The concept of the rule of law was made popular by Professor A.V. Dicey in his book Enspirit De Law published in 1885. According to Dicey, rule of law means absence of arbitrary government. Rule of law also point out that citizens rights must be protected by the law of the state.
The rule of law also implies supremacy of the law as administered by the ordinary law courts. It simply connotes that the law and not man is supreme. It is the law that rules and nothing else. It means ruling of constitutional government and the absence of dictatorship.
Rule of law as stated by Justice Cardozo of the United States of America is a principle or rule of conduct established so as to justify a prediction into reasonable certainty that will be enforced by courts if its authority is challenged.
Key Features of the Rule of Law
- Supremacy of the Law: The law of the land is higher than anybody and nobody is above it.
- Equality before the Law: All citizens are equal before the law irrespective of one’s position, colour, status etc. in the society. The rulers and the ruled are equal before the law of the state.
- Respect for Human Rights: The rights of the citizens must be protected and respected. Nobody has the right to violate another person’s right except through lawfully means. For example, a law breaker is a suspect until the court finds such a person guilty.
- An accused persons should be allowed to contact and talk to his lawyer and they should have access to all persons and families which might help in the preparation of their defence.
- The law must be public and not kept in secret.
- Court proceedings or trials must be made public as much as possible.
- Laws must not be backdated.
- The punishment for each offence must be clearly stated.
- The law must be applicable to all citizens.
- Laws must not discriminate and or grant unnecessary benefits to some sets of people. For instance, many political office holders who mismanaged their position often hide under the immunity clause, a law which unduly protects them from being prosecuted for a proven misconduct.
Importance of the Rule of Law
- It ensures obedience to the law of the land.
- It breeds harmony and peaceful co-existence in the society.
- It allows every member of the society to know their rights and duties.
- It enhances the protection of citizens’ rights in the state.
- It provides the citizen with a shield of protection.
- It is a preferred line of defense against arbitrary government.
- The importance of the rule of law is recognized by the existence of the International Commission of Jurists, an agency of the U.N.O. made up of experienced lawyers from different countries.
- The arbitrary use of government or political powers is not permitted.
- The personal liberty of the citizens is protected.
- The rule of law protects encroachment on the freedom of the individual citizen.
Problems of Rule of Law
The problems of the rule of law include:
- The type of government practiced in the country. Only democratic government allows the rule of law to reign. Other forms of government like: military government, monarchical government, totalitarian etc. disallow the rule of law.
- A situation where the judiciary is not independent or is under the control of the executive the rule of law is not applicable.
- Custom and tradition of the people may hamper the reign of the rule of law.
- The existence of special tribunals to try some cases does not allow the normal hearings of the court.
- Declaration of the state of emergency. During this period, the rule of law is set aside. The imposition of curfew is a limitation to the rule of law.
- Judges are immune from legal action arising from their judicial duties. They cannot be sued for giving judgment.
- Special courts for some people contradict the principles of the rule of law.
- During times of emergency, the rule of law is suspended.
- The use of delegated legislation has often made it possible for the rights of citizens to be violated without the possibility of obtaining re-dress.
Principles of the Rule of Law
As stated by A.V Dicey, the rule of law hinges on three principles, they are:
- The principle of impartially or due process: This means absence of arbitrary or discretionary power on the part of government. That no man can be punished or made to suffer any breach of the law unless it is established before the court of law.
- The Principle of Equality: This implies that nobody is above the vigilant eye of the law. No citizen is too powerful to be above the law. Some laws should be applied to all men no matter their status, position in life. All citizens should enjoy the same access to the facilities of the law and equal right to hearing and legal advice in the courts.
- The Right of the Individual: A free society is one that guarantees individual fundamental human rights. In 1948, various government came and sat together to proclaim the universal declaration of human rights. Such rights are not conferred by the government but by the constitution as Dicey said that the constitution is the result of the ordinary law of the land.