EDITORIAL: The rule of law

The rule of law is a legal and political doctrine espousing that the government and the governed in a political state are subject to the law.

It means simply that everyone must act within the boundaries of what the law allows and anyone who acts, whether exercising a legal power or asserting a legal right, beyond the limits permitted by the law will be called to order.

The principle has strong historical links with political governance. It was initially conceptualised for the protection of individual rights against arbitrary exercise of state power.

More lately, the linkage between the rule of law and economic governance has been articulated.

The rule of law also regulates relations between private individuals and entities and secures the rights of individuals against arbitrariness in the use of private power.

Although there is no single definition of the rule of law, its widely accepted elements include (1) existence of validly made laws consisting of statute (written rules), regulations and legal principles derived from judge-made laws, (2) existence of three independent arms of government namely: the legislature, executive and judiciary with the judiciary’s independence enabling it to stand as the fearless arbiter in the event of a dispute between the other two arms of government or the government and the individual arising on the question whether the law has been breached, and (3) equal enforcement of laws.

The presence or absence of these elements has been used to determine whether a state observes the rule of law, and adherence to the rule of law, in turn, has been the hallmark of good governance in a democratic state.

The rule of law, however, does not mean that any law that is validly made goes uninterrogated. If that happens, even laws that violate the aspirations and tenets of democracy and good governance would rule without question.

The pursuit of the rule of law, therefore, entails questioning laws, which apparently are validly made (that is, their making adhered to the stipulations of the law-making process under the constitutional framework in the country to which the law applies).

The rule of law plumb line would question whether such laws promote the tenets of democracy such as respect for fundamental rights and the doctrine of separation of powers.

It is from this perspective that military decrees which suspend the constitution or oust the jurisdiction of courts are not considered as entrenching the rule of law but the rule of force.

In a federal arrangement as Nigeria aspires to be in, the pursuit of the rule of law would also consider whether laws made advance or hinder the goal of federalism.

It is against this backdrop that some people strongly opine that the Nigerian Constitution is too unitary to be able to foster the rule of law that serves the end of federalism.

The 1999 Constitution of the Federal Republic of Nigeria espouses the primacy of the rule of law but unfortunately, Nigeria’s chequered history of democracy and military rule has been characterized by a culture of non-adherence to the rule of law.

Even with the return to democracy, the bane of the rule of law in Nigeria is an entrenched culture of executive lawlessness.

This includes government refusal to enforce the law, executive action taken in clear breach of the law and refusal to comply with court orders.

Government continues to justify noncompliance with arguments of overriding national security.

Yet, it is our considered view that contrary to the position of the government that public safety and national security are better served by clamping down on the rule of law, lessons from the past have borne out differently.

Nigeria must not forget that it was the extrajudicial killing of Boko Haram founder Mohammed Yusuf, that unleashed the sect’s terrorism on Nigeria.

We must not wave off the potential danger of keeping Sheikh El Zakyzaky and his wife, Zinat in custody for more than six years now.

The unabating notoriety of law enforcement agencies’ unlawful use of the powers of arrest, searches, and seizures as well as detention is also greatly worrisome.

In the name of fighting corruption, public safety and national security, government seems to be turning a blind eye to the arbitrary and excessive use of law enforcement powers by law enforcement agents especially the police, EFCC and DSS.

While it is true that public safety and national security sometimes justify clawing back on fundamental human rights, the limits of the power to restrain human rights must NEVER be self-determined.

It must be determined by law and law alone.

The only effective way of ensuring this is to return to the courts the power to mediate the broad powers of arrest and seizures through subjecting them to the issuance of court warrants.

The need to seek court approval through the issuance of warrants before law enforcement agents can deploy some of the powers of arrest, search and seizure has been made redundant because the enabling statutes of some law enforcement agencies have transferred supposed judicial powers to issue these warrants to officers of the same policing agency.

This negates the separation of powers test. It puts at risk the rule of law. Indeed, the time is ripe for government to revisit this anomaly.

The failure to adhere to the rule of law ultimately erodes public confidence in both the justice and state systems.

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Citizens whose faith is eroded are often forced to resort to self-help thus accentuating the situation of lawlessness that the rule of law is conceptualized to mitigate.

Government is therefore urged to take a more reflective approach in interrogating the relationship between rule of law on the one hand and national security and public safety on the other.

The truth is that they are neither mutually exclusive nor antithetical.

The assault on the rule of law is itself a huge risk factor to national security and public safety.