THE RULE OF LAW MEANING OF THE RULE OF LAW The rule of law is a constitutional doctrine which emphasizes the supremacy of law over and above the rulers and the ruled in a state as administered by the law courts. The rule of law exists to prevent any form of arbitrariness in government. It was propounded by Professor A.V Dicey in his book Introduction to the law of the Constitution in 1885. Principle of the Rule of Law. There are three major principle of the rule of law. These are: 1. The Supremacy of the Law: This simply means things the law of a state is supreme i.e. higher than anybody and that everything must be done according to the law. It further means that an accused person is deemed innocent until proven guilty, punishment for crimes must be according to the law etc. 2. Equality before the Law: This simply means all men are equal before the law irrespective of social status. This principle further states that, all citizens should enjoy equal access to legal facilities as well as right to fair hearing. 3. Respect for Human Rights: This principle states that citizens must enjoy certain basic rights and that these basic rights must be protected and guaranteed by law. It also states that individuals have the right to approach the law courts wherever their rights are violated. Other principles/features of the rule of law a) Principle of fair hearing: People must be given opportunities to be heard or defend themselves before been judged or punished. b) Principle of Impartiality: The application of the law should be the same on everybody. The law should be applied without fear or favour. c) The law should be made public and not kept in secret. d) The trials of the cases or accused persons should not be made public and not in secret. e) Punishment for offences must be within the law. f) The laws of the land must not be ambiguous i.e. it must be simple enough to be understood. g) Accused people must be given opportunity to appeal a judgement if they are not satisfied with it. Benefits/Merits of the Rule of Law 1. Supremacy of the constitution 2. It ensures or guarantees freedom of the press 3. It protects citizens from arbitrary rule/unlawful detention 4. It guarantees/protects fundamental human rights 5. It promotes equality of all citizens 6. It gives citizens the right to appeal especially if they feel cheated. 7. It makes government transparent and accountable to its citizens. Factors that limit the Application of the Rule of Law 1. State of Emergency: The application of the rule of law may be limited when a state of emergency is declared in a place. This can lead to abuse of human rights such as restriction of movement, dusk to dawn curfew etc. 2. Diplomatic Immunity: Ambassadors cannot be arrested or sued in countries where they reside but can only be repatriated and this undermines the rule of law 3. Executive Immunity: Immunities for presidents and governors also limit the rule of law as they cannot be arrested or sued while in office. 4. Parliamentary Immunity: Members of parliament cannot be arrested for anything they say in parliament no matter how false or libelous they may be. 4. Partial Judiciary: This also limits the rule of law because it means that judges will not be free to make decisions that will favour the people. 5. Type of Government: The type of government practised in a country like military rule, absolute monarchies will also affect the application of the rule of law. 6. Poverty and Ignorance: Most people are not aware of their rights and do not even know how to seek redress whenever their rights are violated or abused and this affects the rule of law. 7. Absence of press freedom also affects the application of the rule of law. 8. Use of special courts such as tribunals will also affect the rule of law. 9. Outbreak of contagious diseases or epidemics like Covid 19. Factors that will promote the Rule of Law 1. Existence of a free, independent and impartial judiciary 2. Freedom of the press 3. Justice should not be delayed because justice delayed is justice denied 4. Citizens should be taught basic citizenship education so as to expose them to their rights and how to seek redress when violated or abused to tackle the problem of illiteracy and ignorance 5. Democratic system or type of government should be adopted 6. The laws of the land should be made public for public consumption SEPARATION OF POWERS The doctrine of separation of powers simply means that the three arms of government i.e. the executive, legislature and judiciary should be separated in personnel and functions. This means that no one or organ of government should combine executive, legislative and judicial functions of government. The doctrine of separation of powers was propounded by a French Thinker and Writer Baron de Montesquieu around the 18th century. Reasons/Merits of Separation of Powers 1. It prevents government any form of arbitrary such that no arm of government becomes too powerful 2. It promotes the independence of the different arms or organs of government i.e. it prevents undue interference of one arm of government over another. 3. It promotes efficiency in government as each arm of government focuses on its constitutional responsibility 4. It promotes checks and balances among the various arms of government Demerits 1. Strict adherence to the rule of law may slow down decision making in government 2. It may lead to unhealthy rivalry and lack of cooperation between the various arms of government. Separation of Powers in a Parliamentary System of Government 1. There is no strict or complete separation of power in a cabinet system of government 2. There is fusion of powers in the discharge of responsibilities between the arms of government 3. Individuals can function or operate in two or more arms of government i.e. members of the legislature can also function as members of cabinet. 4. In Britain, the Lord Chancellor who is the head of the judiciary is also a member of the legislature and the executive. 