(a) Explain the concept of the Rule of law.
(b) What are the problems associated with the application of the concept?
Explanation
(a) The Rule of Law is defined as the predominance and supremacy of law as enunciated by the constitution. The law is supreme over the political leaders in government and the people making up the system as well. Everybody in a defined political system should be subject to the laws of the land. Professor A.V. Dicey, in his book, "Introduction to the law of the Constitution," argued that the political leaders entrusted with the governance of the country should do so in line with the agreed laws of the land. They should see the laws as the number one important issue in a country and must see the need to respect and abide by every provision of the constitution. Failure of such governments to respect the provisions of the constitution may result in an arbitrary government. In addition, Dicey's book also stressed the need for equality before the law, irrespective of one's social, economic and political standing. He also stated that no individual should be punished without being given a fair trial in the law courts. Similarly, the rights of individuals should not be denied them. Every government should guarantee such rights to the citizens.
(b) The following are the problems associated with the application of the Rule of Law:
(i) Absence of the independence of the judiciary: If the independence of the judiciary is not in place, the application of the rule of law could be defective.
(ii) State of emergency: This may result if a country is passing through crises and when this is imposed,the rights of the citizens are denied them. State of emergency in a country, may give more powers to the government, even to arrest and detain citizens without a possible trial in courts. It is a period that people detest so much.
(iii) Type of party-system: A system of government practised in a country e.g. one-party system may produce a dictatorial government and this can affect a smooth application of the rule of law.
(iv) The military in government: The role of the military in government is seen as defective. It does not rule the people with a constitution. The laws of the country are not respected and even the Judiciary is not given a free hand to adjudicate and interpret the laws of the land freely. This is also a problem associated with the concept of the rule of law.
(v) Setting up of Tribunals: It administers cases differently from constitutional courts. Appeal Cases are not entertained, making it to work contrary to the laws of the land.
(vi) Diplomatic immunity: According to international laws and convention, diplomats are not prosecuted in the countries where they are representing their countries. This is a limitation to the application of the rule of law.
(vii) Parliamentary immunity: Law-makers cannot be prosecuted based on any negative happenings on the floor of the parliament. Such actions in parliament are problems to the workings of the rule of law.
(viii) Delegated legislation: Laws made at times by some of these bodies e.g. NEPA violate the principles of separation of powers and rule of law.
(ix) Unlawful detention, arrest and torture, by the law enforcement agents e.g. the police are problems to the application of the rule of law.
(x) Illiteracy, Ignorance and poverty: These three ills in the society, prevent citizens of a country from knowing and even taking the necessary actions against the denials of their rights.
(xi) Customs and Traditions: Respect to customs and traditions of the people of a country may result in violations of the rule of law.