THERULE OF LAW IN NIGERIA: AN ACTUALITY OR A MYTH?NnamdiChuks Igbojekwe14Mann Street, Owerri, Imo State, NigeriaMobile:+2347065503842Email: [email protected]
comABSTRACTThereis no iota of doubt that the rule of law is clearly encapsulated in theconstitution of Nigeria. The amazing thing to any right thinking individual isthe conspicuous lack of regard and nonchalance shown to this sacred arrangementby the rulers in Nigeria who had promised to maintain it. A few instances ofout of line trials, concealment of free discourse, unjustifiable arrests, unduecontrol of minorities, executive lawlessness, have been recorded, and it isagainst this background this paper endeavors to safeguard the theory that therulers in Nigeria, have turned out to be excessive in their cognizantassignment and diminishment of the idea of the rule of law to a simple myth andnot a reality which it was planned to be.Keywords:Rule of Law, Legal Positivism, Executive lawlessness, Democratic Government. i.
INTRODUCTIONLawcan be conceived as the unwritten moral principles that underlie the ethicaland legal norms by which human conduct is sometimes evaluated and governed. Lawcan also be conceived as that which has been duly enacted by a properlyinstituted and popularly recognized branch of government. Inany case, rationally, can we accept any rule enacted by any state as a law? Or,is positive law the only caliber of law which is in existence? Must a rule, inorder to be called a law, conform to certain unwritten moral principles?Andlastly, what is the relationship between laws in the legal sense and scientificsense? In tackling the above posers, it must be observed that there are twogreat divides: the legal naturalists, on one hand, and the legal positivists,on the other hand. In this paper, we shall not be concerned with the positionof the legal naturalists. The reason for this position has a lot to do with thesubjective requirements or reasoning of the natural law, which necessarilyinclude appeals to the absolute and other religious revelation and wild claims.
Thegrounds for rejecting natural laws are obvious: they are incompatible withlegal objectivity. That is, they are not dependent on the actions of particularlegislators, and, in most cases, are derivable from religious revelation. Thus,natural laws cannot be regarded as proper laws. According to legal positivism,only positive laws which basically form the rule of law exist. Laws are, therefore,made by legislators; they do not exist, awaiting discovery, before a law-makingact takes place. Moralizing about what the law ought to be is thus a logicallyseparate activity from discovering or deciding what the law is.Legalpositivism as a sound legal doctrine has continued to dominate the thinkingabout law since the time of William Blackstone in the eighteenth-century.
Fromthe nineteenth-century to date, great thinkers like John Finnis, John Austin,Nikolai Lenin and H. L. A. Hart have consistently and convincingly presentedlegal positivism as the paradigm of what should pass for law.Theimportant thing to note about law whether from the perspective of the naturalistsor positivists is that the law and legal structures exist to prevent one personfrom enjoying his liberty unchecked at the expense of the other person(Azikiwe, 1958). This assumption shall form the focus of this discussion.ii.
THERULE OF LAWMalemi(2012) defines the rule of law as the observance and supremacy of civil laws,that is, laws which are reasonably justifiable in a democratic society. Forhim, the rule of law means government based on civil laws or laws which arereasonably justifiable in a democratic society and the exclusion of arbitrarylaws or arbitrary exercise of powers by government. Thus, the rule of law as adoctrine means the observance and supremacy of civil or civilized law.
Onwanibe(1989) defines the rule of law as that aspect of law which envisages apolitical system where life is organized according to laws that guarantee agood degree of objectivity in dispensing justice, defending freedom, promotingpeace and prosperity because law is a reasonable expression of integrity. Iflaw is that which has been duly enacted by a properly instituted and popularlyrecognized branch of government, then the rule of law means that the citizensof the state are not exposed to the arbitrary desire of the ruler and theexercise of governmental powers shall be guided by law.Therule of law was formulated by Prof. Albert Venn Dicey of Oxford University,England. A.V.
Dicey in his book, Introduction to The Study of Law of theConstitution in 1939 maintained that the doctrine of rule of law has threevital aspects which are as follows:1. Theabsolute supremacy or predominance of regular law as opposed to the influenceof arbitrary power, and excludes the existence of arbitrariness, of prerogativeor even of wide discretionary authority on the part of the government.2. Equalitybefore the law, or the equal subjection of all classes to the ordinary laws ofthe law administered by the ordinary courts.3. Theconstitution is the result, collation, or synthesis of the ordinary laws of theland.
