Ideological Conflicts229 on Rule of Law in ACJA
Law remains a construction of enforceable commands fundamental to the society and promulgated by a
body like the government. Understandably it is connected to ideals, which denote, a universal logic, in a
system of politically conscious thoughts.230 In this vein, ideologies, just as legal systems, are spread
through the political spectrum. Moreover, legal systems are ideologies which may be liberal, fascist,
communist, and so on, as have been accepted as the manifestation of a political system. If this is so, one
may not be wrong to presume that the practice and doings of law are designed by people's political
dogmas, and given the impression that law originate from ideology in an honest and indisputable manner.
Thus, Sypnowich had observed that:
“Next to dispute is an understanding of ideology as a source of manipulation.
Law as ideology directs its subjects in ways that are not transparent to the
subjects themselves; law, on this view, cloaks power. The ideal of law, in
contrast, involves a set of institutions that regulate or restrain power with
reference to norms of justice. Thus the presence of the ideological in law must,
in some sense, compromise law's integrity. Not only is the view of law as
ideology at odds with a lot of mainstream thinking about law, it seems difficult to
reconcile with the central philosophical positions on the nature of law, e.g. a
positivist conception of law as a set of formal rules, or a natural law conception
where law is identified with moral principles.”
Back home, there is a seeming debate between what the rule of law is and what is not, under
ACJA. This debate can be trace to where any government in power chooses to obey or disregard
the law to have it full course. During former President Obasanjo days as the civilian president it
was argued that corruption cases were prosecuted on his body language or his whims and
caprices not by the procedure laid by the law. He was accused of being the petitioner or
informant and was also purported of listing who is to be prosecuted or not.. In Jonathan days, the
debate went on to assume that the modalities put in place to prosecute corruption were mere,
228 Item 67, Exclusive Legislative List; part I, Second Schedule to the CFRN 1999
229 Sypnowich, C. (2004), "Law and Ideology", The Stanford Encyclopaedia of Philosophy (winter 2014 Edition),
Edward N. Zalta (ed.), URL =available at <http://plato.stanford.edu/archives/win2014/entries/law-ideology/>. Retrieved on
29/08/16
230 Sypnowich ibid
thus, the famous quote that „corruption is not stealing‟ or „stealing is not corruption was his
undoing.‟ According Jonathan,231 who however explained that he was quoted out of context:
I made that statement because I quoted the former Chief Justice of Nigeria,
Mustapha, (when) I called a meeting then, with the anti-crime organisations and
the judiciary.
“The CJN, Mustapha decided to take a look at the files that dealt with
corruption and more than 80 per cent of them were just cases of stealing. But
people use corruption to cover all. What I am saying is that let us go to the
South-West and go to a typical community and they look at you and say this man
is corrupt, people will be looking at you. But call that same man “ole”, that is
thief, and see what will happen to him. Our people hate thieves more than
corrupt people, yet most times, we use corruption to cover the lapses.
“A thief should be called a thief and treated as such. In my village, when an
adult steals, they strip him unclad, humiliate him and his family, but if you say
this man is corrupt, they won‟t know what you are talking about. We are
using corruption to cover it all up.232
Whether stealing or corruption the law should be the denominator and standard of evaluating
who is corrupt and who a thief also is not the cultural barometer for that will give vent to trial by
ordeal or mob justice. If there was evidence that people were stealing under the law they should
be prosecuted. The fact that criminal activities of whatever nomenclature are not prosecuted the
more reason society or some part of it may idolised it. Is it true that if man is called a thief he
will be more vilified than if he was called a corrupt person? If the common people have this
psych does the law do the same? In the Nigerian court, a man who steals a goat may be
sentenced to 7 years imprisonment while a man caught N2 billion pension funds inside his
house233 was asked to pay a fine of N750, 000.00. In such a situation, the primus should be to
reform the law and its structural framework to avoid similar occurrence. Because sometimes;
lacunae inherent in statutory provisions might ultimately collapse the system in the short or long
231 Dr. Goodluck Ebele Jonathan, former President of Nigeria 2010-2015.
232 Niyi 2015 „Jonathan Explains „Stealing Is Not Corruption‟ available at http://www.informationng.com/ retrieved
on 29/08/2106
233Chiagozie February 2012. Corruption extreme: Government official caught hiding N2 billion cash in his house.
information Nigeria. Available at http://www.informationng.com/2012/02/corruption-extreme-government-official-
caught-hiding-n2-billion-cash-in-his-house.html retrieved on 16/09/2016
run. For law that was enacted when a naira was equivalent to a pound to still be in operation the
judges‟ might actually have had his hands tied by the law.
