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

CHAPTER ONE

GENERAL INTRODUCTION

1.0 INTRODUCTION

The rule of law and democracy represent significant legal and political concepts that have drawn considerable interest not only in Nigeria but across the globe. Broadly speaking, they serve as foundational pillars advocated by numerous international organizations and institutions aimed at promoting and preserving global peace.

The rule of law is a fundamental principle asserting that no individual is above the law, that no one may be punished by the state except for violating the law, and that no person can be found guilty of breaking the law except through procedures explicitly outlined by the law itself. This principle directly opposes the notion that leaders are exempt from legal accountability a characteristic of ancient Roman, Nazi, and various other historical legal systems.

In the absence of the rule of law, societies would remain in a constant state of conflict. Just as adherence to grammatical rules is necessary for coherent communication, a society must observe the rule of law to sustain peace and stability. Thus, the rule of law is essential for upholding public order.

During elections, political parties actively seek votes. A party that secures victory through a majority of votes acquires the legitimate authority to govern in accordance with the rule of law. Any deviation from this constitutes not the rule of law but the rule of man, influenced by personal whims and caprices that rarely align with the genuine interests of the populace. Consequently, any manifestation of arbitrariness and impunity such as that experienced in Nigeria prior to 1999 fosters widespread despondency and can spark revolts, as witnessed in parts of North Africa and the Middle East.

Majority rule establishes the legitimate legal foundation for legislative governance within a state. Laws enacted to regulate the political, economic, and social affairs of a nation are indispensable for establishing the rule of law. The primary functions of law include fostering an orderly environment in society, which in turn supports the peaceful development of the state.

One key function of laws is to clearly define the rights and obligations of citizens. No individual should be subjected to unjust or malicious treatment by the government or fellow citizens. Under the rule of law, both rulers and the ruled stand equal before the law. Therefore, when infringements on citizens’ rights occur, this represents, first, a clear violation of the rule of law; and second, it grants affected citizens unimpeded access to the judicial system to seek redress for their grievances.

The rule of law functions both as a deterrent against wrongdoing and as a protective shield for citizens. For it to be effective, the legal system must operate efficiently, ensuring that justice is not unreasonably delayed. The rule of law does not tolerate protracted cases; for instance, when courts repeatedly adjourn matters on the cause list for over a decade, this amounts to “justice delayed is justice denied,” which undermines the rule of law. Similarly, practices where lawyers frequently seek extended adjournments, file preliminary objections, or pursue unnecessary appeals to obstruct judicial proceedings do not support the rule of law.

The concepts of the rule of law and democracy are two sides of the same coin and are therefore inseparable. This means that discussion of one inevitably involves the other. As articulated by a prominent legal and political figure: “Democracy is the complete application of rule of law and human rights in any given society.”

From the above, it is evident that the rule of law and human rights are intrinsic to democracy. Any system claiming to be democratic but lacking these elements cannot truly be considered democracy. The rationale is straightforward: democratic governance upholds the rights of the people including the right to life, personal liberty, freedom of movement, the right to own and dispose of property, the right to choose representatives in positions of authority, and the ability to remove them when necessary while simultaneously affirming the supremacy of the law of the land. This law binds both rulers and the ruled alike, demands obedience, imposes sanctions for disobedience where appropriate, and guarantees equality in the enjoyment of protected rights.

It is therefore submitted that democracy serves as a crucial test for good governance. Any state that fails to embrace this principle has not yet attained meaningful progress and remains distant from genuine development. Accordingly, the purpose of this study is to examine the applicability and effectiveness of the rule of law one of the key determinants or benchmarks of democracy under the 1999 Constitution of Nigeria, with the aim of assessing whether true democracy exists in the country.

1.1 BACKGROUND OF THE STUDY

Most civilized nations around the world embrace democracy due to its intrinsic qualities that promote sustainable development across all spheres: political, social, economic, cultural, and in international relations. Many political and legal scholars have therefore described democracy as the soul of any lasting political system and the hallmark of societal advancement.

As the practice of democracy has become a standard for international engagement, Nigeria was excluded for many years during its military era from several international bodies, most notably the Commonwealth of Nations. This exclusion stemmed from the fact that respect for fundamental human rights has been a core objective of most international organizations since the end of World War II, pursued to foster global peace and stability.

It is therefore pertinent to note that democracy has emerged as the universally accepted and most effective system of government. This is because it is the only system in which the rule of law and fundamental human rights are most firmly entrenched and enjoyed. This reality forms the basis for the topic of this study.

1.2 OBJECTIVES OF STUDY

The objectives of this study are as follows:

a. To enhance readers’ understanding of the concept of the rule of law and its practical application;

b. To conduct a comprehensive and critical examination of the applicability and effectiveness of the rule of law in Nigeria under the 1999 Constitution, identifying its achievements and challenges, and proposing viable solutions to the identified problems;

c. To assess the roles played by governmental institutions in either advancing or hindering the concept in Nigeria;

d. To explore any positive or negative connection between the judicial arm of government and the effective implementation of the rule of law;

e. To highlight to the global community the significance and impact of the rule of law on democracy, their interrelationship, and its contribution to national development.

