By Ise-Oluwa Ige

Professor Awa Kalu, SAN, a respected member of the inner bar and erstwhile Abia State Attorney-General and Commissioner for Justice in this interview draws a distinction between the rule of law and the rule of man even as he emphasises that any society that fails to operate by the rule of law is prone to conflict and instability.

What is the rule of law and why is it important in a democratic setting? 

Let me start by saying it is perhaps now difficult to find a strict definition of the rule of law. The term has been subject to various definitions, even at multilateral level. In that sense, rather than struggle with a binding definition, it may be simply noted that the rule of law encompasses several indices, including equality before the law which means everyone is equal in the eyes of the law, no one is above it, and no one is exempted from it, regardless of their status, wealth, or position.

In addition, the rule of law presumes and requires legal certainty. That is to say that no law should be woolly and made deliberately incapable of interpretation and construction. It also entails legal certainty. That is,  laws must be clear, stable, and predictable, ensuring that individuals can understand and anticipate the consequences of their actions.

Laws must be fair and in the pursuit of that fairness, laws must be applied impartially without discrimination or bias. Even our current Constitution guarantees that for an act to constitute an offence, the offence must be prescribed in an Act made by a competent legislature. The rule of law equally assures the access of all citizens to justice, that is, the old or ancient assumption that where there is a right, there must be a remedy.

In the wider sense, the rule of law encompasses the length and breadth of the human rights regime and thus, upholds and protects fundamental Human Rights and Freedoms and such freedoms include freedom of expression, the right to peaceful assembly, and freedom of thought and the freedom to worship and practise one’s religion.

It must be noted that the rule of law is, for so many reasons, the bedrock of a democratic society, in that, it is fundamental to the protection of rights, limiting Government power, promoting accountability, guarantees stability and predictability in the management of government affairs, thus, fostering trust within the democratic system and aids the resolution of conflicts which are inevitable.

How does the rule of law add value to the society or the absence a hindrance?

The rule of law adds significant value to society, and its absence can create substantial hindrances. The rule of law, for instance, ensures protection of every citizen’s rights and freedom. By citizens’ rights, I mean the right to life, liberty, property, and due process. When these rights are upheld, individuals can live with dignity and pursue their goals without fear of arbitrary actions by the state or others. Two, a society governed by the rule of law enjoys stability and predictability as people can make plans, investments, and decisions with confidence, knowing that legal frameworks are consistent and enforceable. Three, a strong legal system underpinned by the rule of law is essential for economic development as it encourages entrepreneurship, investment, and business growth because individuals and companies have faith in contract enforcement and property rights. Four, government officials and institutions are held accountable under the rule of law. This accountability deters corruption, abuse of power, and misconduct, promoting good governance. Five, when citizens trust that the law is applied fairly and impartially, it fosters social cohesion. People are more likely to respect one another’s rights and peacefully resolve disputes.

On the other hand, without the rule of law, there can be widespread injustice and inequality. Those with power or resources can act with impunity, while vulnerable individuals or marginalized groups suffer disproportionately. Also, societies lacking the rule of law are often prone to conflict and instability.

Disputes can escalate into violence because there are no fair and impartial mechanisms for resolution. Besides, businesses are reluctant to invest in environments where contracts may not be enforceable, property rights are insecure, and corruption is rampant. This leads to economic stagnation and poverty. Indeed, in the absence of the rule of law, trust in institutions and government erodes. Citizens may become cynical about the legal system, leading to decreased cooperation and compliance with the law while human rights are at risk as torture, arbitrary arrests, and other abuses can occur without accountability. Finally, government services and public administration may suffer when there is no rule of law. Corruption and inefficiency can lead to inadequate delivery of essential services like education, healthcare, and infrastructure. It is therefore clear that upholding the rule of law is crucial for the well-being and progress of any democratic society.

In clear terms, then, how is the rule of law different from rule of man?

The “Rule of Law” and the “Rule of Man” represent two fundamentally different approaches to governance and the management of public affairs and to some extent, the governance of private rights, and understanding the distinction is crucial. The key difference between the rule of law and the rule of man is the source of authority and decision-making. The rule of law emphasizes the supremacy of established legal principles and equality before the law, while the rule of man places ultimate authority in the hands of individuals, often leading to potential abuse of power, inequality, and unpredictability in governance. It creates a sure right of man to ignore the rights of others and rather to take the welfare of others into account, the rule of man creates room for inequity and inequality, for tears instead of smiles, for bitterness rather than goodwill.

Consequently, democracies and modern societies strive to uphold the rule of law to ensure fairness, justice, and the protection of individual rights and thus minimises abuse of power and maladministration.

Does rule of man as against rule of law have consequences for society?

