The concept of Rule of Law has since Dicey’s works,1 grown in substance and scope. As a dynamic doctrine, times and events have continued to shape its meaning and coverage, that at present, the concept is applicable to a wide range of issues and topics hitherto unknown to be part of the initially conceived classification. These include the guarantee of religious rights, economic rights and numerous other political rights. This paper is concerned with the growth of the concept of Rule of law into what can be described as a broad political doctrine and its impact on individual political right. The paper shall treat selected political topics such as equality, man’s right to nationality, movement, Association, political participation etc as they relate to the rule of law. No meaningful discourse can be made on the concept of Rule of Law without reference to meaning for it is only by knowing and understanding the object – Rule of law, that we can discuss and appreciate the subject matter – its political relevance.
MEANING OF THE RULE OF LAW
Legal concepts and definitions almost always, pose the problem of the blind men and the elephant. Most often, numerous authors, almost always agreeing on some basic issues and differing on several others, have defined legal concepts severally. The Rule of law is no exception to this general trend. However, through the times, the concept of Rule of law has enjoyed some degree of definition which taken together translate to the desire of man in society to subject all members and institutions including his government, to the law of the land and the avoidance of undue discretion and unjustified or arbitrary practices and conducts among public officers to the end of protecting and preserving the liberty of man and the natural dignity of humanity.
The earlier interpretations of the concept were derived from the theories formulated by legal philosophers, each formulation stressing the subordination of the ruler to rules of law either enacted or accepted and upheld by the community and its law. In as early as BC 350, the famous Greek philosopher Aristotle,2 invented the term when he asserted that “the rule of law is preferable to the rule of man”. This first use of the term :rule of law” generated great interest among scholars, but each new couching of the expression only became a starting point for subsequent explorers. Bracton the English philosopher in the 13th century maintained that either human or divine law governs man. That even though the king might not be subject to man, he is subject to God and the law because it is the law that made him king.3
It is therefore little surprise that following the revolt of the English barons challenging the assumed divine right of English kings over the English people, the Magna Carta was signed into law by King John4. Generally regarded as the first enactment and origin of the modern or present day concept of Rule of law, the charter provides in part that:
“No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished or in any way destroyed, nor will we go upon him, or send upon him, except by the legal Judgment of
his peers or by the law of the land” 5
Writing in the 17th century, John Locke ascribed to the rule of law, the meaning that all governmental powers must be distributed and their exercise determined by “reasonably prescribed laws” as opposed to the Whims and Caprices of anybody or authority. He reasoned further that freedom of men under government is to have a standing rule to live by, rules common to everyone of that society, and made by the legislative power created in it, and not to be subject to the inconstant, unknown, and arbitrary will of another man.6
The modern concept of the Rule of law was given comprehensive attention in 1885 when professor A.V. Dicey7 of Oxford University, now regarded as the father of the concept, wrote that the rule of law generally includes under one expression, three distinct though kindred conceptions, namely;
- The supremacy of the law and the exclusion of all forms of arbitrary and discretional exercise of authority.
- The equality of all men before the law, and equal amenability of all to the law and courts of the land.
- The inherence of the fundamental rights of man which are often enshrined in modern constitutions, as natural rights and not grants by such constitutions which together with court decisions and other legislations across time, only affirm their inherence8
Dicey’s three conceptions of the rule of law have come under severe criticism from subsequent writers such as Sir Ivor Jennings9, R.F.V. Heuston10 and K.C. Davis11 who clearly showed that Dicey’s concepts are ideals which were not completely obtainable even at his age as they are today. That equality of all and equal amenability of all to the laws and courts must admit of the numerous exceptions that abound now even as they did in Dicey’s time12. Finally that while arbitrary exercise of power is neither validly supported nor supportable, elimination of all forms of discretional exercise of authority is neither possible nor desirable.13
By and large, Dicey’s ideas are still relevant and find support in even more recent developments of the rule of law as a universal principle. In modern times, the concept has been so broadened that it will not be untrue to say that today, the rule of law preserves and protects everything good and positive to the well being and welfare of man in society, everything connected with due process in the conduct of the affairs of men in society and exclusion or condemnation of everything arbitrary and contrary to the due process in the affairs of men in society. Dicey lucidly captures this fact which has since become enshrined in several international legislative instruments as well as virtually every municipal constitution14, when in his epic writing, he concluded that it translates to the fact that
... 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. 15
GLOBALISATION OF THE RULE OF LAW
The huge cost of the first and especially the second world wars in terms of human and material loss, broadened the awareness of men and realization of the need to protect men from the ravages of extreme authority or power and it’s abuse. The Jewish experience in the days of the holocaust under Adolph Hitler’s Nazi Germany16 acutely heightened the desire for men to be ruled by the law in all nations. This need in turn generated collective interest in the pursuit of peace among nations through the Rule of law. It became obvious that the cost of its abuse is anarchy, utter chaos; and anarchy as demonstrated by man’s experience through the years is not the burden of the singular nation or group immediately affected, but a burden which other nations and groups are also saddled with.17 It therefore did not come as a surprise that the United Nations charter stated as a UN principle, the promotion of respect for and observance of human rights and fundamental freedoms without discrimination based on race, sex, language or religion.18
In 1948, the committee of nations (UN) further strengthened it’s commitment to the Rule of law through the universal Declaration of Human Rights. (UDHR) the UDHR a code of universally accepted standard of treatment and protection of the rights of man 18.Designed to guide member nations in practice, described at the time to be largely merely hortatory and of moral value, it’s provisions have later been incorporated into domestic national legislations and regional instruments19 to an extent that some jurists have reasoned and correctly too, has made it part of the customary law of nations.20
The concept received even wider exposition in the conventions of the International Committee of Jurists (ICJ) held in New Delhi and Lagos in 1959 and 1961 respectively. Often now referred to as the laws of New Delhi and Lagos, their provision encompass the right to representative Government the willing subjection of the executive, especially over delegated legislation, to independent judicial control, an independent judiciary and in criminal processes and procedure, fair trial, bail, legal aid and the presumption of innocence. While the above instruments guarantee or preserve the rule of law in time of peace, the safety and respect for human dignity and rights are addressed in time of conflicts through other international covenants and instruments. These include the Genocide Convention of 1948 which punishes for the crime of genocide, and the Geneva Red Cross Convention of 1949 which protects combatants of, who are wounded; prisoners of war – soldiers or civilians; and prohibit inter alia, willful killing, torture and Inhuman treatment; willful causing of grievous bodily harm, unlawful deportation, taking of hostages and the wanton destruction of property21inter alia.