5. The executive is collectively responsible to the parliament for its actions. Separation of Powers in a Presidential System of Government 1. The cabinet or ministers are responsible to the president and not to the parliament 2. No one person or organ of government combines legislative, executive and judicial functions 3. In the presidential system, the legislature makes the laws, the executive applies the laws and the judiciary interprets the laws. 4. None of the three arms of government should usurp the powers or interfere in the workings of the other two arms CHECKS AND BALANCES The principle of checks and balances emphasizes the need for one arm of government to checkmate or act as a watch dog over the activities of the other arms of government. It is also means the control and supervision of one arm of government by other arms of government to prevent the arbitrary use of power. This simply means, power should be used to check power. This is in order to prevent tyranny, oppression and any other forms of arbitrariness. It was meant to augment the doctrine of separation of powers. It was coined also by French Thinker and Writer Baron de Montesquieu around the 18th century. Assignment 1. Write down the meaning of the following a) Writ of Habeas Corpus b) Writ of Mandamus c) Arbitrariness d) Ultra vires 2. Mention two forms of controls for each arm of government with examples. I. The executive over the legislature II. The legislature over the executive III. The judiciary over the executive and legislature CONSTITUTION Meaning of Constitution. It can also be seen as the whole body of fundamental laws, customs, conventions, principles, rules and regulations according to which a particular country is ruled or governed e.g. the present 1999 constitution of Nigeria (WAEC). Constitution refers to a body of rules, principles, traditions, conventions and laws by which a country is governed. It is the document that contains how power is shared among the arms and tiers of government, it also states the rights, duties and obligations of the citizens of a country. The constitution exists to prevent any form of arbitrariness (abuse/wrong use of power). Sources of Constitution 1. Customs and Tradition: Certain part of our constitution are drawn from the customs and tradition of the people. This includes their beliefs, values, norms, institutions etc. 2. History of the People: Constitutions are also formed from the historical experiences of the people i.e. a good constitution must take into consideration the past political experiences of a state. 3. Acts of Parliament: This are laws made by the legislature which forms part of the constitution. 4. Decrees/Edicts: This are laws made by the federal and state military government. These laws also form part of the constitution e.g. the military decree of 1967 that created the 12 state structure in Nigeria. 5. Constitutional Conferences: Constitutional conferences are meetings attended by experts such as constitutional lawyers, political experts and leaders, retired judges, religious/traditional leaders, civil societies etc. for the purpose of drafting or forming new constitutions. The decisions reached at this conferences most times form the basis of a new constitution, E.g. the constitutional conference of 1958 held in London that produced the 1960 independence constitution. 6. Judicial Precedents: This refer to past judgments of the court on constitutional or national issues. These past judgments are also used to form part of a constitution. 7. Constitution of other Countries: The constitution of other countries maybe studies or considered with relevant sessions or part adopted to form a new constitution e.g. the presidential system of government was borrowed from the American constitution and added to form the 1979 constitution. Features of a Constitution The features of a constitution are as follows 1. The Preamble: This refers to the introduction or introductory part of a constitution which states the authority and purpose of the constitution. 2. Structure of Government: The constitution clearly states the type of government to be practiced in the country i.e. unitary or federal system of government. It also shares the powers of government between the three tiers of government. 3. Political Institutions: it also states the system of government to be practiced i.e. presidential or parliamentary system of government. It also defines the powers of the arms of government and how they should relate. 4. Fundamental Human Rights: It also contains the rights, duties and obligations of citizens and how those rights should be protected. E.g. The protection and safeguard of human rights is contained in Chapter IV of the Nigerian constitution 5. Procedure for Amendment: The constitution also states the way and manner it should be amended when the need arises. 6. Party System: The constitution also provides for the party system to be practiced in the country i.e. one party, two party or multi-party system 7. Tenure of Office for Elected Officials: This means, the constitution also specifies the number of years elected government officials can stay in power. Types of Constitution 1. Written Constitution: This is the type of constitution where all the fundamental rules and regulations of a country are written or codified in a single document. This type of constitution can easily be purchased, read and understood by citizens. Examples of countries with written constitution include Nigeria, Ghana, U.S.A, and India. The 1999 constitution of Nigeria is a very clear example of a written constitution. Features a. It can be obtained and consulted as a single document b. It enhances references in cases of disputes c. It can be used by both educated and laymen d. It can be amended or changed following the right procedure or process i.e. it stipulates the process of its amendment. e. It is usually rigid in nature f. It removes uncertainties normally experienced with unwritten constitution Advantages a. It cannot be easily amended by political leaders since its process of amendment is rigid. b. It prevents the emergence of a dictator because powers and their limitations are clearly spelt out. c. It can be obtained and consulted as a single document by citizens d. It ensures or promotes political stability e. f. It removes uncertainty normally experienced with unwritten constitutions g. It is suitable for an heterogeneous society Disadvantages a. It cannot be easily amended to meet emergency situations b. It may create problems of interpretation i.e. laws may mean different things to different people. c. It is very difficult to amend because of its rigid nature d. Except it is frequently amended, it may not meet present and future needs. e. It is not suitable for a homogenous society. 