R. Aduche Wokocha, 1st Semester Constitutional Law Note 4, February, 2024. THE RULE OF LAW MEANING OF THE RULE OF LAW Legal concepts and definitions almost always, pose the problem of the blind men of and the elephant. Most often, numerous authors, almost always agreeing on some basic 'ssues and differing on several others, have defined legal concepts severally. The Rule of law is no exception to this general trend. However, through the times, the concept of Rule of law has enjoyed some degree of definition which taken together translate to the desire of man in society to subject all members and institutions including his | government, to the law of the land and the avoidance of undue discretion and unjustified or arbitrary practices and conducts among public officers to the end of Protecting and preserving the liberty of man and the,natural dignity of humanity. The earlier interpretations of the concept were derived from the theories formulated by legal philosophers, each formulation stressing the subordination of the ruler to rules of law either enacted or accepted and upheld by the community and its law. [nas early as_ BC 350, the famous Greek_philosopher Aristotle, (BC 384-322 in Politics 111.16 Translated by Jowett ed. Davis. Available online at [Link] invented the term when he asserted Ahat_~ “the rule is preferable to the rule of man”. This first use of the t rule of law” generated great interest among scholars, but each new couching of the expression only became a starting point for subsequent explorers. Bracton the English philosopher in the 13" century maintained that either human or divine law governs man. That “even though the king might not be subject to man, he is subject to God and the law because it is the law that made him king.” It is therefore little surprise that following the revolt of the English Barons challenging the assumed divine right of English kings over the English people, the Magna Carta was reluctantly signed into law in 1215 by King John. Generally regarded as the first enactment and origin of the modern or present day concept of Rule of law, the charter provides in clause 30 that: » “No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished or in any way destroyed, nor will we go upon him, or send upon him, except by the legal Judgment of his peers or by the law of the land” Writing in the 17th century, John Locke in his book Two Treatise on Civil Government “accessible online at [Link] ascribed to the 1°FOld of law, the meaning that all governmental powers must be distributed and their exercise determined by “reasonably prescribed laws” as opposed to the Whims and Caprices of anybody or authority. He reasoned further that freedom of men under 1R. Aduche Wokocha, 1st Semester Constitutional Law Note 4, February, 2024. government is to have a standing rule to live by, rules common to everyone of that Society, and made by the legislative power created in it, and not to be subject to the inconstant, unknown, and arbitrary will of another man. The modern concept of the Rule of law was given comprehensive attention in 1885 when professor A.V. Dicey of Oxford University, now regarded as the father of the concept, wrote in his seminal work An Introduction To The Law of the Constitution, ~ Macmillan, London (1985). that the rule of law generally includes under one expression, three distinct though kindred conceptions, namely; 1. The supremacy of the law and the exclusion of all forms of arbitrary and discretional ~ exercise of authority. 2. The equality of all men before the law, and equal amenability of all to the law and courts of the land. 3. The inherence of the fundamental rights of man which are often enshrined in modern constitutions, as natural rights and not grants by such constitutions which together with court decisions and other legislations across time, only affirm their inherence. In his words; It means, in the first place, 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 law, but he can be punished for nothing It means, again, equality before the law, or the equal subjection of ali classes to the ordinary law of the land administered by the ordinary Law Courts; the "rule of law" in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals; there can be with us nothing really corresponding to the “administrative law" (droit administratif) or the “administrative tribunals” (tribunaux administratifs) of France. The notion which lies The “rule of law," lastly, 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 a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the Courts; that, in short, the principles of private law have with us been by the action of the Courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land. In effect, the rule of law signals the supremacy of the law, before which all persons are equal and subjects and before which the rights of man are inherent by virtue of his 2R. Aduche Wokocha, 1st Semester Constitutional Law Note 4, February, 2024. humanness, sacrosanct and unabridgeable except in accordance with the dictates of the regular law. Dicey’s three conceptions of the rule of law have come under severe criticism from subsequent writers such as Sir Ivor Jennings, R.F.V. Heuston and