The present scope covered by the rule of law is thus widely broadened. In a concise form, the rule of law, now encompasses the entire idea of social justice, legal justice as tampered by natural justice and equity especially in criminal procedure where its application has also been greatly enhanced. Thus the rights now protected by the Rule of law, can be classified into political rights, social rights, economic rights in addition to human rights or fundamental human rights which also form part of its objects. This paper is for the present purposes, concerned with the political rights of man as recognized and protected by the Rule of law, and shall now discuss in detail, this focus.
THE RULE OF LAW AND POLITICAL RIGHTS
The rights referred to as “human” or “fundamental human” rights in modern jurisprudence are numerous and cut across numerous sectors and aspects of social life. Intricately inter-woven together, the rights often over lap so that what is seen as one civil liberty or political right may equally constitute what is a social or economic right.22 Be that as it may, The distinct concept of political rights has been universally explored accepted as a necessity and expressed in international instruments over the past years.
What is Political Right?
The Blacks Law Dictionary defines political right as
The right to participate in the establishment or administration of government, such as the right to vote or the right to hold public office.23
Political Rights are thus those rights which a person is entitled to as a member of his political society. They are those rights, which constitute the citizens inherent stakes in society.
By this, I mean right to participate in the determination of the structure, policies and administrative process of his political society. It is man’s right to participate in the formulation and determination of the political destinies and principles of his polity.24
Global recognition of the jurisprudence of Political rights was first reflected in the 1945 United Nations Charter more emphatically pronounced in the UDHR of 1948, clearly expressed in the final draft of the Delhi congress of the international commission of Jurists (ICJ) in 1959 as well as the ICJ Laws of Lagos 1961, and specifically underscored and more particularly elaborated in the 1966 UN Covenant on Civil and Political Rights where the political rights of man inter alia, were declared, entrenched and enumerated in International legal reasoning, as milestones which every modern nation and peoples must strive to attain. Several other regional instruments and national or domestic legislations have since reflected this through the relevant provisions of the law, securing to the individual the various political rights due to him. The political rights protected by the rule of law is divisible into two broad headings namely, political rights of the individual and political rights of groups and peoples. Thus, central to the concept of political rights, is the idea of participation in public affairs and management. This singular idea in its numerous manifestations forms the basic core of each and every particular political right. This part of this paper shall explore the basis and nature of participation, as well as how it applies to the individual.
THE BASIS AND NATURE OF PARTICIPATION
Man, any where born and found is the possessor of natural rights akin and equal to that possessed by any other man in any other place born or found. Naked, wailing and helpless, man is born everywhere of the same degree of weakness and strength. This exhibition at birth, of, natural equality and the inherence of the same degree of right and capabilities, forms the basis of man’s right to participate in the politics of his polity. This truth recognized from time immemorial, is beautifully capitulated by the American founding fathers in the 1776 USA declaration of independence when they declared:
“We hold those truths to be self evident; that all men are created equal; that they are endowed by their creator, with certain inalienable rights; that among these are life, liberty and the pursuit of happiness”25
Thus according to Professor Iwe every human being is a person and an active subject of rights and duties. He is a responsible free being. In his own hands, the author of nature placed the right and power with which to co-operate freely in the achievement of his goals and destiny. 26
In the historical and sociological evolution of man, there was first the individual seeking his survival and thriving on and by the subjection and subjugation of every other creature and the world around him. This stage preceded the development of society where man evolved the culture of collective existence for collective pursuit of collective happiness, satisfaction and survival. The modern state is an advancement of this societal culture and thus, an instrument for securing the original intent of association- the welfare of man27. With man’s welfare as the “raison d,e’tre of the political community, the political community is thus a natural means by which man may pursue self development and fulfillment; A natural theatre in which his nature and personal dignity makes him an active and necessary act or. Hence Aristotle’s observation that “man is a political animal”, 28
As a member of his polity, there are a number of means by which man may exercise his political right to participate in the political affairs of his society. Principal among the various forms of participation are two major means – viz direct and indirect participation. Every member of the polity may participate by directly contributing his opinion or choice in the determination of the collective interest or will by one form of voting or the other. On the other hand he may have his opinion stated by a representative whom he may have earlier directly elected and therefore mandated to do so, as in the process of electoral colleges29
POLITICAL RIGHTS OF THE INDIVIDUAL
Man, (The individual) is the component basis of all rights and the ultimate beneficiary of all laws and privileges in society. For his welfare and ultimate happiness, society is organized into states and nations. And for his self realization and fulfillment, the state craft is devised and structured to be operated by him.
