THE are derivable from religious revelation. Thus, natural

THE
RULE OF LAW IN NIGERIA: AN ACTUALITY OR A MYTH?

Nnamdi
Chuks Igbojekwe

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ABSTRACT

There
is no iota of doubt that the rule of law is clearly encapsulated in the
constitution of Nigeria. The amazing thing to any right thinking individual is
the conspicuous lack of regard and nonchalance shown to this sacred arrangement
by the rulers in Nigeria who had promised to maintain it. A few instances of
out of line trials, concealment of free discourse, unjustifiable arrests, undue
control of minorities, executive lawlessness, have been recorded, and it is
against this background this paper endeavors to safeguard the theory that the
rulers in Nigeria, have turned out to be excessive in their cognizant
assignment and diminishment of the idea of the rule of law to a simple myth and
not a reality which it was planned to be.

Keywords:
Rule of Law, Legal Positivism, Executive lawlessness, Democratic Government.

 

i.                  
INTRODUCTION

Law
can be conceived as the unwritten moral principles that underlie the ethical
and legal norms by which human conduct is sometimes evaluated and governed. Law
can also be conceived as that which has been duly enacted by a properly
instituted and popularly recognized branch of government. In
any 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, in
order to be called a law, conform to certain unwritten moral principles?
And
lastly, what is the relationship between laws in the legal sense and scientific
sense? In tackling the above posers, it must be observed that there are two
great 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 position
of the legal naturalists. The reason for this position has a lot to do with the
subjective requirements or reasoning of the natural law, which necessarily
include appeals to the absolute and other religious revelation and wild claims.

The
grounds for rejecting natural laws are obvious: they are incompatible with
legal objectivity. That is, they are not dependent on the actions of particular
legislators, 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-making
act takes place. Moralizing about what the law ought to be is thus a logically
separate activity from discovering or deciding what the law is.

Legal
positivism as a sound legal doctrine has continued to dominate the thinking
about law since the time of William Blackstone in the eighteenth-century. From
the nineteenth-century to date, great thinkers like John Finnis, John Austin,
Nikolai Lenin and H. L. A. Hart have consistently and convincingly presented
legal positivism as the paradigm of what should pass for law.

The
important thing to note about law whether from the perspective of the naturalists
or positivists is that the law and legal structures exist to prevent one person
from enjoying his liberty unchecked at the expense of the other person
(Azikiwe, 1958). This assumption shall form the focus of this discussion.

ii.                
THE
RULE OF LAW

Malemi
(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. For
him, the rule of law means government based on civil laws or laws which are
reasonably justifiable in a democratic society and the exclusion of arbitrary
laws or arbitrary exercise of powers by government. Thus, the rule of law as a
doctrine means the observance and supremacy of civil or civilized law. Onwanibe
(1989) defines the rule of law as that aspect of law which envisages a
political system where life is organized according to laws that guarantee a
good degree of objectivity in dispensing justice, defending freedom, promoting
peace and prosperity because law is a reasonable expression of integrity. If
law is that which has been duly enacted by a properly instituted and popularly
recognized branch of government, then the rule of law means that the citizens
of the state are not exposed to the arbitrary desire of the ruler and the
exercise of governmental powers shall be guided by law.

The
rule 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 the
Constitution in 1939 maintained that the doctrine of rule of law has three
vital aspects which are as follows:

1.     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.

2.     Equality
before the law, or the equal subjection of all classes to the ordinary laws of
the law administered by the ordinary courts.

3.     The
constitution is the result, collation, or synthesis of the ordinary laws of the
land.

From
the above definitions of the rule of law, it can be deciphered that the rule of
law is a common phenomenon which is accepted both in view of positive and
natural laws. Furthermore, the main purpose and application of the rule of law
is to limit and thereby check the arbitrary, oppressive and despotic tendencies
of power and authority. Its aim is to ensure equal treatment and protection for
all 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 and
the collective progress and happiness of any society or country.

iii.             
THE
RULE OF LAW AND THE NIGERIAN ORDEAL

The
doctrine of rule of law is a basic foundation of the Nigerian legal system. The
Nigerian Constitution is the grand foundation and basis of the existence of the
rule of law in Nigeria. Section 1 of the Constitution which declares the
establishment of constitutional democracy in Nigeria, together with the
fundamental rights provisions of the Nigerian constitution, the prohibition of
retrospective legislation and prohibition of the ousting of jurisdiction of
courts and similar provisions in the Nigerian Constitution are indeed a clear
assimilation, restatement and establishment of the rule of law in Nigeria. With
the Nigerian government being a democratic government, it presupposes that in
Nigeria, the law is supreme, all actions done in the Nigerian society are
according to law, the decisions of the courts are respected, and there is
respect for Human Rights. But in practical reality, the
rule of law is pretty much a ridiculous idea Nigeria. Nigeria can’t obey set
down standards, and work inside the standards of a given foundation. For this
situation, submission to court orders is a principal measuring file of consistence
with the rules of law in any general public.

Generally,
public servants in Nigeria, particularly Chief Executives, act and convey
themselves about as though they are over the laws or are not subject to any
authority. These happened all the more frequently in Nigeria amid the military
administrations and lamentably, even still persevere amid non military
personnel administrations. Military administration in itself, is normally an
aberration of the rule of law, due to its by and large rejection of the rule of
law. Civilian administrations in Nigeria have not fared better, with respect to
the rule of law. Truth be told, civilian administrators appear to outperform
the military in their open discourtesy to the rule of law. Obasanjo’s
administration in Nigeria was the most exceedingly bad with regards to
consistence with the rule of law. Obasanjo’s administration was additionally an
encapsulation of executive lawlessness in Nigeria.

