THE RULE OF LAW
The rule of law is defined as the supremacy of law over everybody in a political system. Rule of law is seen as a provision made by the constitution with emphasis on supremacy of the law, equality before the law and the presence or inclusion of the principle of individual rights. The law should be able to guide every individual and activities in a state. According to Professor A. V.Dicey, the political leaders that are entrusted with the affairs of the state should abide by the rule of law and govern the people according to the provisions of the constitution of that particular country. He maintained that when this is respected, there will be absence of arbitrary government. In addition, powers in government, should not be concentrated in the hands of a few individual but should be exercised by different institutions to make for good governance.
Principles of the Rule of Law
The following are the principles of the rule of law as propounded by Professor A.V.Dicey.
- Principle of equality: It states that laws should apply equally to all citizens of a country, irrespective of their economic or political status. Nobody should be above the law. Also, access to legal facilities should be granted to all.
- Principle of impartiality: This principle is of the view that the law should be impartial in dealing with offenders. This means that no person should be punished for any offence until otherwise established by the court. Any accused person is still regarded as a suspect by law, and should not be detained for more than twenty four hours, without producing the individual in court.
- Principle of individual rights: Every human being is entitled to an exercise of fundamental rights and freedom and that when these rights are violated, citizens should have the right to seek redress from the courts. Only the courts have the jurisdiction to entertain such cases. Additional Features of the rule of law
- Supremacy of law: The supremacy of law over every individual is established.
- Access to legal facilities: Any accused person should be allowed access to his lawyer and other facilities that might be helpful in the preparation of his case.
- Provisions of the constitution: Every government should rule the people according to the established laws and provisions of the constitution.
- Fair hearing: Any body arrested for any offence is still a suspect and should be given a fair hearing.
- The law should be made public: Trial of cases in courts should be made public as well.
- Right to appeal: The individual should have the right to appeal when not satisfied with the judgement of the lower court.
- Backdating of laws: Laws must not be backdated.
- Rights of individual: Rights of individuals should be enforced and guaranteed.
LIMITATIONS TO THE APPLICATION OF RULE OF LAW
- Immunity of Heads of states: He may not be sued or appear in court. This privilege is not extended to the citizens and it is a limitation to the rule of law.
- Diplomatic immunity: Diplomats cannot be prosecuted in the country where they are residing as accredited representatives of their country.
- Immunity of the parliament: The law makers are immune from every utterance, actions or statements made in parliament.
- Delayed justice: Justice delayed is agreed to be justice denied. The reasons are that some individuals have spent years in custody with their cases frequently postponed.
- Tribunals: They are not constitutional or legal courts. Membership of a tribunal in most cases are people without legal knowledge. Individual rights for a fair hearing are always denied them.
- Delegated legislation: Most bodies or organisations exercising this power of legislation have often made it possible for the rights of citizens to be violated and even without the possibility of obtaining any redress.
- The rich and the privileged few: They often use their wealth and positions to prevent justice. This is a limitation to the application of the rule of law.
- Types of government: A one – party system can grow into dictatorship, thereby limiting the application of the rule of law. The military in politics: The intervention of the military in the political process and suspension of the constitution are limitations to the rule of law.
- State of Emergency: If a country is in crises or about to fight a war, state of emergency could be declared. Arbitrary rule may be enthroned and citizens may be denied of some of their rights.
- Customs and traditions: In the process of trying to respect customs and traditions of a particular people, the application of the rule of law may be neglected.
- Unlawful detention, arrests and torture: Certain punishment administered by the law enforcement agent e.g. the police, are limitations to the application of the rule of law.
- Attitude of government: In most cases, the executive might refuse to honour the decisions of the law courts.
- Illiteracy, poverty and ignorance: This can limit the application of the rule of law.
Need to Uphold the Principle of the Rule of Law in a State
- It checks despotic tendencies of rulers: That is, the actions of the rulers must conform with the laws of the state.
- It protects the citizenry from arbitrary rule: Citizens should have access to courts to seek redress whenever their rights are trampled upon.
- Fundamental human rights: The rule of law guarantees the fundamental human rights of citizens and they are clearly stated and entrenched in the constitution.