The political rights of the individual are numerous and sometimes touch his other rights in diverse forms. They include his right to belong to or choose any political nation of his choice, his right of access to the public services and property of his country in strict equality of all persons before the law, his right to freedom of association with persons of his choice for the pursuit of any legal personal or collective objectives including political objectives; his right to participate in the government of his country. Collectively or individually by either joining political parties, voting or contesting in electoral processes to constitute the government of his country. These rights shall now be discussed in the preceding pages in details and in the light of the position of the Rule of law.
- The Right to Nationality30
The Rule of law in relation to the right to nationality demands and preserves to everyman the right to belong to his nation without an arbitrary denial of such right. Ancillary to this right is the right to change nationality at will without hindrance or arbitrary deprivation of the freedom so to do. This right was given universal relevance and recognition as a human right through the 1948 universal Declaration of human Rights (hereafter referred to as UDHR). Article 15 of which states
(1) Everyone has the right to nationality
(2) No one shall be arbitrarily deprived of his nationality
nor denied the right to change his nationality.
This right guarantees to the individual, the choice of place of residence at national level, and at international levels, the choice of nationality including the right to change the same unhindered31. To this end he may, subject to the law and general or public interests and well being, live in any territory of his nation as he may from time to time choose, and also subject as aforesaid, he may remain a citizen of his country and change nationality as he desires and chooses. 32 This right is by law¸ held sacrosanct and inviolable and any forceful hindrance of the enjoyment of this right is a negation of the rule of law. 33
Shugaba Darman v Minister of internal Affairs and others, 34 is a case in point on this right. The court in ruling on the forceful deportation of the plaintiff to Chad Republic, restored his citizenship as secured by the Rule of law as afore described, as he was under the Nigerian Law a citizen of Nigeria. 35
This right as aforesaid, according to the African Charter on human and peoples Rights, is of course circumscribed by its subjection to “restrictions enacted in law essential
for the protection of national security, law and order, public health or morality or other peoples rights and freedoms which are compatible with the other rights…”36. This subjection it must be observed made with the best of intents and purposes as it were, and especially for the ideal situation, indirectly endorses the irresponsible and reckless legislation pattern in the developing countries. Again, the use of the bogus term “national security” is risky. In the debauchery of government in the developing countries where national security simply means security of the government in power, it can become grounds to justify the violation of political rights in their countries. 37
A salient point raised under this right, is the right of asylum which guarantees, subject to the law of the refuge country, a right to seek political refuge in any country of one’s choice in the event of the fugitive facing political persecutions that justifies flight. The right was amply demonstrated in the case of Alhaji Umaru Dikko who sought and was granted asylum in Britain following the 1984 coup d’etat in Nigeria. Britain’s refusal to release him to Nigeria is a clear example of the international recognition of this right. The failed attempt to smuggle him in a wooden crate, from Britain into Nigeria was treated as a punishable offence for which the culprits were duly tried and punished. 38
The right to asylum is applicable only to those genuinely fleeing from persecutions in their home country for political and other qualified reasons and does not apply to persons wanted in their home countries for non political crimes and or from acts contrary to the purposes and principles of the united Nations. 39
- The Right to Freedom of Association / Assembly
These rights, ordinarily treated as civil liberties, are some of those rights which stable the civil and political terrains. As a piece of legal doctrine. These rights guarantee to the individual, the freedom to associate with whom so ever they choose and the right to congregate with persons for ends that are not pervasive of the law. This principle which has been touted for decades received international acclaim and recognition in the United Nations Charter and is more especially given exposition in the UDHR, Article 20 of which states:
(1) Everyone has the right to freedom of peaceful
Assembly and association
(2) No one may be compelled to belong to an association.
The ACHPR40 re echoes the sanctity of this right, but non commitally anddangerously undermines its force by the inclusion of an exception apt and broad enough to form the basis for several state abuses and transgressions of this lofty liberty, by subjecting the liberty to “necessary restrictions provided by law particularly enacted in the interest of national security.” 41 National security is a nebulous term which in most parts of the world, (especially among developing nations) can mean as much or as little as the ruling government wishes to make it; ranging from the desires of the persons in government, to “the state of their digestion” which to use the expression of Lord Denning, even the devil himself cannot know.
