Análisis financiero

(vi) Lack of arbitrariness.

It is debatable whether the minimum content is really applicable to a democratic Nigeria. But there was certainly no debate about its doomed fate in the years of military dictatorship.

This is predicated on the fact that the military, upon assuming power, usually abrogates or suspends some parts of the Constitution including the fundamental h u m a n r i g h t s p r o v i s i o n s o f t h e C o n s t i t u t i o n . The d e c r e e s o f the legislative body – SMC, AFRC – negated the rule of law. Many courts had no choice but to give their blessings to such decrees. However, there were some innovative judges who declared that rule of law was alive and well even in such autocratic regimes.

This is because rule of law presupposes the existence of a particular kind of higher law to which everyone in the society is subject. The military, however, in coming to power suspend and modify this higher law which is a form of a constitution and continues to rule by different decrees which are quite irregular and uncertain. Also, a later decree supersedes the former and the rights that are in existence today may tomorrow be taken away. Despite this, some fearless judges still demand strict compliance with the provisions of extant decrees.

The importance of this concept to administrative law cannot be over emphasized. This is as a result of the fact that the main purpose of administrative law is to keep the confines of the administration within the limits of the law as represented by the constitution in a civilian regime and decrees during a military rule.

(c) Basic Rights

Dicey states that the constitution is the result of the ordinary laws of the country. In other words, the fundamental rights enjoyed by citizens derived from the ordinary laws of the land or from the decisions of the courts, not from any special guarantee by the constitution.

of the rule of law for court rulings and decisions and other processes of court to be obeyed.

The situation is the same even where such decision is null and void. It is the duty of a law-abiding citizen to get the court to declare the nullity of such decision but until then such decision must be obeyed. A decision that is null could make the law or the legal system to be unjust. According to natural legal philosophers, an unjust law deserves to be disobeyed. However, according to Thomas Aquinas, such laws may still be obeyed despite their unjustness if doing otherwise will cause social disorder.

(b) Respect for Human Rights

Respect for human rights has become the basic template for determining whether or not the government is rule of law-compliant. Human rights are the freedoms, liberties, immunities or benefits which are inherent in human beings in a civil society. They predate the individual or the society. Such rights are to be found in Chapter II and Chapter IV of the CFRN 1999.

See the African Charter on Human and People’s Rights (Ratification and Enforcement) Act 2004, through which Nigeria domesticated its obligations to observe human rights under the African Charter on Human and People’s Rights 1981. See also the following cases:

Fawehinmi v. Gen. Sani Abacha & Others, (1996] 9 NWLR (Pt. 475) 710 CA.

and Governor of Lagos State v.Ojukwu. [1986] 1 NWLR (Pt. 18) 621 SC.

(c) Recognition of New generation of Human Rights

In the beginning we had the first generation – International Covenant on Civil and Political Rights (ICCPR) of 1966, Adopted and opened for signature, ratification and accession by GA Resolution 2200A (XXI) of 16 December 1966, and entered into force on 23 March 1976 – and the second generation – International Covenant on Economic, Social and Cultural Rights (ICESCR) 196

Adopted and opened for signature, ratification and accession by GA Resolution 2200A (XXI) of 16 December 1966, and entered into force on 3 January 1976 – of rights. However, because of the dynamism of human rights its categories are not closed. Consequently, human rights have been categorized into miscellaneous generations of rights.

4.0 C O N C L U S I O N

Rule of law presupposes the doing of everything according to law, that is, that there is the absolute predominance of regular laws over privative laws or discretionary laws; equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; and the guarantee of certain basic rights.

The doctrine of rule of law is popular because there is hardly any legal system that does not contain, at least, the tenets of the doctrine. Discretionary power or the exercise thereof is one practice that the doctrine condemns because it allows individuals to apply their own personal conviction without necessarily resorting to the law. But because of the complexity of modern State and the complicated nature of its problems, there is the necessity to entrust administrative agencies with the power to act discretionarily in deserving circumstances – circumstances unforeseen.

In its modern manifestation, rule of law has given rise to, for instance, new generation of rights or human rights such as the rights to development, environment, etc.

5.0 S U M M A R Y

In this Unit, we examined rule of law in its traditional form and in its modern ramification.

We equally attempt some analyses and, finally, looked at the contemporary scope of the concept.

6.0 TUTOR-MARKED ASSIGNMENT

1. Even in contemporary times, rule of law remains what it was in classical era.

Discuss.

7.0 REFERENCES/FURTHER READINGS

1. Akin Oyebode, International Law and Politics: An African Perspective (Lagos: Bolabay Publications, 2003).

2. Kenneth Culp Davis, Administrative Law and Government (Minnesota: West Publishing Co., 2nd

Edition, 1975).

3. E.C.S. Wade & A.W. Bradley, Constitutional Law 64 (London: Longman, 8th Edition, 1970.

UNIT 3 CONSTITUTIONAL SUPREMACY