

Supreme Court of Nigeria; Governor of Lagos state versus Ojukwu.

REFERENCE(S):

The Declaration of the rights of man and of the citizen 1789

Nnamdi Azikiwe Journal of Philosophy. Volume 9, No 1. International Journal of Business,  Economics and Law, Vol 5 Issue 4 (Dec) ISSN 2289-1552 World justice project.org

Omoregbe, J. (2010). Socio-Political Philosophy. A Systematic and Historical Study. Lagos:  “2022 Corruption Perceptions Index”