The clear impact of this right is that men may form themselves into associations for any lawful objectives, and assemble in pursuit there of in so far as it is not for purposes that work against the law the rights of others and the general public. By the ACHPR, man may not also be compelled to join associations other than those he is in duty bound by law to join.42 In Nigeria, as in other countries, this right is expressly extended to formation and membership of political parties and trade unions. As the Nigeria constitution of 1999 provides,
“Every person shall be entitled to assemble freely and
associate with other persons, and in particular he may
form or belong to any political party, trade union
or any other association for the protection of his interests” 43
The principal qualification for this liberty, is that it is exercised within the ambits of the law. There is no gainsaying that its exercise ought to be peaceful, objective and in consonance with the law44 as otherwise it would amount to an interference with the rights of others or the collective rights of the society. It must be noted that this right is of especial relevance to the political rights of man which forms the basis of this discourse, and so has far reaching effects on the ability of man to participate effectively in the determination and formation of the structure and policies of his polity.
- The Right to Participate in Government
“Finally, man’s personal dignity involves his right to take part in public life and to make his own contribution to the common welfare of his fellow citizens”. 45
The right to participate in one’s own state government forms the central objective of the Rule of law as it relates to political rights of man. All others such as those discussed here above are means that lead up to the end of participation. Without freedoms of movement, assembly and association, participation is certainly impossible. Conversely, the availability of these rights and freedoms is an indication of a free and democratic society where the willing can participate in their government and contribute to the lot of their polity.
- Nature of the Right of Participation.
Individual participation in government occurs in a number of ways. These include: contesting and voting at elections to choose a government at all tiers, and at referendums to determine any issues raised for public opinion, the making and remaking of the constitution, access to public property, and services in strict equality of all persons before the law.
The rule of law holds these rights of the individual, as a sacrosanct set of rights which should not be derogated from nor inhibited. Both the UDHR and ACHPR expressly similarly make such provisions.46 They are rights which according to IWE should not be denied to any citizen who legitimately qualifies to exercise them.47 The role of the state, under the rule of law, is to ensure that this right is not jeopardized, but rather enhanced and promoted.48.
This part of this paper shall consider the political rights of contesting and voting at elections and referendums, the right to public property and right to public service.
- The Right to Vote and Contest at Elections.
The rule of law secures to the individual, the right to participate in the election or choosing of those who will lead his polity. The right to vote is exercisable in a variety of ways. It is not completely limited to the three methods adopted herein as it is exercised in countless other ways. The three major ways aforesaid include:
(1) Voting at elections into the legislative and executive offices of government,
(2) Voting at election of representatives into constitution drafting committees to express and represent constituent views and interests at the committees.
(3) Voting at referendums to express opinions on government policies or major political decisions that may from time to time be subjected to public decision or plebiscites.
The first of the above has already been elaborately discussed earlier on. It is at least, the process of expressing individual opinions with a view to electing constituent representatives organs on the basis of majority opinion, to the state administrative organs.
By the second method, man in conjunction with his folks, elects a representative, to represent their opinions and views at the making of the grand and supreme law of his polity. While the third is a political expression of direct participation in the polity’s decision making as man directly influences by his choice, the direction of state policy.
This right is considered inherent in man by virtue of his membership of his polity. It is a right he possesses once he reaches the approved age-bracket entitled to exercise that right. Generally, it is universally conceded that the right to vote (franchise), is acquired at the age of 18 (now known as the universal adult suffrage) this means that a citizen’s only qualifications for the exercise of these rights are
(i) That he is a human being with full capacity
(ii) That he is a citizen
(iii) That he has attained the age of 18 years
(iv) That he has registered to vote in accordance with the electoral law or process.
For the qualification of humanity, much needs not be said other than that for this purpose, it is only necessary that the person in issue is a human being imbued with the attributes of humanity and adjudged by law and fact to be part of the run of humanity. The only exception of course is where he is insane and therefore incapable of making a choice between contestants; For most cases he needs to be a living human being for other purposes such as election by Electoral College, and voting by other forms of representation, even a corporate being such as a clan, a political constituency is a qualified voter or “person” in the eyes of the law.
For the purpose of citizenship, he needs only meet the terms of citizenship as provided under chapter 3 of the 1999 constitution of Nigeria.
On the attainment of the age of 18 years, the law only requires that a voter or claimant of the right be a person that has attained a certain level of socio-physical cum mental development as to enable him form opinions and weigh matters for judgment, by himself, having presumably understood and assessed the situation before him. A person below the age of 18 is considered a young person incapable of such capacity and gravity of reasoning, while 18 is considered as the age of reason. Hence the fixation of the age of franchise at 18 years.
In Cheranci v Cheranci,49 the constitutionality of the age limitation was contested as a defense against a charge of incitement of an underage young person to participate in politics contrary to the children and young persons Act of 1958.50 The court held that such limitation was reasonably justified as it was in the interest of public morality to preclude juveniles from political activities generally. Section 45 of the CFRN 1999 therefore confers the right to participate in politics or Associations to all, subject to such limitation. Though decided under the 1960 constitution, there is no doubt that the same view for the same reasons will apply to the provisions of the 1999 constitution as the provisions and spirit of both constitutional provisions are ipso facto the same.51
For the purpose of conformity with the law, including electoral laws, it is trite that a citizen being qualified by age, must also have taken any necessary steps prescribed by law, for the purpose of voting52. For instance, he must have indicated his intention to participate in the process, by registering as a voter under the necessary electoral laws, to be adjudged by the law as being qualified and possessed of a right to vote worthy of legal protection, preservation and enforcement.53
It goes without saying therefore that where a claimant of the right to vote has met all these three requirements, his right to vote is as fundamental as any other of his inherent rights grouped as human right. The denial of such right will be frowned upon by the law and adjudged wrongful disenfranchisement. This position of the law was amply demonstrated inAshby v White.54 In that case, the plaintiff was disenfranchised by the Mayor and the Returning Officer on the argument that he was not quite a settled inhabitant. The disenfranchisement was held by the court to be a wrongful denial of the right to vote, and damages awarded to the plaintiff for the wrongful denial of franchise.