K.C. Davis who clearly showed that Dicey’s concepts are ideals which were not completely obtainable even at his age as they are today. That equality of all and equal amenability of all to the laws and courts must admit of the numerous exceptions that abound now even as they did in Dicey’s time. Finally, that while arbitrary exercise of power is neither validly supported nor supportable, elimination of all forms of discretional exercise of authority is neither Possible nor desirable. It can be said that in a way, these criticisms are incisive expositions which to our mind has sharpened and more clearly defined the boundaries of Rule of Law. In his own view, Sir Wor Jennings a leading Dicey Critic in his book The Law and the Constitution, (5" Edition), P.55. (1 959), has pointed out that a wide range of discretionary powers exist today as they existed in Dicey’s England. K.C. Davies in Administrative Law Text, P.42 (1971), put the criticism more succinctly when he observed: “Elimination of all discretionary power is both impossible and undesirable, The sensible goal is development of a proper balance between rule and discretion. Some circumstances call for rules some for discretion. Some mixture of one proportion and some for mixture of another proportion”. One cannot help admitting that the above criticisms of Dicey are apposite since it is common knowledge that modern government as is well known, cannot be carried on at all without a host of wide discretionary powers which are granted to its functionaries by the large number of statutes annually passed by the various legislature around the world. The rule of law must thy ity_with the laid down process in the conduct of the affairs of man in society, and exclusion or condemnation verything arbitrary and unprocedural-in-the affairs of man in society. This has been autifully encapsulated by R.F.V. Heuston in his book The Rule of Law” Essays in Constitutional Law (2" Edition), P.41 (1964), to entail that: “Everyone, high or low must be prepared to justify his acts by a reference to some statutory or common law power which authorised him to act precisely in the way in which he claims he can act. Superior orders or state necessity are no defence to an action otherwise illegal”. This conclusion has long received judicial amplitude through a pletora of cases spreadR. Aduche Wokocha, 1st Semester Constitutional Law Note 4, February, 2024. across, times, lands and climes (See Prohibition Del Roy (1607) 12 Co. Rep. 66, and Entick v. Carringhton (1765) 19 St. Tr. 1030.) In Re; Mohammed Olayori [Reported in Ihuyumade & Eka ‘Cases and Materials in Administrative Law in Nigeria - Ibadan. Oxford 198 pp.202-208], Chief Justice Taylor of Lagos State, Nigeria, remonstrating on the arbitrary power conferred on the police and the Armed Forces by S.3(1) of the Armed Forces and Police (Special Powers) Decree of 1967 which provided for the detention of persons connected with acts prejudicial to public orders, sai “1 am, as | know is every member of the Bench and every right thinking and honest member of our society, against prevailing conditions of corruption and embezzlement of public funds existing in the country (Nigeria) today, but if we are to live by the rule of law; if we are to have our actions guided and restrained in certain ways for the benefit of the society in general, individual members in particular, then whatever status whatever post we hold, we must succumb to the rule of law. The alternative is anarchy and chaos, and the whole purpose of defence regulations and emergency regulations is to prevent these state of things”. The case of Mosiru Bello and Ors V. A-G, Oyo State (1986) 5 NWLR 828, throws more light on the rule of law as seen by the courts. In the case, the Prisoner charged with armed robbery was sentenced to death. Before his appeal was heard by an appellate court, he was executed by the Oyo State prisons. His dependants brought an action for the wrongful death of the prisoner. His execution before the hearing of the appeal was a negation of the Rule of Law; and the court granted damages for the willful death of the prison See also the dictum oi Oputa JSC in‘Governor of. 10s State v. Ojukwu. (supra) By and large, Dicey's ideas are still relevant and find support in even more recent developments of the rule of law as a universal principle. In modern times, the concept has been so broadened that it will not be untrue to say that today, the rule of law preserves and protects everything good and positive to the well being and welfare of man in society, everything connected with due process in the conduct of the affairs of men in society and exclusion or condemnation of everything arbitrary and contrary to the due process in the affairs of men in society. Dicey lucidly captures this fact which has since become enshrined in several international legislative instruments as well as virtually every municipal constitution when in in p. 194 of his epic writing, he concluded that it translates to the fact that Every official, from the Prime. Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the 4R. Aduche Wokocha, 1st Semester Constitutional Law Note 4, February, 2024. payment of damages, for acts done in their official character but in excess of their lawful authority. [Appointed government officials and politicians, alike] ... and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person. Today, the rule of law is at the very foundation of every modern State. The touch-stone upon which the goodness and justness of every political ideology is measured, the defender of civil liberty and social justice, the attainment and substance of which is the most singular objective of all states and the responsibility of which is distributed across all organs of government of the modern State. GLOBALISATION OF THE RULE OF LAW The rule of law is a major cornerstone and at the very foundation of modern international relations of States. It received international approval through the laws of New Delhi and Lagos in 1959 and 1961 respectively, and has since expanded in scope through a variety of other bilateral, multilateral treaties and international covenants. The huge cost of the first and especially the second world wars in terms of human and material loss, broadened the awareness of men and realization of the need to protect man from the ravages of extreme authority or power and it's abuse. The Jewish experience in the days of the holocaust under Adolph Hitler's Nazi Germany Where over million Jews were exterminated in Hitler's bid to erase the Jewish race, acutely heightened global desire for'men to be ruied by the law in all nations. This need in turn generated collective interest in the pursuit of peace among nations through the Rule of law. It became obvious that the cost of its abuse is anarchy, utter chaos and anarchy as demonstrated by man’s experience through the years is not the burden of the singular nation or group immediately affected, but a burden which other nations and groups are also saddled with. It therefore did not come as a surprise that Article 1 of the United Nations charter stated as a UN principle, the promotion of respect for and observance of human rights and fundamental freedoms without discrimination based on race, sex, language or religion. In 1948, the committee of nations (UN) further strengthened its commitment to the Rule of law through the universal Declaration of Human Rights (hereafter called UDHR). The UDHR is a code of universally accepted standard of treatment and protection of the rights of man. Designed to guide member nations in practice and described at the time to be largely ‘merely portatory and of moral value,’ it's provisions have later been incorporated into domestic national legislations and regional instruments to an extent that some jurists have reasoned and correctly too, has made it part of the customary[Link] Wokocha, 1st Semester Constitutional Law Note 4, February, 2024. law of nations. The concept of Rule of Law has received even wider exposition in the conventions of the International Committee of Jurists (ICJ) held in New Delhi and Lagos in 1959 and 1961 respectively. Often referred to as the laws of New Delhi and Lagos, their provision encompasses the right to representative Government the willing subjection of the executive, especially over delegated legislation, to independent judicial control, an independent judiciary and in criminal processes and procedure, fair trial, bail, legal aid and the presumption of innocence. While the above instruments guarantee or preserve the rule of law in time of peace, the Safety and respect for human dignity and rights are addressed in time of conflicts through other international covenants and instruments. These include the Genocide Convention of 1948 which punishes for the crime of genocide, and the Geneva Red Cross Convention of 1949 which protects combatants, who are wounded; prisoners of war ~ soldiers or civilians; and prohibit inter alia, willful killing, torture and Inhuman treatment; willful causing of grievous bodily harm, unlawful deportation, taking of hostages and the wanton destruction of property. The present scope covered by the rule of law is thus widely broadened. In a concise form, the Rule of law now encompasses the entire idea of social justice, legal justice as tampered by natural justice and equity especially in criminal procedure where its application has also been greatly enhanced. Thus the rights now protected by the Rule of law, can be classified into political rights, social rights, economic rights in addition to human rights which also form part of its objects. This paper is for the present purposes, concerned with the political rights of man as recognized and protected by the Rule of law, and shall now discuss in detail, the attitude of the Rule of Law to this variety of rights. BASIS AND OBJECTIVES OF THE RULE OF LAW A society of men free and at liberty to do whatsoever they please, is a society of madness, a Kingdom of rage and violence where only the strong and mighty will survive. Such a society will be a community in anarchy where everyone is doomed to die at the will of his stronger. It goes without saying that life in such a society will be brutish short and not worth living as insecurity will reign Suzerain and men die from fear of violence, many times before their death. It would amount to a return to the old order where might is right and life