A Speech presented by His Excellency Senator Anyim Pius Anyim, President of the Senate,
federal Republic of Nigeria, at the opening Ceremony of the British-Nigeria Law Week on April
The Rule of Law simply means that everything in society must be according to Law. This being a British-Nigeria Law week, the name of A.V. Dicey, the English Jurist, will undoubtedly be mentioned many times over in the coming days. Dicey, it was, who seminally expounded the rule of law in his nineteenth century publication, Introduction to the Study of the Law of the Constitution.
As a settled doctrine, the rule of law forbids the exercise of arbitrary power in governance and enables independent courts of Law to strike down any abuse of discretionary power. It recognizes the right to take a dispute with government or its officials, or with any citizen, before the ordinary courts. As far as offences are concerned, the rule of law demands that no person be punished for an offence except that offence was legally defined at the time the acts constituting it were carried out.
An essential element of the rule of law is that legality must precede activity On this basis, military rule is fundamentally flawed. All military regimes in Nigeria have emanated from an unlawful over throw of a previous government. The Legal instruments purporting to legitimise the regimes have always been put in place after the regimes have come into being.
And while the proponents of military rule sometimes point to the issuance of decrees and edicts as some semblance of deference to the rule of law, it is obvious that in content many of the military laws were antithetical to the concept. Ouster clauses, retroactivity, and other affronts to fundamental rights have been regular features of military decrees and edicts in Nigeria.
Fifty of the decrees were promulgated between 15th January 1966 and 30th September 1979 and 14 of those between 1st January 1984 and 15th May, 1985, provided that constitutional guarantees of fundamental rights would not be applicable. They further provided that the courts could not inquire whether a fundamental right had been or would be contravened by anything done or purported to be under the decrees. Similarly of the 627 decrees enacted between 16th January 1966 and 28th September 1979, 295 (or nearly 50%) had retrospective effect and 52 created offence.
As most significant negation of the rule of law arose following the 1970 decision in Lakanmi V. Attorney-General where the Supreme Court ruled a decree invalid on the ground that the decree amounted to an exercise of judicial power. Immediately thereafter, the military regime enacted the Supremacy decree No.28 of 1970, stating the Legislative supremacy of the military government and the unquestionability, in court or otherwise, of decrees and edict and legislative instruments issued under them.
Thus was to set the tone under the military for the progressive erosion of the critical role of courts as the guarantors of the rule of law and, ultimately, for the flagrant disobedience of court orders by military governments in later years.
With democracy in Nigeria, has come a restoration of the rule of law in all its ramifications.
Whilst we continue a seeming preoccupation with the search for tangible democratic dividends, the return to the rule of law remains largely under-appreciated; yet it is easily the most important of the benefits derivable from democracy. Equality, Justice and Liberty, the conditions precedent to sustainable nation building, can be truly enthroned only upon the corpus of the rule of law.
Therefore one of the biggest challenges facing our new democracy is building a country that is fair to all its citizens. Nigerians must feel and know that they are valued members of society and that they have rights that respect human dignity, promote human development, foster human equality and advance human freedom.
It is for these reasons and the realization that our Democracy Will be strengthened and entrenched when society is fully aware of its fundamental human rights and freedoms and consciously lays claims to these, that the Senate in collaboration with the national Human Rights Commission and the Legal Resources Consortium a Non-governmental organisation, convened in August last year, the first ever Parliamentary Hearing on the state of the Promotion and Protection of Human Rights in Nigeria. That was the first time in the history of Nigeria that Government Ministers, security agencies including Service Chiefs of the Armed forces, representatives of Civil Society in general and other role players will meet under one roof to audit the human rights situation in our country with a view to identifying as well as agree on what should be contained in a national Action Plan for the Promotion and Protection of Human Rights in Nigeria.
The 1999 Constitution attempts to entrench the rule of law. It defines and delimits the powers of the three arms of government, provides guarantees of fundamental human rights and gives the courts powers to determine all disputes. It also provides equal access to the courts, and forbids ouster of the courts’ jurisdiction as well as the creation of criminal offences with retrospective effect. Importantly, the Constitution forbids the governance of Nigeria or taking control of Nigerian government except in accordance with the constitution. The Constitution declares itself supreme and any law that is inconsistent with its provisions is void to the extent of the inconsistency.