- Equality of all citizens: The principle of the rule of law ensures equality of all citizens before the law, that is, the rich and the poor are treated equally.
- Supremacy of the law: The law becomes supreme over and above all institutions and citizens irrespective of status or position. Attainment of law and order: The principle of the rule of law ensures the attainment of law and order in a state.
- Right to appeal: The right of the individual to appeal is assured, especially when he is not satisfied with the judgement of the lower court.
- Press freedom: The rule of law enforces freedom of the press and makes it more functional.
- The court has the final say: In establishing whether a suspect is guilty of the offence or not the court has the final say.
- Unlawful detention: The rule of law has established the right of the individual to sue the government or law enforcement agency for unlawful arrest and detention.
- Limitations: The rule of law places limitation to what political leaders can do and cannot do, not only that, the citizens are also made to adhere strictly to the laws of the land.
FACTORS THAT CAN ENSURE THE ENFORCEMENT OF THE RULE OF LAW
- Independent judiciary: To ensure the enforcement of the rule of law, there must be an independent judiciary.
- Press freedom: The press must be free and not to be censored. The government should not control or dictate to the press.
- The law to be kept open: The law must not be kept secret but open so that people can easily see it and make reference.
- Quick dispensation of justice: Justice must not be delayed but must quickly be dispensed, because justice delayed is justice denied.
- Period of detention: Citizens or suspects should not be detained by the police for more than the stipulated hours (twenty four hours).
- Public trial: Trials of suspects must be made public and journalists should not be barred from covering the proceedings.
- Power separation: Powers should be strictly separated and adhered to by the various arms of government. Obedience to this ensures the smooth operation of the rule oflaw.
- To seek redress in courts: Citizens should know their rights and be prepared to seek redress in courts whenever these rights are violated.
- Democracy: A democratic system accommodates the operation of the rule of law, better than any other system.
- Right to appeal: Citizens should have the right to appeal when they are not satisfied with the judgement of the lower court.
- Literate Population: The people must be educated to know their rights and how to defend them.
- Checks and balances: Checks and balances among the organs of government will help to prevent dictatorship in the state.
- Extra-adjudicating bodies: There should be the establishment of extra adjudicating bodies like Ombudsman to complement the efforts of the courts and for quick dispensation of cases.
- Retrospective laws: There should not be the existence of such laws in order to ensure a better and effective enforcement of the rule of law.
- Enforcement Agents: The existence of an efficient and well-equipped law enforcement agents.
- Legal Aid: The establishment of free legal aid for the less-privileged.
- Supremacy of the Law: Both the ruler and the ruled should respect and uphold the supremacy of the law of the land.
WAYS GOVERNMENT OF A STATE CAN VIOLATE THE PRINCIPLE OF THE RULE OF LAW
- Self Interest: The executive can maintain the constitution to suit itself and for selfish purpose, instead of the national interest.
- Ineffective Control: Delegated legislation may lack effective control from the executive.
- Interference: The government can interfere with the independence of the judiciary.
- Inability to Check: The legislature may lack the ability to check the excesses of the executive.
- Lack of Respect: In place, could be disrespect for fundamental Human Rights by government and its agents.
- Emergency Periods: There is limitation of the rights and freedom of citizens by government during emergency periods.
- Undue Delay: There could be undue delay of trials of suspects by government as a result of political reasons.
- Social and Political Discrimination: By government e.g. religion, ethnicity and gender.
- Special Tribunals: The establishment of special tribunals and extra judicial bodies can violate the principle of the rule of law.
- Backdated Laws: The government can make retrospective legislation or backdated laws thereby violating the principle of the rule of law.
- Secret Trials: The government can engage itself in secret trials of some suspects believed to be their political enemies.
- Denied defence lawyers: If accused persons are denied defence lawyers, especially of their own choice. Also the accused could be denied the right to appeal, when not satisfied with the judgment of the lower court.
- Misuse of para-Military organisations: The government of a state can violet the principle of the rule of law through the misuse of para-military organisations.
- Failure of government: The failure of government to give adequate publicity to laws in the state.