President Muhammadu Buhari, last Sunday stirred the hornet’s nest, when he initiated a rather controversial debate, which attempted to undermine the rule of law in deference to national security. Delivering his speech at the annual conference of the Nigerian Bar Association, a week today, the president reportedly said, where national interest and the rule of law clash, national security takes the front seat and the rule of law is relegated in the national interest. He went on to cite a certain Supreme Court’s ruling, which seems to support his argument, albeit without a full grasp of the ruling and the context in which the reference was made. Expectedly, his pronouncement has since generated a heated debate, with many a Nigerian thinking it was a move by the Buhari administration to find the ground to fully transform into a dictatorship. With the help of some sound legal minds, Olawale Olaleye and Shola Oyeyipo compile what is put down as the position of the law as against the thinking of President Buhari
It was the start of the 58th annual conference of the Nigerian Bar Association (NBA) last Sunday. President Muhammadu Buhari, who delivered the keynote address, spoke on various issues, chief of which was his view about the rule of law on issues of national interest.
“Rule of Law must be subject to the supremacy of the nation’s security and national interest. Our apex court has had cause to adopt a position on this issue in this regard and it is now a matter of judicial recognition that; where national security and public interest are threatened or there is a likelihood of their being threatened, the individual rights of those allegedly responsible must take second place, in favour of the greater good of society,” he had said.
The president did not, of course, cite any of the current cases that are still in court and for which his administration views the need to uphold “national interest” above the rule of law, his attorney general, Abubakar Malami, would later give his position above as a reason for the government’s refusal to comply with several court orders for the release of former National Security Adviser (NSA), Sambo Dasuki and leader of the Shiite sect, Ibrahim El-Zakzaky as well as his wife, Zeenah.
Dasuki was arrested in 2015 for alleged possession of firearms and diverting $2.1 billion while he was NSA. In his case, El-Zakzaky too was arrested in December of 2015, after some of his men had an encounter with the military. Many of his men were killed in the process, while he and his wife were hauled into detention. And in spite of many court orders granting their bail, including the ECOWAS, of which Buhari is now chairman, the government has looked away.
Of course, this is to be one of the campaign issues against Buhari’s re-election next year, the reason many are of the view that he made the statement on rule of law and national interest in order to have the grounds or justification for their continued detention especially citing the ruling in the case of Asari Dokubo, which was essentially at the discretion of the judge.
But Nobel Laureate Professor Wole Soyinka and lawyers of all categories had since taken no prisoners on the matter, insisting the president was wrong and that no matter of national interest could displace the rule of law into a second position. The rule of law, a majority of them contended, is immovable. The following are their arguments.
BUHARI’S PERNICIOUS DOCTRINE
Here we go again! At his first coming, it was “I intend to tamper with Freedom of the Press”, and Buhari did proceed to suit action to the words, sending two journalists – Irabor and Thompson – to prison as a reward for their professional integrity. Now, a vague, vaporous, but commodious concept dubbed “national interest” is being trotted out as alibi for flouting the decisions of the Nigerian judiciary. President Buhari has obviously given deep thought to his travails under a military dictatorship, and concluded that his incarceration was also in the “national interest”.
The timing is perfect, and we have cause to be thankful for the advance warning, since not all rulers actually make a declaration of intent, but simply proceed to degrade the authority of the law as part of the routine business of governance. We have been there before. It should be of mere interest, not despondency, that this latest proclamation of dictatorial recidivism has also been made before an assembly of officers of the law, the Nigerian Bar Association. We expect a robust response from the NBA as part of its conclusions.
There is no short cut to democracy. The history of law, even where uncodified, is as old as humanity. Numerous rulers have tried again and again to annul that institution. Sometimes, they appear to succeed, but in the end, they pay heavy forfeit. So does society. The Rule of Law however outlasts all subverters, however seemingly powerful. If the consequences for society in defence of the Rule of Law were not so costly, any new attempt would be merely banal and boring, hardly deserving of attention. We know, historically, where it will all end.
“Owing to the refusal of the civilian wing of the political class to demilitarise the polity there has been unsettled debate over the primacy of national security over the rule of law. The debate over the clash between the rule of law and national security has been reopened by President Mohammadu Buhari at this conference when he enjoined Nigerian lawyers and judges to realise that national security takes precedence over the rule of law.
“A few days before then, the President had threatened to jail looters, who had sabotaged the security of the nation by diverting huge funds earmarked for the development of the country. It is implied in the presidential declaration that the alleged looters cannot be jailed without a trial conducted in criminal courts under the rule of law.
