Government · Lesson 5

Rule of law, separation of powers & human rights

JAMBWAECNECO

What the syllabus asks

JAMB: Principles of democratic government: rule of law; citizenship: meaning, types, rights and duties, acquisition and loss

WAEC: Rule of law: meaning, features, limitations; fundamental human rights: meaning, protection, limitations; citizenship: meaning, acquisition, loss, rights, duties and obligations of citizens

NECO: Rule of law: meaning, features, limitations; fundamental human rights: meaning, protection, limitations; citizenship: meaning, acquisition, loss, rights, duties and obligations of citizens

What you will learn

Define the rule of law and explain Dicey’s principles.
Explain the limitations to the rule of law, with Nigerian examples.
Define fundamental human rights and list those in Chapter IV of the 1999 Constitution.
Explain how rights are protected and why they are limited.
Define citizenship and explain its acquisition and loss under Chapter III.
State the rights, duties and obligations of citizens.

Key points

Rule of law: law is supreme, equal for all; opposite of arbitrary rule.
Dicey (1885): supremacy of law, equality before the law, rights secured by the courts.
Features: fair hearing, independent judiciary, no retroactive criminal law, legality of government action.
Limitations: immunity (s.308), diplomatic immunity, emergencies, military rule, poverty, ignorance, corruption, disobedience of court orders.
Fundamental rights: basic rights of all humans; UDHR 10 December 1948; African Charter.
Chapter IV (ss.33–44): life, dignity, liberty, fair hearing, privacy, religion, expression, assembly, movement, non-discrimination, property.
s.45 allows restrictions for defence, public safety, order, morality, health and others’ rights; s.46 enforcement in a High Court.
Chapter II objectives are generally non-justiciable (s.6(6)(c)).
Citizenship: birth (s.25), registration (s.26), naturalisation (s.27, 15 years’ residence).
Loss: renunciation (s.29), deprivation (s.30, non-birth citizens), forfeiture for dual nationality by non-birth citizens (s.28).
Duties (s.24): obey the Constitution, defend Nigeria, respect others, contribute, assist law and order, pay tax.

Start here: Meaning of the rule of law

Picture two schools. In the first, the principal punishes any student he dislikes, whenever he likes, with no rule broken and no hearing. In the second, there is a written code; punishment follows only after a proven breach; and even the head boy and the principal’s own children obey the same code. The second school lives under the rule of law.

The rule of law is the principle that the law is supreme in a state, that government is conducted according to law and not the arbitrary will of rulers, and that all persons, including government officials, are equal before the law.

The opposite is arbitrary rule or "rule of man": power used according to the personal wishes of the ruler.

Dicey’s three principles

The British jurist A. V. Dicey, in Introduction to the Study of the Law of the Constitution (1885), gave the classic explanation:

Supremacy of the law: no one can be punished except for a distinct breach of law established in the ordinary courts. Regular law, not arbitrary power, governs.
Equality before the law: every person, whatever his rank or position, is subject to the same law and the same courts.
Rights rest on court decisions (the "judge-made constitution"): in Britain, citizens’ rights came from decisions of the ordinary courts in particular cases. In countries with written constitutions such as Nigeria, rights are instead written into the constitution and protected by the courts.

Worked example 5.1

A police officer detains a trader for a week without charge "because the governor said so". Which principles are violated?

Supremacy of law: the detention is based on personal orders, not on a proven breach of law.
Fair hearing/personal liberty: the trader has not been brought before a court.
Also, under section 35(4)–(5) of the 1999 Constitution, a person arrested on suspicion must be brought before a court within a reasonable time, which is one day where a court is within 40 km, otherwise two days or such longer period as the court considers reasonable.

Arbitrary detention breaches the rule of law

Try it yourself. Who wrote the classic work on the rule of law in 1885?

Show solution

A. V. Dicey.

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Practice questions

1. The rule of law was popularised by

A. V. Dicey
Montesquieu
Locke
Hobbes

Show answer

A: A. V. Dicey
Introduction to the Study of the Law of the Constitution, 1885.

2. Which is a principle of the rule of law?

Supremacy of the executive
Retroactive criminal laws
Detention without trial
Equality before the law

Show answer

D: Equality before the law
Dicey: supremacy, equality, rights secured by courts.

3. Which is a limitation to the rule of law in Nigeria?

Independent courts
Equality before the law
Immunity of the President and Governors under section 308
Fair hearing

Show answer

C: Immunity of the President and Governors under section 308
Immunity from civil and criminal proceedings while in office.

4. Fundamental human rights are found in Chapter

VII
IV of the 1999 Constitution
II
VI

Show answer

B: IV of the 1999 Constitution
Sections 33–46.

5. The right to life is guaranteed by section

Show answer

A: 33
s.34 dignity; s.36 fair hearing; s.39 expression.

Key words

Rule of law: The principle that the law, not the arbitrary will of rulers, governs the state, and that all persons are equal before it.
Equality before the law: The principle that the same law applies to everyone, rulers and ruled alike.
Arbitrary rule: Government by personal will without legal limits.
Immunity: Legal protection from being sued or prosecuted, e.g. for the President during his tenure.
Fundamental human rights: Basic rights and freedoms that belong to every person because they are human.
Justiciable: Able to be enforced in a court of law.
Derogation: A lawful, temporary suspension or limitation of a right, e.g. during an emergency.
Habeas corpus: A court order requiring a detained person to be produced before the court, to test whether the detention is lawful.
Citizen: A full member of a state, with rights and duties defined by its law.
Alien: A person who is not a citizen of the state in which he lives.
Naturalisation: Acquisition of citizenship by a foreigner after meeting residence and other conditions.
Registration: Acquisition of citizenship by persons with a special link, e.g. marriage to a citizen.

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