However, where a man qualified as a thief is instantly unclad, humiliated or killed and the one
who is corrupt is treated as the king brings to fore the conflicts that surround the administration
of criminal justice and the law in particular in the country. More so when the law is determine by
the body language of the leader and not the institutional forces of rule of law the system is in a
Long Walk to Freedom. For example crime will only be prosecuted if the leader says so; the
court will not be impartial, independent and honest except to do justice according to the leader‟s
body language, whatever it is that is perceive as the language. There will in due course be two
sides to the meaning of rule of law. One side of the divide may believe in the „rule by force‟,
and the others‟ prism „the rule of law.‟ This has nothing to do with any former or present
leadership in the country being praise or disparage than the study trying to extrapolate between
the conflicts of these ideologies in the Nigerian legal system.
According to Prof. Li Shuguang234 who distinguished between „Rule of Law‟ and „Rule by
Law‟ stating that the difference is that under the rule of law, the law is preeminent and can serve
as a check against the abuse of power. While the rule by law, the law serves as a mere tool for
government that suppresses in a legislative fashion.235 Against this background, Dias observed
that there are implications in power; one is physical force, which however great is inactive in
itself. But that it can only be dangerous when use and legally its use is a matter of privilege to do
so or not. There is therefore a difficulty associated with curbing abusive use of physical force
and this is the problem of restraining liberty of action.236 The other implication of power, Dias
believed, is the legal duty to alter lawful interactions or dealings and this is the sense in which
the problem of power is under consideration. Under the present administration there is what
could be termed as „moderated rule of law‟ given in favour of corruption cases. The accused
persons are arrested or their bank accounts frozen without prior court order and are not even
arraigned before the court than remanded under the EFCC‟s custody. This is an example of a
skewed rule of law properly so called: rule by force, which does not strengthen the foundations
234 Li Shuguang, Professor at China University of Political Science and Law available at
http://en.cesl.edu.cn/info/1176/1173.htm retrieved on 29/08/16
235 Sagay, citing Brian Tamanaha 2004; On the Rule of Law, 10th ed. Cambridge University Press, p. 3
236 Dias RWM, 2013, Jurisprudence, op. cit. p. 87
of the law. It blows hot or cold at the leaders command. Africa it is said needs strong institutions
not strongmen.237
Hence, the power to make laws maybe supreme but the power to follow the law or allow the law to
have its way is challenging. Even so, the abuse of this power by government may be designated
„rule by law‟ where laws are used as instrument of government policy238. Rule of law by
contrast is the use of law among other things to curb the misuse of power by government. The
abuse of rule by law manifests itself not only in the passing of unjust law or the sobriquet
„law‟ rather, it could manifest in the manipulation of the law239 to fit unjust purpose or flagrant
abuse like the now canvassed „moderated rule of law‟240 in the current dispensation which
shall be looked into in the next chapter. “Law”, according to Sajjad, Ahmad J in Jilani v.
Government of Punjab241, “becomes law only if it satisfies the basic norms of the legal system
of the country and receives the stamp of validity from the law courts.”242
Invariably, the concept of Rule of law, Sagay said, owes it origin not only to AV Dicey‟s
absolute supremacy or predominance of regular law, as opposed to the influence of arbitrary
power, arbitrariness of prerogative or wide discretionary authority on the part of government,
where Englishmen are rule by law and by law alone… can be punished for nothing else. But,
also, as Plato, observed that “where the law is subject to some other authority and has none of
its own, the collapse of the state is not far off. Therefore law must be a master of the government
and government its slave and men should enjoy the blessings of the gods.243This means in the
operation of rule by force government uses law subjectively and indiscriminately as against the
rule of law which is objectively and empirically administer.244 The rule of law does undermine
237 Barrack Obama (2009); Africa Doesn‟t Need Strongmen; it needs Strong Institutions, Sunday Times, July 12,
2009. Available at http://www.sundaytimes.lk/090712/International/sundaytimesinternational-03.html retrieved on
16/09/2016.
238 Dias op. cit.
239 Ogunmade, O. (2016), Senators Reject Buhari‟s Emergency Powers Bill, Say It‟ll Turn Him into a Tyrant;
ThisDay Newspaper, August 23, 2016. Available at http://www.thisdaylive.com/index.php/2016/08/23/senators-
reject-buharis-emergency-powers-bill-say-itll-turn-him-into-a-tyrant/ retrieved on 16/09/2016.
240 Falana, F(2016) et al available at http://saharareporters.com/2015/12/10/using-human-rights-promote-corruption-and-
impunity-femi-falana retrieved on 24/08/2016.
241 MISS ASMA JILANI V. GOVT. OF THE PUNJAB PLD 1969 LAH 786 available at
http://advocategeneral.punjab.gov.pk/node/1872 . Retrieved on 16/09/2016.
242 Pak LD (1972) SC; 139 at 261
243 Sagay op. cit. 54
244 S. 35. CFRN
the constitution245 as a practice of democracy and fulfilment of rule of law. In all, the ACJA
serves as both a rule of law checkmating abuse of powers by criminal justice institutions and
procedure in the administration of criminal in to guarantee the access to justice on the principles
of equality before the law.