Fromthe above definitions of the rule of law, it can be deciphered that the rule oflaw is a common phenomenon which is accepted both in view of positive andnatural laws. Furthermore, the main purpose and application of the rule of lawis to limit and thereby check the arbitrary, oppressive and despotic tendenciesof power and authority. Its aim is to ensure equal treatment and protection forall persons under the law, irrespective of a person’s race, tribe, sex, class,status, place of origin, political views, and so forth. It can safely be said,that the rule of law is indispensable for the protection of human rights andthe collective progress and happiness of any society or country.iii.
THERULE OF LAW AND THE NIGERIAN ORDEALThedoctrine of rule of law is a basic foundation of the Nigerian legal system. TheNigerian Constitution is the grand foundation and basis of the existence of therule of law in Nigeria. Section 1 of the Constitution which declares theestablishment of constitutional democracy in Nigeria, together with thefundamental rights provisions of the Nigerian constitution, the prohibition ofretrospective legislation and prohibition of the ousting of jurisdiction ofcourts and similar provisions in the Nigerian Constitution are indeed a clearassimilation, restatement and establishment of the rule of law in Nigeria.
Withthe Nigerian government being a democratic government, it presupposes that inNigeria, the law is supreme, all actions done in the Nigerian society areaccording to law, the decisions of the courts are respected, and there isrespect for Human Rights. But in practical reality, therule of law is pretty much a ridiculous idea Nigeria. Nigeria can’t obey setdown standards, and work inside the standards of a given foundation. For thissituation, submission to court orders is a principal measuring file of consistencewith the rules of law in any general public.
Generally,public servants in Nigeria, particularly Chief Executives, act and conveythemselves about as though they are over the laws or are not subject to anyauthority. These happened all the more frequently in Nigeria amid the militaryadministrations and lamentably, even still persevere amid non militarypersonnel administrations. Military administration in itself, is normally anaberration of the rule of law, due to its by and large rejection of the rule oflaw. Civilian administrations in Nigeria have not fared better, with respect tothe rule of law. Truth be told, civilian administrators appear to outperformthe military in their open discourtesy to the rule of law. Obasanjo’sadministration in Nigeria was the most exceedingly bad with regards toconsistence with the rule of law. Obasanjo’s administration was additionally anencapsulation of executive lawlessness in Nigeria. Thequarrels between the Lagos State Government and the National Government overthe inability to transmit funds implied for Local Government Councils in Lagosare a common case of executive lawlessness in Nigeria.
Accordingto Mbaba (2005), despite the judgment of the Supreme Court on the matter, thedefaulting party, and in this case, Federal Government was still defiant,looking for reasons to justify its position including going back to court, asif to seek permission to continue in the disobedience. Other instances ofdisobedience of court orders by the Nigerian government can be seen in theMohammadu Buhari led administration, where the government disobeyed the ordergranting bail to the former National Security Adviser to the Jonathan administration,Colonel Sambo Dasuki, (rtd), and the IPOB leader, Nnamdi Kanu (Chijioke, 2017). In a plethora of cases,a Nigerian ruler in audacious show of tyranny tries to utilize the vehicle ofthe law to propel his motivation, thus, orders laws to quiet everyone fromcensuring him, or contradicting his harsh arrangements. Such laws even expelthe purview of courts, so no one, not even the court can scrutinize the ruler.
Instances are many in Nigeria. Check for instance section 3 (3) of the PublicOfficers (Special Provisions) Act, Cap 381, Laws of the Federation of Nigeria,1990 which provides inter alia:”No civil proceeding shall lie or beinstituted in any court for or on account of, or in respect of any act, matteror thing done or purported to be done by any person under this Act and if anysuch proceedings have been or are instituted before, on or after the making ofthis Act, the proceedings shall abate, be discharged and made void”.Thisisn’t right since no one is exempt from the laws that apply to everyone else.Despite the fact that such provisions as appeared above still stay in ourstatute books today, however they are a dismal indication of executivelawlessness and a bold endeavor to utilize the laws to legitimize their abuseand concealment of the general population.
