Introduction
We commenced this series last week with a definition of the focal terms – Meaning of Law, Evolution of law and government, impunity, and then democratic setting. Today, we shall continue and conclude democratic setting and then x-ray rule of law. Read on.
Democratic Setting (continues)
However, Plato, in his second and third books, the Statesman and the Laws, respectively modified his definition when he defined democracy as the government of the people in which law is supreme, ruler and subjects alike being subject to it.
According to Charlie Nwekeaku, democracy is the government put in place by the people, which upholds the spirit of social contract between the State and the people, ensures equitable distribution of the State resources and equal opportunity for all its citizens and whose operations are based on the rule of law. Black’s Law Dictionary, Sixth Edition defines ‘Democracy’ as a form of government in which the sovereign power resides in and is exercised by the whole body of free citizens directly or indirectly through a system of representation, as distinguished from a monarchy, aristocracy, or oligarchy.
The term has been further defined as follows:
“Democracy could also be described as apolitical method, that is to say, a certain type of institutional arrangement for arriving at political, legislative and administrative decision. It is therefore, a method by which the individual acquires the power to participate in decision by means of a competitive struggle for the people’s vote … it is competition for votes – that is the distinguishing character of the democracy method…” In the words of a learned author, Democracy ensures meaningful and extensive competition among individuals and organized groups (especially polities, either directly or indirectly, for the major positions of governmental power, a highly inclusive” level of political participation in the selection of leaders and policies, least through regular and fair elections, such as that no major (adult) social group is excluded, and level of civil and political liberties-freedom of expression, freedom of the press, freedom to form and join organization sufficient to ensure the integrity of political competition and participation … “(ibid).
Thus, democracy is a system of government where the people, in exchange for equitable distribution of resources, protection of life and property, endow or bestow upon an individual their collective will, and that individual having the collective assent or will of the people proceed to protect the interest of the generality of the people in a representative manner or capacity. Flowing from the above, the term “Democratic Setting” simply means a society or country where democracy as a form of government is adopted and its tenets observed. .
It is a truism that impunity and abuse of power thrive where power is given but not curtailed or checked under the law. These were the drivers of the proponents of the principles of rule of law, separation of powers, and checks and balances. These principles are given attention herein below in view of their relevance to our topic of discussion
Rule of Law
Black’s Law Dictionary, Sixth Edition defines rule of law as:
“A legal principle of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition called a “rule” because in doubtful or unforeseen cases it is guide or norm for their decision. The rule of law, sometimes called the supremacy of law provides that decision should be made by the application of known principles of laws without the intervention of discretion in their application.”
The principle of Rule of Law is to the effect that absolute predominance or supremacy of ordinary law of the land over all citizens, no matter how powerful. The principle was first propounded by Aristole, but was greatly expounded by the UK law Professor, A. V. Dicey. The theory of Rule of law is based on three principles that: (1) legal duties, and liability to punishment, of all citizens, is determined by the ordinary (regular) law and not by any arbitrary official fiat, government decree, or wide discretionary-powers, (2) disputes between citizens and government officials are to be determined by the ordinary courts applying ordinary law, and the (3) fundamental rights of the citizens (freedom of the person, freedom of association, freedom of speech) are rooted in the natural law, and are not dependent on any abstract constitutional concept, declaration, or guaranty.
The Secretary General of the United Nations [2013] defines the rule of law as a principle of governance in which all persons, institutions and entities 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 the decision making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.
Similarly, the 1959 International Commission of Jurists Delhi Declaration states that the rule of law implies certain rights and freedom, independent judiciary, social, economic and cultural conditions conducive to human dignity (ibid). The rule of law presupposes the supremacy of law in the state. This means that law, and nothing else, counts in the society, as everything, everybody is subject to the same law. Both the ruler and the ruled, or the ruler and the subjects, are not only subject to the rule of law, but are also equal before the law. The rule of law promotes and protects the liberty, freedom and the gamut of the fundamental human rights of the citizens. Writing on individual freedom, Rousseau notes that, though the social contract gives the body politic absolute power over all its citizens, the sovereign cannot impose on its subjects any fetters that are useless to the community. He remarks further thus:
“We can see from this that the sovereign power is absolute, sacred, and inviolable as it does not and cannot exceed the limits of general conventions and that every man may dispose at will of such goods and liberty as these conventions leave him”.
Both Hobbes and Locke have argued that the power granted to the sovereign, that is the state, is limited and not absolute (Opcit).
The rule of law thrives in a state when there is a separation of powers among the main organs of government, namely, the legislature, the executives and the judiciary, so that the powers of law making, execution and adjudication are not concentrated in one person or a group of persons. Absolute power, argued Lord Acton, corrupts absolutely. To avoid tyranny and oppression of the citizens, he argued, the rule of law should equally embody the separation of powers, so that each organ or arm of government shall be a check on the excesses of the other arms. Thus, democracy, devoid of impunity can only thrive in a state, where the powers of the arms of government are clearly separated, well checked, and the rule of law duly observed. A functional separation of powers will guarantee checks and balances among the executives, the legislature and the judiciary, making sure that none of these organs appropriates the powers (Ibid).
The rule of law as enunciated by the Supreme Court in the case of Military Governor of Lagos State & Ors v. Chief Emeka Odumegwu Ojukwu & Anor (1986) 1 NWLR(PT. 18) 621, per Oputa JSC (as he then was), presupposes the following:
- That the state is subject to the law;
- That judiciary is a necessary agency of the rule law;
- That governments, should respect the right of the individual citizens under the rule of law; and
- That to the judiciary is assigned both by the rule and by our Constitution, the determination of all actions and proceedings relating to matters in dispute between persons or between government and or authority and any person in Nigeria.
In the same vein, the apex court, per Obaseki JSC (as he then was) aptly captured the import and connotation of the term “Rule of law” in the case of Apostolic Church vs. Olowoleni (1990)6 NWLR (PT. 158) 514. As follows:
“The Rule of law and the Rule offeree are mutually exclusive. Law Rules by reason and morality, force rules by violence and immorality.”
The above view of the Supreme Court on the principle of “Rule of law” presupposes, therefore, that law and morality are integral and indeed inseparable parts of Rule of law. It is also inferable from the same passage that Rule of law has no place for violence and immorality.
In the Military Governor of Lagos State & Ors v. Chief Emeka Odumegwu Ojukwu & Anor (supra), the Supreme Court, per Obaseki, J.S.C. Pp.21-22, paras. C-A, held thus:
“The Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the frame-work of recognized rules and principles which restrict discretionary power which Coke colourfully spoke of as ‘golden and straight metwand of law as opposed to the uncertain and crooked cord of discretion’. More relevant to the case in hand, the rule of law means that disputes as to the legality of acts of government are to be decided by judges who are wholly independent of the executive. See Wade on Administrative Law 5th Edition p. 22-27. That is the position in this country where the judiciary has been made independent of the executive by the Constitution of the Federal Republic of Nigeria 1979 as amended by Decree No. 1 of 1984 and No. 17 of 1985. The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the government and all persons in Nigeria. The law should be even handed between the government and citizens.”
It is obvious from the above that “rule of law” plays a vital role in maintaining sanity and preventing impunity in a democratic setting. This is because its strict observance as demonstrated herein, curtails whimsical exercise of power and brings to a halt, abuse of power by those in authority.
Having said that, I shall now proceed to examine the other vital principles in this regard, which are “separation of powers and checks and balances”. (To be continued).
Thought for the week
“The end of law is not to abolish or restrain, but to preserve and enlarge freedom. …” (John Locke).