72. It is not sufficient for an act on the basis of which a state limited the
enjoyment of possession to be a formal legal source within the meaning of
domestic laws, but it must furthermore contain certain qualitative
characteristics and afford appropriate procedural safeguards as to ensure
protection against arbitrary action and conformity with the rule of law.
In JAMES Vs UNITED KINGDOM [1981] ECHR 4 the ECHR held
“.It has consistently held that the term ‘law’ or ‘lawful’ in the Convention
[do] not merely refer back to the domestic law but also relates to the quality
of the law, requiring it to be compatible with the rule of law.”
73. The rule of law requires fairness in the application of the law, the
avoidance of arbitrariness and procedural and legal transparency. The proviso
in the second portion of Article 14 of the Charter that is, legality of the law,
and the legitimacy of purpose are both intended to prevent the arbitrary
interference in the peaceful possession guaranteed in the first portion of the
Article. It is a basic guarantee against the state’s arbitrary exercise of its
powers. See FESTUS A.O. OGWUCHE V. FEDERAL REPUBLIC OF
NIGERIA ECW/CCJ/JUD/02/18 @ pg. 23 Supra
74. In considering whether the alleged interference is in accordance with the
Law, the Court must first identify the law under which the Respondent acted
before subjecting it to the legality test. The documents before the Court
disclose that each of the five letters granting authorization to open the various
schools end with the following clause;
Article 2: The authorization referred to in Article 1 of this Order may be
suspended or withdrawn at any time if it is proved that the promoter
concerned does not comply with the opening conditions set by the regulation
in force.
Article 3: The Secretary General of the Ministry of Secondary Education is
responsible for the application of this decree which shall be published in the
Official Journal of the Republic of Niger.
Furthermore the conditions for opening referred to in Article 2 supra is recited
in the preamble of each grant which says: having regards to Decree no 96210/PCN/MEN of 19 June 1996 fixing the methods of application of the
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