Most public officers in Nigeria haveneglected to comprehend that the laws, tenets and controls for public servantsare intended to direct them in the release of their public obligations. Thatimplies, no laws put them over the laws of the land. For example, when Obasanjoset out on his 93rd outing abroad on June 10, 2002, ThisDay Daily paper gave anoriginal article which grouped his remote treks not just as ridiculous, butrather unimportant. What’s more, the paper included that the outing beingreferred to, was an unimportant exercise in complete synchrony with hisproclivity for frivolities. At the point when different papers like the broadlyflowed Mid-day News endeavored a work on the mystery behind his outside outingson July 06, 2002, Obasanjo against all guidance turned to official wilderness -a take action against journalists. He woefully neglected to understand theprotected method in a common society. Anothermanner by which the rule of law is generally discarded by government in Nigeriais in the taking of subjective choices and challenging some set downguidelines. For instance, there had been quarrels between the Official Arm ofthe Federal Government and the National Assembly over the usage of the 2005Appropriation Law.
The National Assembly had griped that the Executive weresingularly reviewing the budget without fall back on the National Assembly. Theanimosity generated and the negative impact thereof on the economy and countrywould have been avoided if the Executive had recollected the law and followedthe system of looking into the budget.Illegalarrest, detentions, trials, banning of trade unions and popular organizations,harassment of civil rights campaigners; illegal proscriptions of media houses,extra-judicial killings as in Gbaramatu (in Delta State), Odi (in BayelsaState), Zarki-Biam (in Benue State), secret trials like that of Henry Okah andother hostile acts against the citizenry perpetrated by Nigerian leaders havebecome a daily occurrence in every state of the Federation (Elijah, 2011). Bydisplaying these reprehensive attitudes, Nigeria has deliberately decreased theidea of the rule of law to a simple myth.
The fiat and way in which theadvantaged ones approach trampling upon the privileges of others andindiscreetly mishandling the rule that everyone must follow in eachrepercussion, have demonstrated to the doubters that the idea of the rule oflaw as revered in the constitution is a delusion. This grieved situation demonstratesthat Nigeria is moving in the wrong course. The idea of the rule of law isn’tyet a reality in Nigeria. Itis on record that open lack of regard to court decisions and otherconstitutional provisions made the Nigerian Bar Association in March 2006 toset out on a two-day nation-wide industrial action keeping in mind the end goalto challenge any consistent executive lawlessness championed by PresidentObasanjo (Onyekwere, 2006).
It is likewise on record that protected legalpractitioners and human rights activists from different parts of the nationorganized a protest in Abuja against the proceeded detainment of the previousNational Security Adviser, Sambo Dasuki (rtd) and others in spite of the orderof court granting them bail (PRNigeria, 2016). Indeed, even President Yar’Adua on hispart did not indicate enough regard to the rule of law. Extra-judicial killingsin some Niger Delta communities in May and June 2009 have demonstrated thatYar’Adua likewise neglected to make the rule of law a reality in Nigeria. It isthe position of this paper, that aside from something earth shattering is doneto redress the officially frail mood of our legal and political circumstance,Nigeria may not effortlessly get out of the woods.
As such, our recusantindividuals from the Executive Arm of Government must start to conductthemselves with decorum in order to demonstrate their regard to the rule oflaw. Additionally,all draconian and anti-people laws must be repealed. This implies, Nigerianlegislators should see any demonstration of lack of regard to the rule of lawby the executives as an impeachable offense. In a similar token, solidpunishments like expulsion from administration ought to be allotted to therefractory individuals from the military and the police force.iv. CONCLUSIONWehave precisely talked about the glaring abuse of the rule of law and, byaugmentation, the legal procedure by Nigerian leaders. We have similarly seenthis as a serious issue since the rule of law is fundamental for the aggregateadvance and satisfaction of any nation. Accordingly,this paper is a reminder for everyone to rise up to the challenge ofreestablishing pride to the Nigerian country by opposing any endeavor to abusethe rule of law.
To close this work, I will concur with Omoregbe (2007) that itis just when the rule of law turns into a reality, that individual nativeswould appreciate individual freedom and equivalent treatment by the law, in aclimate of fraternity. Be that as it may, for the time being, the rule of lawstill remains a fiction in the Nigerian atmosphere. Bibliography (n.d.
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