2. Unwritten Constitution: This is the opposite of a written constitution. It is the type of constitution that is not written down or found in a single document. This simply means the laws of a country are found in several sources and not in a single document. Examples of countries with unwritten constitution are Saudi Arabia, New Zealand, United Kingdom, Israel etc. Advantages a. The constitution is flexible in nature i.e. it is very easy to amend b. It meets both the present and future needs of a country c. It promotes or encourages quick and easy decision making d. It reduces disputes that may arise from it since it is not codified in a single document e. There is no problem of interpretation of laws because of its flexibility. f. It can be easily amended to meet emergency situations Disadvantages a. It can be easily manipulated by political leaders for their selfish interests. b. It may lead to the emergence of a dictator. c. The lack of codification of fundamental rights of citizens undermines the ability to seek redress when rights are violated d. It creates ambiguities which can lead to general misrepresentation e. It is not suitable for heterogeneous or multi ethnic/racial societies f. It does not give room for easy reference for cases in terms of dispute or interpretation 3. Rigid Constitution: This is the type of constitution that cannot be easily changed or amended. The process of amendment requires special procedures and it is usually difficult or cumbersome. For example in Nigeria, it requires 2/3rd majority of both senate and House of reps as well as 2/3rd majority of state houses of assemblies before any law can be amended. Advantages a. It prevents arbitrary rule of any government in power b. It cannot be easily manipulated or changed by political leaders for their selfish interests. c. It ensures the protection of the minority since it cannot be easily changed or amended d. It ensures political stability in a country because no section of a country can amend the constitution to favour its people e. It is suitable for a multi-ethnic societies f. They are usually written in nature i.e. they can be found in a single document Disadvantages a. It is very difficult to amend i.e. its amendment procedure is very difficult and cumbersome b. Its process of amendment at times is time wasting and expensive because it amendment process is just like changing ordinary law. c. It cannot be easily amended to meet emergency situations d. It does not suit the changing social, economic and political situations of a country. 4. Flexible Constitution: This is the type of constitution that can be easily changed or amended. It does not require a special procedure for amendment as it can be changed with the same procedure for changing ordinary law examples of countries Britain, New Zealand etc. Advantages a. A flexible constitution is very easy to amend b. Its process of amendment is not time wasting and expensive because it amendment process is just like changing ordinary law. c. The flexibility of the constitution makes it very quick and easy for decision making e. It suit the changing social, economic and political situations of a country. 5. Federal Constitution: This is the type of constitution in which the powers of government are shared between two or more levels of government i.e. the central/federal government and the component units otherwise known as the federal, state and local government. Examples of countries include Nigeria, U.S.A, India, Canada etc. 6. Unitary Constitution: This is the type of constitution which does not share governmental powers between the central government and other units. Here, the powers are concentrated or vested in the central government alone e.g. Britain, New Zealand, France, Belgium etc. Functions of the Constitution 1. It defines the power of government 2. It protects the rights of the citizens of a country 3. It also specifies the rules under which a country and citizens are to be governed 4. It prevents government from becoming too powerful and dictatorial 5. It helps to maintain stability by specifying how the government of a country should be changed. 6. It prevents from all forms of arbitrariness on the part of government. Reasons why there cannot be a Democracy without a Constitution 1. Constitution is the bedrock for democratic governance. 2. It is a defence against anti-democratic forces/safeguards democracy. 3. The constitution is supreme in any democratic state. 4. Constitution stipulates the term of office for public office holders. 5. It guarantees smooth and peaceful change of government as stated in constitution. 6. It stipulates powers and composition of government in a democracy. 7. It ensures fairness and equity among individuals, groups and governments in a democracy 8. Fundamental human rights that citizens/ human enjoy in a democracy are stated in the constitution. 9. Popular sovereignty as a pillar of democracy is quaranteed by the constitution. 10. Majority rule and minority rights as a pillar of democracy is guaranteed by constitution. 11. It ensures limited government (i.e. made possible as stated in the constitution through limitations on the powers of government 12. Constitution prevents dictatorship through separation of powers/checks and balance in a democracy CONSTITUTIONALISM Constitutionalism as a basic principle of government emphasizes strict adherence to the provisions of the constitution. It simply means, the theory and practice of the constitution. While the constitution is the law, constitutionalism is the application or practice of the constitution (law). The principle of constitutionalism are as follows 1. Supremacy of the law i.e. the law is greater than all 2. The rights of citizens to challenge any decision of government seen as unconstitutional 3. The power of the courts to declareany actions of government unconstitutional or ultra vires Assignment Write down five advantages and disadvantages of federal and unitary constitution.