“Majority of political office holders in the country are not committed to the observance of the rule of law. In place of the rule of law, the political system has enthroned the rule of might or rule of rulers,” adding that placing the security of the state above the interests of individual citizens ‘creates a false dichotomy’ that should be avoided.
“It is therefore important for Nigeria to strive to nurture the synergies between the two and to incorporate human rights into national security strategies. I firmly believe that both security and human rights can fully coexist and are absolutely necessary to prevent a breakdown of law and order. I posit that the purpose of national security should be to protect democracy and enhance democratic principles.”
“National Security has no definition, it has no limit; it is amorphous and panders to individual discretion. It is the rule of the Executive Arm of Government alone, being the one responsible for policy implementation and the determination of security imperatives.
“National Security, it is the rule and decision of individuals, such as the Inspector-General of Police or the Commander in Chief. Such rules are always subject to manifest abuses, especially in respect of opposition politics. That has been the experience in Nigeria.
“On the other hand, the rule of law is defined, basic, predictable and even subject to review; it helps to predict and govern human conduct. The rule of law limits and interposes upon the rule of self all forms of arbitrariness and is thus preferable to the whims and caprices of individuals.
“The point of convergence with the President, however, is that those who have prima facie cases of any malfeasance should not deploy the rule of law to avoid liability, especially when it concerns plainly intolerable economic crimes. In such a situation, what constitutes National Security and National Interest should still be determined through the due process of law.
“The daily narration of tales of mind-boggling abuses, under the past administration, should serve as some kind of discouragement, in elevating national security beyond the dictates of law. In Nigeria, presently, our collective wealth and resources are being pilfered by our leaders in the name of national security.
“To postulate that national security should override rule of law consideration may unwittingly portray one as harbouring dictatorial intentions, for preferring national security as a priority for governance.
“It is a dangerous proposition as we approach 2019. Taken to its proper interpretation, it may be taken to be an advance notice to the people of Nigeria, to brace up for likely threats to their rights and liberties, in the coming days. Whereas we all support the President in the fight against corruption and terrorism, it is still necessary to allow the rule of law to have the pride of place in all spheres of governance.
“I, therefore, humbly appeal to the President to accommodate the supreme law of our land, the Constitution, which already contains enough provisions to integrate national security within the due process of law. Nigeria itself as a nation was created by law, the offices of the President and indeed all those saddled with the determination and preservation of national security, were all created by law. Thus, everybody and everything can find their roots and bearings, under the rule of law.”
“He (President Buhari) is dead wrong. The rule of law predominates over national interest. Without the rule of law, there can be no nation-state. Without a nation-state, there can be no national interest. The rule of law is the father of national interest.
“As proposed by Professor A.V. Dicey, it means equality before the law by all persons, observance of all laws by persons and authorities and, of course, obedience to court orders made by competent courts of law.
“Once a court of law has made an order for the release of a citizen on bail, the president, government and all authorities must obey the order of the court. It is not for the government to pick and choose which order to obey and which not to obey in the so-called name of ‘national interest’.
“This is because in arriving at a decision to release an individual on bail, the court must have first heard the facts and argument of the case of both the government and the citizen. It is tantamount to executive lawlessness and governmental capriciousness and whimsicality to sit on appeal over a court decision to determine what amounts to national interest. Such a stance is a clear descent into anarchy and chaos.”
“The president is actually wrong to have said that because the rule of law is supreme. In fact, the national interest and national security are even protected by the rule of law. If you look at the present constitution we have, it says those liberties of individuals can be curtailed subject to national interest and national security.
“So, you can curtail those rights but that can only be done when there is an arm of government that interprets that when you present your facts to show why the liberty of an individual that is protected under the constitution should be curtailed, because every liberty is enforceable because the right to life, the right to freedom of movement and the not to be debased are all fundamental human rights.
“The law says wherever there is any threat or even breach you have a right to approach the court in order to have those rights protected. If you are not going to deny an individual those rights as provided by the constitution, it is the same court that will look at the evidence you are presenting to show that this man’s right was abridged because of overriding public interest or overriding national security. You the executive cannot begin to interpret what amounts to national security and national interest over individual’s right. You don’t do that.
“I think what the president was trying to explain to we lawyers when he came to open the conference was to tell us that ‘we have reasons why we are detaining someone like Dasuki and we have a reason why we are detaining someone like El-Zakzaki’s, despite court orders to the contrary.