based on survival of the fittest, no justice, no right, only power, raw naked power. Therefore, the rule of law was evolved on the basis that man in society must be organised that the high and the low may find a place, right and room to live, in a world 6R. Aduche Wokocha, 1st Semester Constitutional Law Note 4, February, 2024, characterised by diversity of people, stature, shape, strength and desires. Men must be Subject not to the whims, caprices and arbitrary will of their stronger, but of a non Vacillatory and non discriminatory superior who has no bias nor respect for strength or weakness but treats all members of society equally, protecting the innocent and Punishing the guilty or transgressor equally and commensurately. This is on the backdrop of the fact that, man Preceded society which in turn created the State therefore both society and the State exist to better the lot of man as an instrument to Protect and minister unto him in his pursuit of happiness and self realisation. To create these two instruments, man surrendered his administrative and other powers which were gathered into a pool of authority called the State. In the words of Lord Camdem C.J. in Entick v. Carrington (19 St. Tr. 1030 (1765): “The great end, for which men entered into society was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public Jaw for the good of the whole... wherein every man by common consent gives up that right, for the sake of Justice and the general good’. The rule of law thus arose on the basis that, such general surrender of general rights needs to be protected by an independent authority not primarily a donor nor beneficiary of such pool of rights forming so great an authority. The objective of the rule of:iaw is accordingly primarily to administer the rights and burdens collected as above, among the donor members of the society, each man according to his due, worth or need. By this, we in tule of law is to secure and administer justice in society. We may further identify as included in the objectives of rule of law, the following: - prevention of arbitrary use of public power, enforcement of equal observation of the law of society by all members without undue exception but admissive of discriminatory application and administration of such laws where the parties are unequal and the ends of justice demand so to do, Protection and preservation of the inherent rights of man in society recognised as being residual in them or conferred by the ordinary laws of society, from abridgement or alienation. We must warn here that even the above is not exhaustive as the ever growing development of society, unfolding with the unending rise and fall of the sun, brings with it, an ever growing duty and objective for the tule of law. 7R. Aduche Wokocha, 1st Semester Constitutional Law Note 4, February, 2024. BASIC PRINCIPLES OF THE RULE OF LAW IN MODERN STATES The check on Democratic government by the Rule of Law, is intricately woven into Principles set out for the obedierice and observance of the operators of-the three arms of government — the Legislature, the Executive and the Judiciary. These principles it must be observed set the terms of the Rule of Law for sustainable democratic governance, and most of them have now been woven into municipal laws of various nations, (Nigeria inclusive). These principles will now be discussed hereunder under the various headings of governmental powers THE LEGISLATURE Law is understood to be an embodiment of all the tules, regulations and authoritative injunctions that guide and regulate conduct in an ordered society. Although the expression law may relate to other means of control such as nature, science, religion or morality, our use of the expression is limited to civil law the imperative character of which is a constant of modern administration. The lot of law making in government falls on the legislature, the arm of government which is charged by “the people” of all nations through their constitution, with the responsibility of making law for the peace, order and good governance of the nation.? $ The rule of law demands of the legislature, social responsibility, clarity, stability an vigilance in the performance of its legislative duty. 1 SOCIAL RESPONSIBILITY . Under the rule of law, the legislator is expected to concern itself with the social function of law, which focuses on the role of law in society. This bothers on creation of rules and laws for the protection of the citizenry, promotion of their welfare and equitable disbursement of the benefits and burdens of society to them in the spirit of equality. The proposition of the social theory of law has been summarised as follows: - a) That law is a means of social control. b) That the living law of society has to be sought outside the confines of formal legal material, in other words in society itself. The task of formal law makers is to keep it as nearly abreast of the living law as possible. That the function of law should be the promotion of the greatest happiness of the greatest number. The justification for having laws in the first place, being that they are important means of ensuring the happiness of the members of the community generally. In which case the sovereign