The right to contest at elections which refers to the right to be voted for is to a large extent like the right to vote. The essential difference is that unlike the right to vote, the right to be voted for carries a lot more qualifications or requirements.55 for instance, he should attain the relevant age for the office, which varies according to office, he should not be an undischarged bankrupt or been convicted for a fraud related offence in ten years preceding the contest, He must have paid tax for three consecutive years preceding the contest .etc
It must be noted that the right to vote is the singularly most important political right of man in modern society. Often referred to as direct participation in politics or governance of one’s State; it affords the citizens opportunity for direct participation in the process of administration of his polity. This direct participatory right must therefore not be denied any citizen on the basis of sex, race, colour, religion or political opinion. 56 The importance of this right which is itself a part of the individual political rights of man transcends and rises above all levels of frivolity as it is the direct link of the citizen with the object of formation of society into a super structural whole to be administered among the donors for the common good of all. The importance of the right to vote was underscored by Winston Churchill when he observed that
“At the bottom of all the tributes paid to Democracy is the little man, walking into the little booth, with a little pencil, making a little cross, on a little bit of paper no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of that point.”
While the primacy of the right is aptly captured by Professor Claude Ake, when he argued that although development is important to a State, it is first the people’s right to reach that conclusion. Said he;
(People argue) that development is prior to democracy: people must be educated and fed before they can appreciate democracy. However this claim is as seductive as it is misguided. Even if it were true that democracy is competitive with development the prior issue is not whether it is more important to eat well than vote, but who decides which is more important.57
IMPEDIMENTS TO THE EXERCISE OF INDIVIDUAL POLITICAL RIGHTS IN NIGERIA
The exercise of individual political rights is one of the most outstanding sore points in the development of private law in the modern Nigerian State and its society. While we can not with any degree of effectiveness discuss all of these impediments to the exercise of individual political rights, attention will be given to four major impediments. These include:
- Non justiciability of chapter 2 of the Nigerian Constitution
- Executive lawlessness
- Judicial passivity
- Non Justiciability of Chapter 2 of the Nigerian Constitution
Whereas the political rights of the individual is in Nigeria constitutionally guaranteed, through the provisions of chapter 4 of the 1999 constitution. It is important to note that many a political right and the duty to provide the enabling environment for its exercise, are contained in S.14 and 15 of the constitution. These provision proclaim the responsibilities of the government to the people of Nigeria, as well as the political objectives of the Nigerian State. For instance, while S.14 proclaims that the Nigerian State shall be a state based on the principles of democracy and social justice, wherein sovereignty belongs to the people from whom government through the constitution derives all its powers and authority, it declares the security and welfare of the people as the primary purpose of government, and concludes;
“The participation of the people in their
Government shall be ensured in accordance
with the provisions of the constitution”
Section 15 in charging the government to promote national integration, imposes on government the duty of inter alia ensuring free mobility of the people through out the Federation, secure all residence rights for citizens in all parts of the country and encourage the free mixture of Nigerians from different ethnic backgrounds.
Clearly the raison detre for the section and objective of participation is to ensure as provided in s.15 (4) that
The state shall foster a feeling of belonging and of
Involvement among the various peoples of the
Federation, to the end that loyalty to the nation
shall override sectional loyalty.
It is clear that integration and expression are the main philosophy behind participatory right in Nigeria. Unfortunately it can hardly be said that the idea has succeeded, since it is evident that loyalty to sections surpass people’s loyalty to the federation as an entity, and the will of the people has almost always been subverted by the whims of the political elite in electoral processes.
The major set back here is the fact that the above fundamental provisions are contained in chapter 2 of the constitution which has been characterized as non justiciable provisions designed to remind and or direct the government on the direction to which state policies should be aimed and not an instrument guaranteeing or conferring right of action to the people. This means that these guarantees of enabling environment for exercise of individual political rights are directed at functionaries of state. Events and experience so far have shown that such Government Functionaries lack the political will to adhere to these lofty advices, to the consequential devaluation of individual political rights in Nigeria.
The declaration of rights without the means for meeting them is an exercise in futility. This is because the security of every right lies in the possessor’s ability to access, invoke and enforce them against violators. Beautifully couched provisions adorning statutory pages are therefore utterly useless in the absence of the economic means for invoking them.58
As Professor Claude Ake has pointedly observed in this respect
If a Bill of right is to make sense it must include among others, right to work and to a living wage, a right to shelter, to health, to education.
That is the least we can strive for if we are ever going to have a society which realizes basic human rights.” 59
Majority of Nigerians are said to live far below the contemporary poverty line with an income by far incapable of securing their individual wants let alone supporting their dependants.
The minimum wage in Nigeria presently stands at N7,000.00 (Seven thousand naira) a sum grossly incapable of guaranteeing single meal per day for a month for an individual. The cost of litigation in Nigeria, especially following the wide spreading reviews of the Rules of Civil Procedure of High Courts is not less than N10,000.00 (Ten thousand naira) per order sought.”60 this means that for majority of Nigerians, civil action to enforce their rights is far beyond the last option. As Dr Akinnola Aguda fittingly sums up the situation.