The
quarrels between the Lagos State Government and the National Government over
the inability to transmit funds implied for Local Government Councils in Lagos
are a common case of executive lawlessness in Nigeria.

According
to Mbaba (2005), despite the judgment of the Supreme Court on the matter, the
defaulting party, and in this case, Federal Government was still defiant,
looking for reasons to justify its position including going back to court, as
if to seek permission to continue in the disobedience. Other instances of
disobedience of court orders by the Nigerian government can be seen in the
Mohammadu Buhari led administration, where the government disobeyed the order
granting 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 of
the law to propel his motivation, thus, orders laws to quiet everyone from
censuring him, or contradicting his harsh arrangements. Such laws even expel
the 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 Public
Officers (Special Provisions) Act, Cap 381, Laws of the Federation of Nigeria,
1990 which provides inter alia:

“No civil proceeding shall lie or be
instituted in any court for or on account of, or in respect of any act, matter
or thing done or purported to be done by any person under this Act and if any
such proceedings have been or are instituted before, on or after the making of
this Act, the proceedings shall abate, be discharged and made void”.

This
isn’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 our
statute books today, however they are a dismal indication of executive
lawlessness and a bold endeavor to utilize the laws to legitimize their abuse
and concealment of the general population. Most public officers in Nigeria have
neglected to comprehend that the laws, tenets and controls for public servants
are intended to direct them in the release of their public obligations. That
implies, no laws put them over the laws of the land. For example, when Obasanjo
set out on his 93rd outing abroad on June 10, 2002, ThisDay Daily paper gave an
original article which grouped his remote treks not just as ridiculous, but
rather unimportant. What’s more, the paper included that the outing being
referred to, was an unimportant exercise in complete synchrony with his
proclivity for frivolities. At the point when different papers like the broadly
flowed Mid-day News endeavored a work on the mystery behind his outside outings
on July 06, 2002, Obasanjo against all guidance turned to official wilderness –
a take action against journalists. He woefully neglected to understand the
protected method in a common society.

Another
manner by which the rule of law is generally discarded by government in Nigeria
is in the taking of subjective choices and challenging some set down
guidelines. For instance, there had been quarrels between the Official Arm of
the Federal Government and the National Assembly over the usage of the 2005
Appropriation Law. The National Assembly had griped that the Executive were
singularly reviewing the budget without fall back on the National Assembly. The
animosity generated and the negative impact thereof on the economy and country
would have been avoided if the Executive had recollected the law and followed
the system of looking into the budget.

Illegal
arrest, 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 Bayelsa
State), Zarki-Biam (in Benue State), secret trials like that of Henry Okah and
other hostile acts against the citizenry perpetrated by Nigerian leaders have
become a daily occurrence in every state of the Federation (Elijah, 2011). By
displaying these reprehensive attitudes, Nigeria has deliberately decreased the
idea of the rule of law to a simple myth. The fiat and way in which the
advantaged ones approach trampling upon the privileges of others and
indiscreetly mishandling the rule that everyone must follow in each
repercussion, have demonstrated to the doubters that the idea of the rule of
law as revered in the constitution is a delusion. This grieved situation demonstrates
that Nigeria is moving in the wrong course. The idea of the rule of law isn’t
yet a reality in Nigeria.

It
is on record that open lack of regard to court decisions and other
constitutional provisions made the Nigerian Bar Association in March 2006 to
set out on a two-day nation-wide industrial action keeping in mind the end goal
to challenge any consistent executive lawlessness championed by President
Obasanjo (Onyekwere, 2006). It is likewise on record that protected legal
practitioners and human rights activists from different parts of the nation
organized a protest in Abuja against the proceeded detainment of the previous
National Security Adviser, Sambo Dasuki (rtd) and others in spite of the order
of court granting them bail (PRNigeria, 2016). Indeed, even President Yar’Adua on his
part did not indicate enough regard to the rule of law. Extra-judicial killings
in some Niger Delta communities in May and June 2009 have demonstrated that
Yar’Adua likewise neglected to make the rule of law a reality in Nigeria. It is
the position of this paper, that aside from something earth shattering is done
to redress the officially frail mood of our legal and political circumstance,
Nigeria may not effortlessly get out of the woods. As such, our recusant
individuals from the Executive Arm of Government must start to conduct
themselves with decorum in order to demonstrate their regard to the rule of
law.

Additionally,
all draconian and anti-people laws must be repealed. This implies, Nigerian
legislators should see any demonstration of lack of regard to the rule of law
by the executives as an impeachable offense. In a similar token, solid
punishments like expulsion from administration ought to be allotted to the
refractory individuals from the military and the police force.

iv.             
CONCLUSION

We
have precisely talked about the glaring abuse of the rule of law and, by
augmentation, the legal procedure by Nigerian leaders. We have similarly seen
this as a serious issue since the rule of law is fundamental for the aggregate
advance and satisfaction of any nation.

Accordingly,
this paper is a reminder for everyone to rise up to the challenge of
reestablishing pride to the Nigerian country by opposing any endeavor to abuse
the rule of law. To close this work, I will concur with Omoregbe (2007) that it
is just when the rule of law turns into a reality, that individual natives
would appreciate individual freedom and equivalent treatment by the law, in a
climate of fraternity. Be that as it may, for the time being, the rule of law
still remains a fiction in the Nigerian atmosphere.

 

 

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