Rule of Law and National Security



President Buhari has arguably arguably just advanced what may pass as his most debatable and far reaching proposition on law and sovereign responsibility in a democracy since he assumed power almost four year ago. He reportedly told the annual conference of the Nigerian Bar Association a few days back in Abuja that where the rule of law and the imperatives of national security collide, the arc of supremacy would bend in favour of national security.

The inherent controversy is old but its srelevance to today’s Nigeria is boiling hot.

This is perhaps an elaboration of a position earlier articulated by Attorney General, Malami to justify the continued detention of both Shiite leader, Sheikh El Zakzakky, and former National Security Adviser, Sambi Dasuki ,in persistent violation of an avalanche of court orders to the contrary.

In that preceding submission, Mr. Malsmi, himself a lawyer of some repute, had argued that the crimes for which both detainees were being held are matters of severe national security interest that supersede judicial adjudication. Therefore, the administration cannot but hold them in defiance of court orders.

In particular, Mr. Dasuki’s alleged crimes, he argued, touched on grave security issues that have to do with the Boko Haram insurgency.

Mr. Malamud almost ruined his own argument then when he argued that vicariously, Mr. Dasuki as NSA may have omitted or committed acts which led to loss of lives in the insurgency war. His detention he inferred was partly to atone or compensate for those deaths and therefore his freedom to continue facing justice would endanger national security hence his continued detention. This consideration of national security lies above the democratic imperative of the supremacy of the rule of law.

Implicit in Buhari’s and Malami’s mutually reinforcing positions is the presumption that the determination of national security is the exclusive preserve of the president or the federal government as sovereign authority who is implicitly above the law.

Without necessarily linking both positions, it is safe to say that both the president and his chief legal surrogate have touched a rather contentious issue in both jurisprudence and political thought. In a nation that is replete with all manner of lawyers and judicial pundits, a land where the rule of law can appear morexr like the rule and even tyranny of noisy lawyers and legalistic intellectuals, it would perhaps be futile to engage on the matters of legality and jurisprudence that have been raised by the executive branch..

But on the political implications, implications and meaning, fidelity to democracy and its originating liberal ethos dictates that we as a public openly interrogate the proposition further. We We may not be equipped to wrestle with lawyers on the matter but we do have a stake as to who decides what constitutes national security and also the ultimate source of the authority to decide what threatens us as individuals and as a national community. Even more important, it is our right to know and agree on where national security ends and individual rights begin.

In a democracy, the most fundamental assumption that attracts us all to subscribe to a republic by surrendering our rights and liberty to a sovereign is a certain belief in the equality of all men(and women) before the law.

The fair assumption is that both the sovereign and we the people are presumed equal before the law. Therefore we exercise the freedoms which democracy confers in reasonable assurance that those we empower to rule over us will do so in fairness and justice according to law.

There is a further assumption that in the conduct of the affairs of the republic, the leader will be guided by fidelity to the law. This is why the oath of office is worded the way it is and taken with hands on a holy book- a symbol of the divine source of all secular power- literally, God in the absence of a pope or grand Imam!

Belief in the rule of law and sovereign equality before the law is perhaps the only guarantee we all have that those we elect to rule over us will not turn into a band of outlaws. This is my personal perennial quarrel with the immunity provisions in the Nigerian constitution which, ab initio literally empowers and emplaces authorized ‘outlaws’ to preside over the affairs of law abiding citizens.

Be that as it may, there are certain concessions that must be granted to the president’s proposition.

First, the premier condition in the job description of an elected president in a free democratic state is to preserve law and order by guaranteeing the security of life and property. The assumption is that without national Security, there will be no order let alone the application of law. It is only fair then that we trust the president in determining what constitutes national security and what acts of citizens could endanger nation’s security.

There is in the management of national security an implicit assumption that the president has privileged access to intelligence and information that is not available to the rest of us. After all, the president is the boss of a network of professional security experts on the basis of whose judgment and inputs he determines matters of national security.

To that extent, we can assume that presidential judgment on such matters will be in the highest national interest and in conformity with the values that inform every democracy.

There is the additional convention that estimates of national security at the highest level of state can be ascribed to the ‘reason of state’, an indication that those who manage the affairs of state possess a collective wisdom that embodies the highest interests of the nation.

Yet, it is often the case that a governing collective finds it difficult to rise above their own narrow interests. Thus, national interest becomes the interests of the power collective or in local parlance, the ‘cabal’. In Nigeria, such successive cabals almost now approximate a Nigerian deep state. It will be unfortunate if the enemies of the Nigerian deep state are canvassed as enemies of the nation.

Therefore, great care needs to be applied in granting the president the prerogative of absolutely determining what constitutes national security.

. It should not be a blank cheque because we remain largely a compromise nation state, ruled by revolving tribal chieftains, persons ‘elected’ as representatives of geo political appeasement.

Where a president’s conception of national security infringes on the fundamental rights of individuals and groups in open violation of the constitution, then we are in the region of abuse of sovereign power or authority. Also, where the definition of national security is skewed to resemble a partisan, sectarian or sectional bias, then there is a further danger to the entire polis. 

In either case, it is only the courts that can intercede to decide where presidential authority and responsibility end and fundamental the rights of individuals begin. Both the president and those individuals whose rights are violated or who feel aggrieved must go to court to obtain justice according to the law whose grund norm remains the constitution. The situation requires justice, not just judgments.

And once a court of decisive jurisdiction makes a ruling on the matter, the republic expects obedience by both king and public.

To constantly scale the wall of rule of law by citing national security as an absolute unquestionable prerogative of the sovereign is to veer in the direction of autocracy and medieval absolutism.

While no court will overrule a president on genuine national security assessment or decision, no credible court will grant a president the authority to violate individual rights under the guise of national security. Where both positions clash, it is still the courts that will have to make the final determination. In the final analysis, then, authentic democratic order dictates that both kings and plebeians should obey the law.

In the recent history of the United States, for instance, president Donald Trump had to repeatedly return to court to obtain the right to exclude certain categories of immigrants from the US on grounds of national security.

Even the US Supreme Court in its ruling on the matter was very careful. While upholding the right and responsibility of the president to act to protect national security at all times, it insisted that that presidential obligation must not infringe on the rights of innocent individuals nor must it violate the non discriminatory principles that underly the American constitution.

Nigeria is striving to build a democracy. Our history is steeped in a variety of authoritarian excursions of sometimes frightening extents. President Buhari is quite conversant with that history. He has the singular distinction of being easily the prime author of the most draconian chapter in the history of human rights abuses by the Nigerian state in history to date.

It is a chapter in which national security was mystified, degraded and routinely abused. It became a myth that was conjured by state minions to justify horrendous violations of the rights of innocent people.

Crating and boxing citizens in foreign lands for repatriation as cargo to face trial, routine public executions of citizens for criminal infractions , gagging of the Press and jailing of factful journalists as well as lengthy prison terms handed down by kangaroo tribunals fell under ‘national security’.

National memory can forgive. It never forgets. Therefore, Nigerians have difficulty in trusting even a democratically elected president, let alone a Mr. Buhari, to invoke national security to justify acts of state that could violate individual rights and freedoms. Justifiably, the burden of distrust weighs heavy on this land.

Even then, it is our collective subornation to the constitution as ultimate law that makes us citizens of a republic. On a scale of supremacy therefore, national security as defined by any one particular sovereign remains inferior to the eternity of individual rights and freedoms guaranteed by law as deriving from the constitution.

•Dr. Chidi Amuta is a member of Thisday Editorial Board.