To think that a very poor person can have a meaningful day in court in the pursuit of his right, real or imaginary is to live in a fool’s paradise.” 61
Poverty which is quite grinding and widespread in Nigeria is thus a major impediment to the realization of individual political rights as only very few Nigerians can afford to seek judicial redress to enforce their breached rights of political participation.
- EXECUTIVE LAWLESSNESS
The effectiveness of bills of right as political articles of faith between a state and its citizens, depends very much on the effectiveness and commitment with which the state itself, especially its executive branch, devotes itself to the realization of the lofty political goals of liberty that such bills guarantee.” 62 When a government sets itself against the spirit of a bill of right, such bill practically becomes a dead letter as it will be observed more in breach, than in performance or fulfillment.
The Nigerian state has, to be candid, shown little interest if not outright hostility towards individual political rights and invocation of judicial powers towards their realization. From Shugaba v ministry of internal Affairs.63 toArarume v INEC and others,64
from Shitta bey v Federal Public Service Commission.65 to Atiku Abubakar v INEC and others, 66 the Nigerian state continues to exhibit palpable contempt for the clear and unmistakable judgments of courts of law, a cardinal precept of the Rule of law in regard to individual political rights.
No time is the picture clearer than in the recent avalanche of cases in which the Federal Government, the Peoples Democratic Party (PDP) and the Independent National Electoral Commission (INEC) continue to disrespect clear injunctions and subsisting judgments of the courts of the land.
In these cases, the candidature and therefore political rights of Senator Ifeanyichukwu Ararume, Honourable Rotimi Amechi67 and the Vice President Abubakar Atiku’s continued to be brazenly trampled upon by the state and its agencies in reprehensible contempt of court decisions including that of the Supreme Court of Nigeria,68 to the chagrin of various stakeholders, the general populace,69 and to the frustration of law abiding citizens who look up to the Courts as protectors of all rights, independent arbiters and custodians of the law. Are we to deduce from the conduct of thecontemneurs that the citizens in the above listed cases have no rights acquired by the political process from which they participated and emerged as winners and candidates of their respective constituencies? Do the rights and powers of the parties completely obliterate that of the members? There is no doubt that these conducts devalue the political rights of citizens and denigrate civil reliance on the courts as the arbiter of conflicts in the polis and by extension, reliance upon the rule of law.
- Judicial Passivism:
While Executive lawlessness cannot be easily controlled, the power of the courts to declare and pronounce the Rule of law is one, which cannot be stopped. By constantly and courageously giving clear and unambiguous judgments, the courts will soon make a lawless government so discredited that it will be forced to improve on its deficiency to the Rule of law.
Decisions given by many a court, leave the observer wondering if the court has decided the case or called for a re-litigation of the case by tactically declining to make binding pronouncements that clearly end the dispute. 70
In times like these, a nation needs real judges, tall minds, sun crowned men of courage who are prepared to keep the judicial creed “to do justice though the heavens fall” and adjudicate according to their oath of office. Men who will not be cowed by the awesomeness of political office and pecuniary promises of gratifications.
The Supreme Court in recent times has shown great glimmers of hope for direction, and the judiciary has similarly shown clear move towards protecting its integrity, by weeding off chaffs and bad eggs from its noble stable.71 much more and constancy of this determination will be required to save a nation at cross roads like Nigeria and it is hoped that the courts will do just that. Nothing less than the above and proactive adjudication will be required of the judiciary if it is to assist as an independent and impartial institution, in the preservation of individual political rights as envisaged and guaranteed by the Rule of law.
A right is a right, an interest of legal nature, recognized by law as vested in a bearer who is entitled to the protection of the law, it is either a concrete possession as above, or a dead letter on the page of a statute if there are no guarantees for its enjoyment.
The rule of law as an instrument of state, exists to stabilize inequalities in society and foster a protected regime wherein all citizens irrespective of their stature and status can live side by side with their fellow citizens without fear or dread of the weakness of their circumstances.
Its chief purpose is to limit the exercise of power in society, especially by the state, in order to protect and preserve the liberty of the individual citizen. In protecting all individuals, the Rule of law also protects the individual functionaries of state who in due course, will also return to mere citizenship. Thus like the slogan of the musketeers, it preserves “one for all and all for one”.
The rights of man acquired and exercised within the context of his society are an integral part of the protected domain of the Rule of law, and in the true spirit of that rule, is the yardstick for measuring the liberty, fraternity and egalitarianism of every society.
Nigeria like all civilized nations, must obey the commandment of the rule of law in this respect and in ensuring the liberty of its individual citizen, ensure the liberty and sustainable development of its state.
No time is more auspicious for this realization than now, when the nation is at the threshold of transformation. Transform it must to good or evil, but its people and institutions must by their conduct towards respect for the Rule of law, make a choice one only hopes that such will be an informed and progressive choice.
- A.V. Dicey:Introduction to the study of the Law of the constitution
Macmillan Press. (10th Ed) 1985.
- Aristotle (BC 384-322) in Politics 111,16 Translated by Jowett ed. Davis.