“So, they are now telling us that the rule of law can be subject to whatever they interpret to. But we have faulted him, because it is the same court, in the case of Asari, that said he should be released on bail, having looked into whatever evidence they had adduced against him.
“So, like the court has said, they should be released on bail, it is not the right of the executive to say ‘overriding national interest’. That can only be allowed under a military regime, where you have suspended the constitution and other arms of government, but not where other arms of government that are supposed to interpret the law have told you “this is the situation. So, that explanation did not gel at all. It is unacceptable. It cannot be under democracy, which he came to power.”
“The president may need a candid reminder of the fact that the ultimate national interest is codified in the Constitution, wherein the fundamental human rights are given primacy of place and hinged on the rule of law. It, therefore, portends a dangerous trend, where the rule of law now has to play the second fiddle and be at the mercy of a political power.
“It signals strong dictatorial tendencies and potential trampling on the rights given and protected under our constitution. With this assertion coming from a democratically elected government, there is the founded fear that the president may not be standing on the right footing. It supposes too that the president could be taking the wrong advice by ‘political lawyers’ who only perch on his whims and experience as a security and warlord.
“There is no previous decision of the apex court to that effect – the decision being referred to by the president’s yes-men was a side comment in the Mahjid Asari Dokubo’s case. It is rather unfortunate that no one in the president’s kitchen cabinet could be patriotic enough to guide him properly. It is even more unfortunate that the leadership of the bar cannot stand up to him for protocol constraints.
“The more dangerous implication on the commentary is that the president by the statement is equating Nigeria, a federal republic, to a banana republic. The president’s statement, without doubt, ultra vires our constitution, in fact, it is an attempt to hogwash our constitutional democracy vis-a-vis the constitutional rights of the citizenry and even the very tenets of his claim to the Office of the President of our Federation. The statement has no legs to stand on! No serious citizenry would and should take the president serious on this.
“President Buhari should not lose sight of the transient nature of power. He should note that whatever influence or the rank of enthusiasts cheering him on to the extreme, they would sure abandon him the moment he falls out of grace. It’s therefore very important that the President guards against sliding into bad errors, such as trying to build something on nothing by attempting to place emotion above the law.”
“It is highly unexpected of a democrat to utter such statement. Then who determines what national interest is when constituted and constitutional authorities which are the court of law and the constitution, stipulate that we should have rule of law?
“Outside of rule of law, then, it means we have the rule in the jungle. So, we cannot afford to let one person determine what is constitutional and what is in the national interest.
“The position of President Buhari is quite strange. There is nothing known as the supremacy of the nation’s security and national interest. What we have is supremacy of rule of law. This is just a position of a dictatorship mind. The country security and national interest are rooted and very well protected under the rule of law. The president’s position will give room for anarchy and dictatorship.
“Who determines or what are the yardsticks for quantifying national security to bypass the rule of law. The exercise of any governmental power without rule of law is a corruption of power, which ought to be resisted. The president is still living in his past and not in the present and that is the reason his government is unable to achieve meaningful change.”
“That is a misjudgment and it shows that that president has probably not received the best advice from his aides, especially the Attorney-General. In this regard, all departments of government are important. For us to have peace and tranquillity there must be rule of law and there must be adequate security.
“As such, no one is subordinate to the other. They all have their equal placements. So, the idea of placing one above the other, it means that such a government is deliberately abdicating its roles in the area they are putting under the carpet.”
“The point is, every society, every organisation, every club, every household, is based on rule of law. And rule of law is the foundation of equity and without the foundation, nothing built will stand. It is only through the rule of law that the country will attain all its potential.
“So, when the president said the rule of law should be subjected to national security, I want to say national security has its root, its existence and foundation in the rule of law. If that is the case, rule of law cannot be subject to national security. So, the President has the background of a military man, I will not be too hard on him but I will tell the President that national security cannot take precedence over rule of law. It should be the other way round.”
“In as much as national security forms the core of national interest, it will take upper hand in a benevolent dictatorship or in a period of war, but in a constitutional democracy, the rule of law must supersede. If bail is refused to an accused, because of the brandish of national security by the state, the court of law must have considered every circumstance before exercising its discretion.
“However, if bail is granted in the wisdom of the court despite flashing security issue, the only option opened to the state is to appeal and if that is explored to finality, the order must be obeyed. To do otherwise is to encourage anarchy.”