Societies have had their fair share of bullies who by sheer force of strength pummel their neighbors to submission. Some of these persons aggregate their control of violence and form a Kingdom through conquest and treaties of protection. Kings, Emperors and rulers were previously not subject to the law, they were an embodiment of the law; made popular by Napoleon’s assertion “l’etat c’est moi”. As societies evolved into Modern Democracies, however, there came a need to be bound by a uniform standard of administration in constitutions, hence, the Rule of law. More specifically, the concept of the rule of law in Britain evolved with the Magna Carta which limited the powers of the English monarch.
Scholars agree that the most famous exposition of the concept of the rule of law was the one laid down by A. V. Dicey in his Law of the Constitution in which he postulated:<p>When we say that the supremacy or the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions. We mean, in the first place, that no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land…
… 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 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.
— Law of the Constitution (London: MacMillan, 9th ed., 1950), 194.
Thus, those who make and enforce the law are themselves bound to adhere to it. In Nigeria, this would include the President, Judges, Senators, Members of the House of Representatives Governors and State Assemblymen. If bribery is a crime, “Ghana Must Go” style of lobby amounts to a bribe. In a bribe, both the giver and the taker are guilty. This well-known negative trend must be curtailed.
Incidents of the Rule of law
In a Democracy the people rule through their representatives. These representatives express the common will of the people through the enactment of laws for the welfare and good governance of the people. In our system of the tripartite arms of government, there is the separation of powers among the Executive, Judicial and Legislative arms respectively. It is adherence to the rule of law that determines the smooth function of each arm within the tripod. In this arrangment is also to be found the system of checks and balances.
One of the major requirements for the rule of law in a democracy is that there is an independent Judicial system which would try all before the courts in an impartial manner without fear or favor in an open and transparent manner – captured by the legal saying – Justice must not only be done, but be seen to be done.
The concept “rule of law” is generally associated with several other concepts,
· No ex post facto laws (retrospective laws or laws after the fact). There can be no crime committed when at the time of the alleged act there was no law prohibiting such action. A good example in Nigeria was the Bartholomew Owoh & Ors cases under the government of General Buhari who executed them for peddling coccaine. [as reprehensible as peddling coccaine is, at the time they committed the alleged offences, there were no laws in our Penal or Criminal Code prohibiting their action]. Nulla peona sine lege is the latin maxim that captures the situation. It means “No one should be punished for an act that is not against the law”.
· Presumption of innocence – everyone accused of a crime is presumed innocent until proved guilty. Most military governments failed woefully in this regard with Buhari the most offender. What Attorney-General would advise on a law that shifts this burden to the accused to prove his innocence beats the imagination, but it happened time and again in Nigeria in almost all the Military governments.
· Habeas Corpus – a latin term which means “you must have the body” a right which ensures that the person arrested is told the reason for his arrest. It evolved as a protective measure against arbitrary arrest. The order commands the custodial authority to produce the body before a court of law (usually within 48 hours) to determine the validity of the arrest.
· Double Jeopardy – Persons can only be punished once for every specific crime.
· Legal equality – Every person is entitled to the same rights without regard to social stature, creed, political opinion or race. This has been the problem area of most democracies, inclusive of even the more advanced democracies. In this area comes the thorny issues of access to the courts, equal application of the law, racial discrimination, and the very least considered of all, the rights of aliens (legal or illegal) in whatever jurisdiction they find themselves. For aliens the issue has always been, is their humanity an incidence of their legality? Does the fact that they are aleins also alienate them from the just application of the laws?
Nigeria apparently operates what may be termed a Constitutional Democracy, but to what extent we approximate to a Democracy is a question best answered by the rulers. Nor indeed can we say the so-called Democracy is governed by the Constitution. Further we may also ask if the Constitution was enacted by the will of the people or of a select few who imposed their will on the commonweal and passed it off as the will of the people. If the government is according to law, then, the people should be able to replace a bad government according to law and this protection should be guaranteed by the peoples’ document, the Constitution. Transitions should be easy to make (whether by resignation, election, impeachment or death) because the constitution as the law of the land lays down the guidelines.
The Togo Example
The classic case of a failed constitutional transition followed closely on the heels of my previous article True Democracy. Togo demonstrates clearly a typical example of a Democratic Charade where the Cabal in the Togolese army foisted their will on the people rather than obey the constitutional provision to swear in the Speaker at the death of General Eyadema. The Military Cabal in days purportedly amended the constitution to swear in Faure Gnassingbe Eyadema, Eyadema’s 39 year old son as President to defend their vested interests. It is interesting to read the accounts of how President Obasanjo, a member of the same selfish military class tries to compel Eyadema to do the right thing and abide by the rule of law. http://allafrica.com/stories/200502180366.html I predict here that Eyadema, to placate regional as well as international bodies will be sponsored by the same military, contest elections in Togo and win a landslide election and rule his powerless people wily nilly.
The Military Class vs. the Rule of Law
“Most military dictatorships are formed after a Coup d’etat has overthrown the previous government. One very different pattern was the one followed by Sadam Hussain’s regime in Iraq. which began as a “One Party State ruled by the Baath Party but over the course of its existence turned into a military dictatorship (as its leaders donned uniforms and the military became closely involved in the government). See coup d’état
In Nigeria, the Military as a class has evolved from being Knights in shinning armours coming to rescue the people from currupt politicians (read any coup day speech for laughter- expecially those of Sani Abacha); to the currupt guardians of our Central Bank who cart the money to Dodan Barracks/Aso Rock, State houses and on to Switzerland for safe-keeping out of the sight of the people. The military class has become powerful politicians who insist on ruling Nigeria because they purport that they alone know the problems bessetting Nigeria. They also claim to have a monopoly of the solutions for Nigeria. They further claim, they have all the experience in government institutions. And when they die, their prodigal sons can continue to rule the people after-all they have name-regognition. More of the same.
What Rule of Law?
So if you must insist on the rule of law, pray tell, whose acts are the laws to regulate? Would the law seek to stop a General from having his conference? What law would dare to probe the wealth of persons who having worked for government all their lives have become billionaires. What law would stop a wealthy class of pillaging Generals from coming back to rule over the common people they stole from? Why, the Rule of Law would remind everyone that Section 10 of the Constitution of the Federal Republic of Nigeria provides that “The Government of the Federation or of a State shall not adopt any religion as a State religion“. If you insist on the rule of law, you will be stepping on a lot of toes and vested interests. Whoever heard of such nonsense, Equality before the law? It is an Idealist dream. We need straight Idealists who think all things are possible for those that believe.