Available online athttp://books.mirror.org/gb.aristotle.html/politics
- Cited in Maitland:Constitutional History of England 1908 p. 100-101; see also Mcllivan: Constitutionalism Ancient And Modern. Chapter 4; and the Report of the (British) commission on ministers powers Cmd 4060, 1932, pp:71-72. Also See generally also Allan, Thompson and Walsh Cases And Materials On
Constitutional and Administrative Law 1990. pp:104 -105.
- The Magna Carta was signed into law in 1215
- Article 30 of the Magna Carta.
- See J Locke: Two Treatise on Civil Government assessible online athttp://books.mirror.org/gb.locke.html/government
- A.V. Dicey. Op. cit.
- Ibid P.188.
- Sir Ivor Jennings: The Law and the Constitution (5th ed) 1959.
- R.F.V. Heuston “Rule of Law”Essays in constitutional law (2nd ed) 1964
- K.C. Davis ‘ Discretionary Justice’ 1971.
- See Sir Ivor Jennings. Op. Cit. P.55; R. F. V. Heuston: Op. cit. p.50
- K. C. Davis: Op. cit. P.42. See also R. v Inland R.C. ex Parte Rossminster
- See for eg. CFRN 1999, Cap 4; the African Charter on Human and Peoples Right, 1981; the UDHR; The International Covenant on Civil and Political Rights (ICCPR) 1966, the International Covenant on social cultural and Economic Rights (ICESCR) 1966, etc.
- Dicey, A.V. Op cit. p. 194
- Where over 6 million Jews were exterminated in Hitler’s bid to erase the Jewish race
- In the Jewish case in Nazi Germany as well as Apartheid South Africa, Idi Amin’s Uganda and Kuwait under Saddam Hussein, neighboring nations and the world community were forced to intervene either humanitarianly or militarily as in the last case.
- Article 1 (3)and 55 (c) see also Article 55. UDHR.
- See note 14
- See H. Wadlock. Human Rights in contemporary International law and the significance of the European convention P.15.
- See U.O. Umozurike; “the present state of Human Rights in Africa”
The Calabar Law Journal vol 1. No 1 1986 PP 65 – 66. See also Ian Brownlie Principles of Public International Law (3rd ed) ELBS 1979
- A good example is the civil right to equality and equal treatment and the
Economic right of equal pay for equal work.
- B. A. Garner (Ed.):Blacks Law Dictionary (8th edition) 2004, Thompsons, P.1348.
- This right is exercised in equality with other members of the society with whom he forms the polity.
- H. S. Commanger (Ed)documents America-History (1948) P.103.
- N. S. S. Iwe:History and contents of Human Rights etc Peter Lang publishers
New York 1986 p. 365
- See for e.g. S.14 (a) (b) CFRN 1979 see also Anifowose, R.:State, Society and Nation. In Anifowose and Enemuo (Eds.)Elements of Politics 1999, Malthouse Press. 85-105 for a detailed discourse.
- Aristotle –Politics. 1, 2 (1253).
- See UDHR 1948 Art.21 (1) see alsoS.14 (2) (c ) CFRN 1999.
- See Brownlie. I: Op. cit. pp: 554 – 559.
- Ibid, see also the International covenant on civil and political rights 1966. Article 12.
- See Article 12 (2) of the African Charter on Human and People’s Rights which
deals with the right in greater detail, by treating them individually in subsections
(1) to (5) of the Article. See also, CFRN 1979, S. 15 (3) (a) and (b). Which
addresses this right on national scale.
- (1981) 2 NCLR. 459.
- Compare however to the 1987 case of Dr Patrick Wilmot where the victim was deported to Jamaica without notice, having just been stopped in traffic and whisked away to the airport on “orders from above” under General I.B. Babangida. for holding opinions considered “radically” inconsistent with those of the Military operators of the statecraft. See also Art. 9 UDHR.
- See ACHPR. Art. 12 (2)
- See the above mentioned case of Dr. Patrick Wilmot. In 1993 the Nigerian Military government also annulled a validly and duly held presidential election
And threw the nation into political crises in purported National interest. Robert Mugabe of Zimbawe is using the same reason presently to attack opposition groups campaigning for progressive change in Zimbabwe.
- Every other formal attempt by the Nigerian governments to secure the extradition
of the refugee proved abortive, notwithstanding the fact that in Britain, asylum is not a right, but a privilege subject to the qualified executive discretion of the Secretary of State for the Home Department. For further reading on asylum, see Stone, R.Textbook on Civil Liberties and Human Rights (3rd ed.)2000 Blackstone Press, PP. 350-353; and Eze, O. C.: Human Rights in Africa. 1984, NIALS and Macmillan, 177-178.
- See Article 14 (2) UDHR. Nazi War criminals and fomenters and suspects of
genocide have been extradited to face trial in the necessary countries. A recent
reminder is Libyans indicted in the Lockerbie bombing case and the crises it generated between Libya and the UN. Libya eventually had to release the men
to be tried under international law.
- See ACHPR Art. 10 & 11. respectively.
- The 1993 annulment of a presidential election in Nigeria in “National interest” is
a case in point. See, also the examples of presidents Mobutu Sese Seko and other such self perpetuating African heads of state.
