Attempts at Defining the Rule of Law-Supremacy of the Law

The “Rule of Law” means that law rules or reigns. This presupposes a situation where everything is done in accordance with law thereby excluding any form of arbitrariness. The concept of the rule of law is of great antiquity. This is because, for many centuries, it was recognized that the state usually possessed enormous power which may be used to oppress individuals. This has been a point of concern for both political and legal philosophers who are in a continuous search for a suitable and somewhat permanent means of subjecting governmental power to control.

Aristotle argued that government by law was superior to government by  men. By this he meant that where the rule of law prevailed, government will be better organized unlike rule by the whims and caprices of the leader which will likely cause chaos.

The rule of law as a constitutional and political concept has been a subject of much interest to prominent writers even before the 19th century when A.V. Dicey wrote his thesis. So one can rightly assert that Dicey did not invent the rule of law concept, he only put his own interpretations upon its meaning.

While writing on the concept in the late 19th century he was very much influenced by his own understanding of the working of the British constitution. In his writings, Dicey acknowledged that the supremacy of the law had been one of the features at all times of the political institutions of England since the Norman Conquest.

From the foregoing analysis, it is clear therefore and one could safely say that the basic meaning of what the concept of the rule of law stands for is that the law of any given state is supreme over and above all the individuals, be it the kings and its subjects.

Supremacy of the Law 

Professor A.V. Dicey in his epochal work distilled and expatiated on the “Rule of Law”. Even though the three aspects are subject to constructive criticism, writers on the subject are agreed that Dicey’s formulations are authoritative coming as the last stage of the evolution of the concept. One of thethree formulations is the supremacy of the law.

This first aspect of the Rule of Law as formulated by Dicey was that the concept means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of wide discretionary authority on the part of government. A further interpretation of this formulation is that no man should be punished or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.
However, this proposition when Dicey said it was to the displeasure of non-Anglo-Saxon writers. He said: “A man with us’ (the English Nation) may be punished for a breach of the law but he can be punished for nothing else.”

For the purpose of this discussion, this formulation can be subjected to at least two interpretations.

Firstly, it may mean that power, no matter from whom it came, must be exercised in accordance with the existing laws of the land.

The second possible interpretation is that the citizen could only be punished for a breach of the law established in the constitutional manner before a constitutionally constituted court of the land. This issue came up comprehensively in the popular case of Mohammed Olayori and others. The issue in that case was whether a decree which conferred special powers on the Chief of Army Staff to detain persons during the period of emergency was enforceable. TAYLOR C.J. said;

“…If we are to live by the rule of law, if we are to have  our actions guided and restrained in certain ways for the  benefits of society in general and individual members in  particular then, whatever status or post we hold, we must  succumb to the rule of law”.

The court, in the most instructive manner condemned the arbitrary powers of the Chief of Army Staff.
In the general sense, the first formulation means that the Rule of Law presupposes the absence of arbitrary and capricious law. Therefore, for a person to be punished for a law, that law must be written and ascertainable. This was the decision of the Nigeria Supreme Court in AOKO V FAGBEMI (1969)1 ALL N.L.R. 400. It is also a constitutional provision by the provisions of section 33 of the 1999 constitution of the Federal Republic of Nigeria.