1.3 FOCUS OF STUDY

This study centers on the concept of the rule of law as it operates within Nigerian democracy under the 1999 Constitution, evaluating whether it is being implemented in line with the expectations of a genuine democratic state.

1.4 SCOPE OF STUDY

Democracy and the rule of law are universally recognized concepts that have been adopted by most countries worldwide. However, for the purposes of this research, the primary focus is restricted to the application of the rule of law in Nigeria’s democratic system under the 1999 Constitution.

1.5 METHODOLOGY

The research draws materials from both primary and secondary sources. Primary sources include the Constitution of the Federal Republic of Nigeria 1999, other relevant statutes, and judicial decisions. Secondary sources comprise textbooks, articles from scholarly journals, internet resources, and other pertinent materials that bolster the study’s credibility. Consequently, the research is primarily library-based (doctrinal) in nature.

1.6 LITERATURE REVIEW

According to Fortune Law, the rule of law denotes the active supremacy of the law over everyone and the equality of all persons before the law, in contrast to favoritism toward individuals and selective enforcement of legal provisions.

In an interview on the rule of law in Nigerian democracy, Ojo Maduekwe emphasized that it serves as a means to safeguard the Nigerian state and sustain the fight against corruption. This perspective positions the rule of law as an instrument available to democratic governments for addressing injustices such as corruption.

Uchenna Emelonye argued that the rule of law rests on the relationship between the state and society, as well as among citizens, underpinned by a shared set of political values and rules. Numerous commentators have highlighted a fair, impartial, and accessible justice system alongside representative government as central components of the rule of law. The term is often understood to encompass independent, efficient, and accessible judicial and legal frameworks, supported by a government that administers fair and equitable laws uniformly, consistently, and coherently to all citizens.

The principle of the rule of law is regarded as particularly vital for transitioning and emerging economies. Lord Ashdown observed: “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 perspective is widely endorsed by various stakeholders. Nevertheless, like human rights and development, the concept of the rule of law lends itself to multiple interpretations and definitions.

The United Nations defines the 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, commenting on the supremacy of law, stated that the rule of law demands that both citizens and governments submit to known and established laws. This supremacy also necessitates generality in legislation a further extension of equality before the law. Laws should not target specific individuals.

As Dicey maintained, the rule of law assumes the absence of broad discretionary powers in rulers, requiring them to govern according to pre-existing laws rather than creating their own. These laws should not be subject to frequent alteration. Stable laws are essential for the certainty and confidence that underpin individual freedom and security. Moreover, laws should be grounded in moral principles, which is difficult to achieve when they are overly detailed.

Stan Rule remarked: “‘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.”

The rule of law inherently guarantees the freedoms and liberties that enable people to pursue their aspirations a core principle of democracy. It is therefore unsurprising that Suleiman Nasiru noted that, in political theory, democracy refers to a limited set of related forms of government as well as a political philosophy. Although no single universally accepted definition of democracy exists, two principles are common to all definitions: first, that all members of society (citizens) have equal access to power; and second, that all citizens enjoy universally recognized freedoms and liberties.

Thus, democracy incorporates the rule of law as one of its essential elements. This aligns with Kayode Ajulo’s assertion that democracy constitutes the complete application of rule of law and human rights in any society.

In his analysis of the British Constitution, Dicey described the rule of law as the predominance of regular laws over arbitrary or discretionary exercise of power, equality before the law, and the idea that the British Constitution emerges from ordinary laws created by the people to govern them supremely.

Wiley Y. Daniel contended that the rule of law serves to justify the legal order and legitimize the legal system of a society, and he examined the mechanisms through which it accomplishes this goal.

Ayo Olanrewaju observed that in developing societies such as Nigeria, the rule of law extends beyond mere compliance with formal laws to become a deliberate instrument for economic and social advancement.

Niki Tobi JSC extensively addressed the concept of legal rights, stating: “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, in the case of The Federal Republic of Nigeria v Ifegwu, the Supreme Court elaborated on the nature of fundamental human rights and the judiciary’s responsibility to safeguard them. This underscores the Nigerian judiciary’s commitment to the rule of law as a vital standard for authentic democracy, given that the protection of fundamental human rights is a defining feature of the rule of law.

1.7 CONCLUSION

The rule of law the central theme of this study has garnered extensive attention from scholars, philosophers, legal practitioners, political scientists, and writers, who have explored it both broadly and deeply. Its growing prominence in contemporary discourse, combined with the widespread adoption of democratic practices across nations, validates its selection as the subject of this work. This chapter has provided essential background information on the study’s focus and has thoroughly examined the perspectives of various authors from diverse fields regarding the concept of the rule of law.