Admittedly the Constitution has been vilified in certain quarters for its alleged inability to sufficiently address the vexed question of an appropriate political construct for a multi-ethnic and multi-religious nation. There is however no doubt that, until amended or replaced, the 1999 Constitution is the grundnorm of our democracy and the legality of all laws and social activity in our polity must be wrung there from. Accordingly, even the amendment of the Constitution or its replacement must be in accordance with the Constitution’s provisions. To do otherwise would be to rail against the rule of law and, in effect, to formulate an open invitation to anarchy.
This is why the National Assembly has consciously chosen a participatory, consultative and inclusive process in responding to the debates arising out of the 1999 Constitution. We have taken the debate to our constituencies and I have no doubt that at the end of this exercise, we shall come up with a constitution that will affirm the equal worth of all our people regardless of their ethnic group, gender, religious affiliation or any other distinction. This includes being pro-active in addressing the real and perceived imbalances of the past.
In addition to bare Constitutional provisions, our casebooks are replete with practical instances of the rule of law prevailing under democratic governance. In Makarfi v. Ume Ezeoke & ors. the Court upheld its powers to adjucate even in matters touted as internal affairs of a Legislative House so long as there was an apparent breach of the Litigant’s fundamental rights. In Shugaba Darman v. Ministry of internal Affairs’ the court set aside the wrong exercise of the Executive power of deportation against a Citizen.
In Attorney General of Bendel v. Attorney General of the Federation, the Supreme Court set aside an appropriation Act which had already been assented to by the President, on the ground that it had not been passed in the manner required by the Constitution. In Tony Momoh v Senate, the court held that the Legislature could not exceed its powers under the Constitution to summon persons to appear before it. And in Sofekun v. Akinyemis the Supreme Court emphasized that neither the Executive nor the Legislature could usurp the constitutionally guaranteed jurisdiction and authority of the courts.
Each of the cases referred to above is a veritable locus classics in its own right. It is evident however from their citations that they were all instituted and decided in the first two years, or so, of the second republic which came into being in October 1979. There does not seem to have been the same level of recourse to judicial process in the current republic notwithstanding that there has been a plethora of notable constitutional disputes begging for judicial resolution, Cases such as Peter John Umah v. The Governor of Akwa Ibom State, in which the court ruled as unconstitutional the State Governor), have been more the exception than the norm. That is a Pity not only for the development of our jurisprudence but also for the reinforcement of the rule of law in our polity. In the premises, one cannot but wait expectantly for the decision of the Supreme Court in the “on-shore-off-shore” case recently instituted by the Federal government against all the States of the Federation.
A word of caution is proper before I conclude. It must not be taken for granted that the mere emergence of a democratic regime is by itself a sufficient guarantee of observance of the rule of law at all times. By the very nature of man, there will always be a propensity for arbitrariness and abuse of power, whatever the type of regime. Democracy only makes easier, but does not obviate, the task of keeping those tendencies in check. The rule of Law is therefore a concept that must be upheld, jealously guarded and continually strengthened by all and sundry, from the proverbial man in the street to the Senate President and right up to the number one citizen. It is the only way in which we can ensure that the dark days of autocracy in Nigeria remain banished to the Past, forever.
I have had the opportunity of reading through the programme of the British-Nigerian Law Week. I am satisfied and indeed commend the British council and its partners for identifying most of the many issues our country is presently grappling with Legal and Judicial Reform, Privatisation, Investment, Crime and Corruption have continued to dominate discussions in government and civil society, The National Assembly will very much appreciate receiving a report of your deliberations.
I would especially like to extend a warm welcome to the international participants from the United Kingdom, South Africa and Ghana. I hope you will find time to enjoy the warmth and hospitality that is traditionally the hallmark of our people.
I now have the pleasure of declaring open the British-Nigerian Law week and I wish you all fruitful deliberations.