Yes, the choice between the “Rule of Man” and the “Rule of Law” has significant consequences for the society, and these consequences can be far-reaching and profound. The rule of law has shown a preference for stability and predictability in the management of the affairs of man, ensuring stability and predictability, protection of rights, accountability in governance, economic prosperity and social cohesion. On the other hand, the rule of man installs instability and uncertainty in the management of the problems of society; inequality in the distribution of amenities, absence of egalitarianism, and upsurge of corruption and preferential treatment. The rule of man promotes the violation of individual rights and in all likelihood, economic stagnation and social division are guaranteed consequences. Of course, the rule of man is to be avoided in all circumstances.

Are there specific sections in our constitution and relevant laws that guarantee rule of law and what is the intendment of those sections of the constitution and laws, if they exist?

For the purpose of answering your question, it must be emphasised that the Constitution cannot be bifurcated in search of sections that promote the rule of law and for other sections that do not. The Constitution as a whole, it must be said, is made for one purpose, namely: the welfare and happiness of the generality of Nigerians, as well as non-Nigerians who sojourn here for the fertilisation of either their businesses or their freedoms. The preamble to the Constitution gives the clearest idea that the Constitution was promulgated “…for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality and justice…”

However, it must also be emphasised that Chapters II, III and IV of the Constitution, which provide for Citizenship, Fundamental Objectives and Directives of State Policy and Fundamental Human Rights, pigeon-hole the principles which underpin the rule of law. The Nigerian Police Act, The Economic and Financial Crimes Commission Act, as well as the Independent Corrupt Practices and Allied Offences Act, are enactments for the judicious management of law and order which ensure minimisation of acts and omissions that are deleterious to law and order in society, including the curtailment of economic and financial crimes.

What are the specific institutions of state that enforce rule of law and how have they fared since 1960 when Nigeria attained independence?

As earlier stated, several key institutions play a role in enforcing the rule of law. These institutions, however, have evolved and faced various challenges since Nigeria attained independence in 1960. Of course, there was the active presence of the Nigeria Police Force which was a key institution for the maintenance and sustenance of law and order. Of course there were rudiments civil society organisations, which helped in sustaining equilibrium in the management of public affairs.

It is safe to suggest that in the period between 1960 and 1966, the Executive was headed by the ceremonial President as well as the Prime Minister who had executive powers, while parliament fulfilled its key oversight functions as well as its law-making functions. The Judiciary performed its key functions of adjudication, as well as the judicial supervision of the functions of other arms of Government. In the period between 1966 (after the first military coup, the counter-coups and military rule) and 1979, when Constitutional and democratic rule returned, Nigeria witnessed a suspension of the Constitution, except those portions that were permitted by the military junta, which had grave implications for the rule of law. I retain the memory of a case involving the Nigerian Union of Journalists, concerning the enforcement of Human Rights, where the Court of Appeal insisted that in times of military rule, Human Rights “must blow a muted trumpet”. That summarises the situation of Human Rights and the rule of law under military rule. Of course, the 1979 Constitution restored civilian rule but having been under military rule for a while, the vestiges of that regime of high-handedness still held sway and not much gain was made in the restoration of the full weight of the rule of law.

People say strong institutions as against strong individuals are vital to the rule of law. To what extent would you say this applies to Nigeria?

We cannot hide from the consequences of a long period of military rule. Understandably, military rule follows the command and control concepts of military regimes and Nigeria has not been an exception. The Commander commands and others follow, and to that extent, the Commander is always a strong man and consequently, prevents the growth and development of strong institutions. The resultant effect has been the “felt advantage” of the command of the big man and others following. That of course has not been advantageous for the sustenance of strong institutions as against the prevalence of strong individuals. It is hoped that in due course, there will be fewer strong men and more strong institutions.

If you were to rate successive administrations on the scale of 1 to 10 on how each of them performed on rule of law, what will be your response?

From a legal point of view, I would rather reserve my comments and hide my cane. What this means in general terms is that successive Nigerian Governments have failed to learn that an undisguised adherence to the rule of law is better than ignoring the rule of law and settling for cult figures.

What do you make of the attitude of the less than six months old administration of President Bola Tinubu to rule of law and what advise do you have going forward?

Well, the attitude of this government towards the rule of law is worrisome and that the government has started off on the wrong foot with regard to respecting the rule of law. However, it is still early days and the government can make amends and correct certain wrongs whilst also avoiding certain pitfalls including committing to the rule of law in both words and actions, demonstrating a dedication to the principles of justice, accountability, and the protection of citizens’ rights;  strengthening key institutions, such as the judiciary, law enforcement agencies, and anti-corruption bodies; embracing transparency and accountability, respect human rights, engage in consultation and dialogue with civil society organizations, legal experts, and the public on matters related to legal reforms and governance; keep the country stable and secure, and collaborate with international partners and organizations to share best practices, technical assistance, and resources for rule of law initiatives.