- See Article 10 (2) ACHPR. Exceptional duties here include the duties listed under Article 29, duties towards his family, and those to his nation’s social and security interests and integrity, especially when they are threatened by internal insurrection or external aggression. Cf s.24 CFRN 1999.
- S. 40 CFRN 1999. In Adewale and others v. Jakande and others, (1981) 1 NCLR 262 abolition of fee paying schools was adjudged a breach of parental and childrens right to associate where they choose eg private fee paying schools instead of public schools. See generally, Akande J.O.:Introduction to the NigerianConstitution. 1982 S&M London, PP 37-38.
- See the U.S. case of Feiner v New York,  340 US. 315. but cf. Edwards v South Carolina 372 U.S. 229 (1963) ;see also Oluyode, P. A. O.Constitutional Law in Nigeria 1992, Evans. P. 165
- Pope John xxiii P.t. parr 26 (A.A.S. Lv, 1963, p. 263) cited in Iwe, N. S. S.: Op. cit. p. 365
- See Article 21 (1) and (2) UDHR and Article 13 ACHPR. See also s. 14(2) CFRN 1999.
- See Iwe NSS. History and contents of Human Right etc. p. 370.
- See. Article 3 of ICCPR
- (1960) NRNLR 24
- See S. 35 of the children and young persons Act Cap 35 LFN. 1958.
- This is especially so considering the vulnerability of the under aged to the political high risk activities such as thuggery and other crimes that pervade Nigerian partisan politics in current times.
- For this purpose see the various electoral laws of Nigeria ranging from the
FEDECO DECREE of 1978, through the NEC Decree1987, the NECON Decree of 1996 (No. 3) down to the current INEC Act. (Cap. 15 LFN 2004) as amended in 2006, the relevant sections of which so provides for registration as condition alongside other conditions of voting.
- This is of course only a part of such requirements which includes citizenship and
a lot more. For details, see for example, s.13 of the current INEC Act 20066
- (1703) 2 Ld. Raym. 938 also reported in O’Hood Philips Leading Cases &
material in constitutional and Administrative Law. P. 203-208.
- Phese include conditions like age, education, criminal record and party membership as there is no provision for independent candidature..
- See S. 42 (1) and (2). CFRN 1999. See also Art. 2 of ACHPR 1981 now CAP A9 LFN 2004.
- See Ake. C; (1991) cited in Idasa:Power to the People; Reflections on Democracy. 1997 Idasa publication, Cape Town.
- Aduba, J.N: The impact of poverty on the realization of fundamental human right in Nigeria In Osinbajo and Kalu (Eds.)Democracy and the Law. 1991 FMJ Lagos, Pp. 200-220.
- Ake, C: The African context of human rights. A paper presented at the International Conference on Human Rights in African context, held at Port-Harcourt on June9-11 1987.
- See generally the 2004 High Court Rules of Lagos State and Order 49 and the 1st – 3rd schedules to the Rivers State equivalent of 2006, dealing with the costs of filings court processes.
- Aguda, A.T.: “A new perspectives in law and justice in Nigeria” natural institute for policy and strategic studies, kuru distinguished lecture series October 25 1985, P.8.
- this is particularly so with the third world countries like Nigeria where the potency of the vote is lacking and the political institutions of state poorly operated.
- (1982) 3 NCLR 912 at
- Unreported decision of the court of Appeal in FHC/ABJ/CS/9/07 delivered on 16/02/07. This verdict has now been upheld by the Supreme Court on Monday the 12th of April, 2007.
- (1981) 1. S.C. 40.
- See the Guardian of Tuesday 17th April, 2007, also available online athttp://www.guardiannewsngr,com/news/article02/170407for a report of the Supreme Courts judgment reversing the ruling of the Court of Appeals on the legality of INEC’s disqualification of candidates, including the Appellant from contesting the 2007 Presidential elections.
- In Chibuike Rotimi Amechi v. INEC and others. Unreported decision of the Federal High Court in suit No FHC/ABJ/CS/9/07; delivered by Justice B.F.M Nyako on 15/03/07. The ruling is reported in full in the BEAM Newspaper of 20 22/03/07 at PP 2 and 5, the learned judge set aside the substitution of the plaintiff’s name with that of Barrister Celestine Omehia, but the party (PDP) continued to campaign for, and fielded the later for the election in disobedience of the court ruling and in the absence of an appellate courts over-ruling order. Same applies to Ngige, Peter Obi, and Maduabum of Anambra state.
- Ararume’s case Op. Cit. note 58 was finally confirmed by the Supreme Court, but the party in utter disrespect, has purportedly expelled the plaintiff for enforcing his political right in court against the offending party.
- The Nigerian Bar Association among others have condemned this conduct repeatedly, see. Vanguard, 04/04/07 at P. 5.
- In The Amechi case above for instance, the learned trial judge set aside the substitution of the Claimant’s name but failed to make a definite pronouncement to the effect that the claimant is therefore the valid candidate for the election. This necessitated the Claimant’s appeal and enabled the defendants to proceed into the election with the “invalid” candidate. Similar judgments in Ekiti, Oyo and Plateau states, similarly helped to precipitate the crises in those states.
- The retirement and dismissal of judges involved in infamous political flirtations, notable among whom are Wilson Egbo Egbo, Shellong and Kalu Amah in the recent past are clear indications of this resolve.