power of making laws should c)R. Aduche Wokocha, 1st Semester Constitutional Law Note 4, February, 2024. be used not to guarantee or protect the selfish desires of individuals, but to secure and entrench the public good. There has to be a proper balancing of individual interests with communal interests of welfare. d) That the making, interpretation and application of laws take account of social factors. e) That the task of the lawyers is very much like engineering and the aim of social engineering is to build an efficient structure of society such that there is satisfaction of wants with the minimum of friction and proper balancing of competing interests. The rule of law enjoins the legislature to make laws from the view point of the social function of law. In the performance of their duty as public officers they should seek to fulfil the social objectives of legislation. They should not be pre-occupied with the desire to entrench party interest, personal interest or anti-people agenda as that will amount to an improper use of their public powers and amount to a negation of the rule of law. They must also guard against recklessness as otherwise, a crookedly made law can only produce a crooked justice when interpreted and executed. The sad experience of the Ogoni people of Rivers State is still fresh on [Link] which accordingly cannot be over emphasised it would be recalled that Ken Saro-Wiwa and 8 Ogoni Compatriot: were wildly accused, unfairly tried and convicted in a Tribunal unfairl stituted and hurriedly executed in a manner the UN has described as “Judi Murder” on 10” November, 1995. When the above is borne in mind, the legislature in a Democratic government, wishing to sustain the rule of law, must ensure that law is clear, stable and orders properly guided. 2 CLARITY Since one of the cardinal functions of law is to regulate and guide the conduct of men in society, it is only just and proper that the laws be prospective open and clear. Under democratic governance, the law must be expressed in concise and comprehensible_ lanquage, adequately published and made to take effect from the date of its enactment or later but not in retrospect as was common place in the irresponsible misrule that was called Military Government in the recent history of Nigeria. Law should not be made to incriminate for a conduct that at the time of action amounted to no offence, this would offend both the constitution (See Section 33 (8)) and the African Charter on Human and People’s Right of 1981. For similar reasons, its meaning must be clear. An ambiguous vague or imprecise law is likely to confuse at least those who desire to be guided by the law. As has been observed by Lord Diplock in Mercur [sland Shipping Corp. v. Laughton and 9R. Aduche Wokocha, 1st Semester Constitutional Law Note 4, February, 2024. Others, 2 AC, 570 HL at 612, (1983), “Absence of clarity is destructive of the rule of law; it is unfair to those who wish to preserve the rule of Jaw; it encourages those who wish to undermine it” In preparedness for failure to ensure clarity, the rule of law has secured the liberty of a threatened citizen by evolving the principle of interpretation whereby unclear provisions of law will be interpreted in that particular way that would best preserve the ordinary rights of the individual. See the following cases: Barkleys Bank of Nig. Ltd., vs. CBN Ltd., SC175, (1976). Shodeinde v. Registered Trustees etc, 1-2 SC 225, (1980). 3. STABILITY If the law must guide the citizen in the conduct of his transactions with others, then the law must be relatively stable. under democratic governance should not be changed too often, If they are frequently changed, people will find it difficult to find out what the law is at any given moment and will therefore, be in constant fear that the law has changed since they last learned what it is. More important still is that people need to know the law not only for their short term goals (like where to park one’s car, where to turn on flyovers, etc.) but also for long term planning. Knowledge of at least the general outlines-and sometimes even details of tax law and company law are often important for business plans designed to yield profit only years later. The legislator must therefore endeavour to keep the law stable as otherwise the citizenry will be in danger of criminal conviction for new laws he may be unaware of. This is especially 50” when we consider that ignorance of the law is not a defence to an offence be it civil or criminal. 4. CONTROL OF LEGAL ORDERS As earlier observed, a great deal of discretion is required in the running of a modern State.*” Since their employment is a necessity, the laws empowering those who must exercise such discretion must be made with clarity and protected with adequate general tules for the proper exercise of such discretion to ensure that their exercise conforms ally with the standards of the rule of law. Discretions are exercised where a public gener: publish a legal order, make officer is empowered under a law, to make appointments, tules for the smooth operation of acts of the legislature. Two kinds of general rules usually create the frame work for the enactment of particular laws. These are: