GUEST COLUMNIST BY FEMI FALANA
From 1984 to 1999, I was subjected to constant harassment by the security and intelligence community in Nigeria. Not for posing any threat to national security or for contributing to the economic adversity of the country. But for teaming up with other patriotic forces to challenge unbridled corruption, unabashed executive lawlessness, gross human rights abuse and other illegal activities which subverted national security and endangered the welfare of the people of Nigeria under successive military regimes.
The refusal of the civilian wing of the political class to demilitarize the polity there has unwittingly triggered debate over the primacy of national security over 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 the rule of law the political system has enthroned the rule of might or rule of rulers. 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 realize that national security takes precedence over national security. 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.
In striking a balance between national security and rule of law in a democratic setting I intend to review physical security, social security, human rights, the management of national security by security agencies and the subversion of national security by the government. Since State security is often confused with government security it is germane to explain the two concepts. I shall conclude by making a case for the enforcement of the socioeconomic rights of the masses as our country cannot have national security without social security.
On July 17, July 2018, President Mohammadu Buhari had the rare privilege of participating in the activities marking the 20th anniversary of the International Criminal Court. On that auspicious occasion the Nigerian leader assured the international community that “our cooperation with the Court is borne out of our strong belief in the respect for the rule of law and human rights…” On the basis of such assurance from the President we are compelled to review the disturbing culture of disobeying court orders by officials of the federal and state governments under the current democratic dispensation. I want to believe that the President is not unaware of the respect for human rights is the fundamental basis of a democratic society that is genuinely committed to the consistent implementation of the rule of law.
Human rights are indeed the basic building blocks that governments must cultivate in order to have an effective relationship with the general population. The extent that the protection of these rights is guaranteed signifies the democratic strength of a country. Indeed, human rights and the rule of law are crucial to the well being of any truly democratic society. These rights include not only civil and political rights but also economic, social and cultural rights. They are articulated and entrenched in national constitutions and the Charter of the United Nations, the Universal Declaration of Human Rights and other human rights treaties to which Nigeria has subscribed.
Human rights, the rule of law and democracy are interlinked and mutually reinforcing: they are part of the universal values and principles espoused by the international community. Nevertheless, it must be noted that since the birth of the human rights movement in the mid-twentieth century, the promotion of human rights and the rule of law has been seen as competing with or even compromising core issues of national security. Promoting human rights is now frequently viewed as a luxury, to be pursued when the government has spare diplomatic capacity and national security is not being jeopardized. In Nigeria, there is a continuing tension between national security and respect for human rights. While human rights and the rule of law are concerned with limitations on state power, national security, by contrast, is intertwined with assertion of state power. The result of this has often been the marginalization of human rights in the name of national security by successive governments. The subordination of human rights to national security has been a permanent feature of Nigeria’s political history. More than anything else, high level official corruption (and associated human rights violations) poses a major threat to national security, human security and individual human rights in Nigeria.
As recent experience has shown, it is problematic to place the security of the state entirely above the interests of individual citizens. Placing security concerns in direct opposition to human rights creates a false dichotomy. Each is essential for ensuring that a society is both “free” and “secure.” Privileging one over the other can have unintended negative consequences. 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 recognise that it can be difficult to find a balance between ensuring national security on the one hand, and preserving human rights and the rule of law on the other. Nevertheless, I firmly believe that both security and human rights can fully coexist and are absolutely necessary to prevent breakdown of law and order. The interdependence between national security, human security, individual freedoms and democracy cannot be over-stressed. In democratic societies human rights are at the core of national security itself. I posit that the purpose of national security should be to protect democracy and enhance democratic principles.
A conception of national security, which sees the threat as not merely encompassing the personal security of citizens but also the good order of political institutions, necessarily leads to a view of the democratic state as both protector against, and contributor to, the threat. In the latter regard, the cry of ‘security’ often functions politically “as a sort of intellectual curare,” permitting the executive to stifle criticism, maintain political orthodoxy, and prevent debate by claiming knowledge — which cannot be revealed — to support what are essentially arbitrary political initiatives.It has been argued that “men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law” According to this assumption, the basis for any national security policy must be grounded in a deep respect and consideration of human rights and the rule of law. These values and principles are well entrenched in the Constitution, and articulated in international human rights treaties to which Nigeria is a state party. Therefore, the government has a legal responsibility to preserve and promote all human rights as well as the rule of law. Undermining these fundamental values would go in the direction wished by those whose aim is to destroy democracy through the use of violence in its most inhuman form.
It must however be pointed out that international human rights treaties such as the International Covenant on Civil and Political Rights to which Nigeria is a state party provides for exceptional circumstances in which certain rights ie under article 12 on freedom of movement may be restricted. This provision authorizes the State to restrict these rights only to protect national security, public order (ordre public), public health or morals and the rights and freedoms of others. However, to be permissible, restrictions must be provided by law, must be necessary in a democratic society for the protection of these purposes and must be consistent with all other rights recognized in the Covenant. In General Comment 27, (adopted in 1999) the Human Rights Committee, a body established pursuant to the International Covenant on Civil and Political Rights, stated that the law itself has to establish the conditions under which the rights may be limited. Restrictions which are not provided for in the law or are not in conformity with the requirements of the Covenant would violate human rights. According to the Committee:
“In adopting laws providing for restrictions permitted by the Covenant, States should always be guided by the principle that the restrictions must not impair the essence of the right ; the relation between right and restriction, between norm and exception, must not be reversed. The laws authorizing the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution. It is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them”.
As suggested above, advancing human rights must be a central pillar of Nigeria’s national security policy. Rather than being competing goals, human rights and national security are in fact complementary. National security could be enhanced by a greater emphasis on the promotion of human rights. Since human rights provide the basis for social interaction in democratic societies, they must be protected. The cost of living in a society that human rights are not protected could not be justified by anything. The cost would be too high. I must make this additional point: Nigeria’s democracy must strive to meet three objectives of ensuring the rule of law; striking a balance between the short term and the long term, and between the individual and the community; and protecting the rights of minority groups. I will explain very briefly each of these objectives. First, the rule of law. Good Governance requires the rule of law. Having good laws on the statue books is not enough. Laws must be implemented and enforced fairly and consistently in a transparent way or they risk becoming dead letters or, worse, instruments of oppression. There must therefore be some separation of powers and an independent judiciary. Furthermore, corruption is a long standing problem that has to be combated.
Second, a balance must be struck between the short term and the long term, and between the interest of the individual and the interest of the community. Electoral politics put pressure on governments to respond quickly to the needs of voters. Nobel laureate Dr. Amartya Sen pointed out that famines in India have become a phenomenon of the colonial past because Indian politicians today know they would be thrown out of office if they did not respond quickly to food shortage. All this is good but the problem with electoral politics is that the time horizon of political leaders shortens and pandering to the demands of special interest groups may be unavoidable. Larger and longer term considerations are often set aside as politician concentrate on winning the next elections. A democratic system which creates a good balance between the short term and the long term, and between the individual and the community, will be better able to achieve respect for human rights and security. Third, we must protect the rights of minority groups. No country on earth is homogeneous. Nigeria must be very sensitive to the protection of minority rights.
Democracy is, therefore, a means to achieve better governance, never an end in itself. What is important is to put human beings living in communities at the heart of women, children, physically challenged persons and other vulnerable groups in the society. The word ‘demos’ referring to people has as its specific context of people living in community. We associate counting votes with democracy but there are so many ways to structure a voting system which can lead to very different outcomes. Democracy should always be structured to facilitate good governance, never to make it harder. However, as the global environment changes, as technology changes, our system has to evolve in tandem. For example, with the growing number of Nigerians living overseas, we must find ways to enfranchise them. Maintaining a sense of belonging to a larger Nigerian community is essential. Without voters feeling a sense of commitment to one another, a democratic system cannot work well. In summary, the Nigerian government must comply fully with its national and international legal obligations to uphold human rights in all its actions so as to ensure security through the crucial protection of human rights and the rule of law. The government must demonstrate the commitment in deed and not merely in words to respect the rights and freedoms of citizens and to promote human rights. It is absolutely important that any measures limiting human rights are in compliance with international law.
The government should re-commit itself to the achievement of the Millennium Development Goals as a means of addressing underdevelopment and preventing the marginalization of many in the country. There is also the need for a strong and effective mechanism whether within the National Assembly or civil society to oversee executive action, including when they vote on the budget and monitor its implementation, to ensure that a balance is struck between national security, human security and individual freedoms, and to avert any threats to democracy. National security must be reduced to its absolute minimum — what I call a democratic conception of national security. The use of extraordinary measures in the name of national security for any other purpose should therefore be discouraged. Nigeria’s national security institutions must be effectively regulated and made accountable. The government must adopt broad-ranging measures geared to develop an effective institution with an appropriate organizational culture for a democratic society as well as the direct and mandatory involvement of the National Assembly in after-the-fact review. In the final analysis, it is essential to place further legal limitations on government’s use of special national security measures.
For several years after independence the central pillar of Nigerian national security was the safeguarding of the “sovereign, independence and territorial integrity of the State”. A former Inspector-General of Police once stated that “national security entails the measures, facilities and systems put in place by a nation to secure its citizens and resources from danger and the risk of infiltration, sabotage, subversion or theft etc.” But to a group of civil society organizations the term ‘national security’ implies “the absence of threat to life, property and socio-economic wellbeing of the people”. The latter view tallies with Section 14(2)(b) of the 1999 Constitution which states that “the security and welfare of the people shall be the primary purpose of government; and the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution” Since the security of the government in power is always equated with national security the police and security agencies have concentrated their attention on monitoring the activities of human rights activists and opposition figures in the country. In the circumstance, the police and security agencies have been unable to foil illegal take-over of government, through coup de tat and rigging of elections, kidnapping, hostage taking, religious riots and civil disturbances which have continued to threaten national security.
Following the dissolution of the National Security Organization (NSO) in 1986 three national security agencies were established namely the State Security Service, the Defence Intelligence Agency and the National Intelligence Agency pursuant to the National Security Agencies Act. Section 2 thereof provides that the Defence Intelligence Agency shall be charged with the responsibility for the prevention and detection of crime of military nature against the security of Nigeria while the National Intelligence Agency is concerned with the general maintenance of the security of Nigeria outside Nigeria concerning matters that are not related to military issues. The duty of the State Security Service is the prevention and detection within Nigeria of any crime against the internal security of Nigeria. Other agencies of the State in charge of the maintenance of law and order include the police, armed forces, customs, immigration and prisons. Realizing that the law enforcement agencies are ill-equipped to fight certain criminal activities in the society a number of specialized agencies have also been established by the State. They include the Nigeria Drug Law Enforcement Agency, (NDLEA), the Federal Road Safety Commission (FRSC), the Independent Corrupt Practices and Other Related Offences Commission (ICPC) the Economic and Financial Crimes Commission (EFCC) and the National Food, Drug and Administration Council (NAFDAC) etc.
It is pertinent to note that each of these agencies may be conferred with additional responsibilities affecting national security as the President may deem necessary. On many occasions the illegal directives of Chief Executives of the federal or state government have been religiously enforced by the Police and security agencies to the detriment of national security. Some of the security agencies have suo motu abused the human rights of citizens under the pretext of defending state security. I have just confirmed that Mr. Lawal Musa Daura, the immediate past Director-General of the State Security Service engaged in the reckless subversion of national security by detaining hundreds of people without any legal justification. Just two weeks ago, my law firm secured the liberty of a Nigerian journalist, Mr Jones Abiri who was held incommunicado for two years. In fact, at the height of his uncontrolled impunity the fellow dispatched masked security operatives to take over the national assembly.
Although it shall be the duty of every organ of the Government to conform to, observe and apply the Fundamental Objectives and Directive Principles of State Policy their violations by the government and its officials. But the Appropriation Laws which require the government to create jobs, reduce poverty and provide infrastructural facilities for the society are violated as budgets are partially implemented while public funds are diverted and cornered by many unpatriotic public officers. Those who engage in such crimes against the people are treated like sacred cows by law enforcement agencies. A few of them who are charged with the criminal diversion of public funds are shielded from prosecution by some senior lawyers. Meanwhile the poor who are driven to criminality by an unjust socioeconomic system are convicted and sentenced to lng years of imprisonment or executed for armed robbery.
With respect to the economic wellbeing of the people the Constitution has imposed a duty on the State to guarantee “the maximum welfare, freedom and happiness of every citizen on the basis of social justice, and equality of status and opportunity.” To this effect, the State shall direct its policies towards ensuring that “the material resources of the nation are harnessed and distributed as best as possible to serve the common good” and that “the economic system is not operated in such manner as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or of a group.” In order to ensure good governance and public accountability the State is under an obligation to abolish “all corrupt practices and abuse of power.” Apart from the duty imposed on all citizens to “render assistance to appropriate and lawful agencies in the maintenance of law and order” it is the obligation of the mass media to “uphold the responsibility and accountability of the Government to the people. To eradicate illiteracy and ignorance Government shall, as and when practicable provide “(a) free compulsory and universal primary education; (b) free secondary education; (c) free university education and (d) free adult literacy programme.” It is also the duty of the State to protect children, young persons and – the aged against any form of exploitation whatsoever and against moral or material neglect.
Mr. Bill Gates, the co-chair of Bill and Melinda Gates Foundation was a guest of the federal government at the recently concluded expanded meeting of the National Economic Council in Abuja. In his well-publicised address at the forum Mr. Gates criticised the neo-liberal foundation of the economic programme of the Government of Nigeria. While reeling out facts and figures on the state of underdevelopment of the nation the special guest made a strong case for increased investment in the welfare of the Nigerian people by all the chief executives of the federal and state governments. In particular, he urged the governments to make the people the corner stone of its economic programme by investing in education, health and other social services. Not a few people including some former public officers have commended Mr. Gates for speaking truth to power! But far from it, the speech was a friendly admonition to the members of the ruling class in Nigeria. Having invested $1.6 billion in promoting the health of the most vulnerable segment of the population since 2006 the locus standi of Mr. Gates to challenge the economic programme of the Government cannot be questioned. Gates has put his money where his mouth is, as they say.
His solidarity message was a critical commentary on the economic programmes of the previous and current governments which have abandoned the welfare policies enshrined in the Fundamental Objectives and Directive Principles of State Policy embodied in the Chapter II of the Constitution of the Republic. Therefore, Mr. Gates’ criticism of the economic programme of the Buhari administration is valid for all the economic programmes of the previous governments, which have handed over the national economy to market forces at least in the last 35 years. It is, therefore, the lack of proper appreciation of the ideological thrust of the message that has led some commentators to conclude that Mr. Gates has merely criticised the EPRG of the current administration. But contrary to such reductionist distortion, Mr. Gates’ speech is a summary of the struggle, which has been relentlessly waged by progressive forces against the anti-people’s policies of successive governments in Nigeria since the Structural Adjustment Programme (SAP) was imposed on the nation by the Ibrahim Babangida military junta. Even the World Bank and the International Monetary Fund (IMF) who didn’t emphasise the social costs of adjustment in the 1980s are now subtly drawing the attention of government burgeoning poverty, which is a consequence of their socially ruinous policies.
It is unfortunate that some of those involved in economic management are still enamoured with neo-liberalism, which callously discounts human welfare policy mix. But when IMF and World Bank caution against poverty, our market forces fundamentalists in policy chambers should at least be worried their policies which do make education and healthcare as priorities. It was on account of the struggle of the Nigerian people that the federal government has been compelled to enact some welfare laws for the actualisation of the socio-economic rights of the Nigerian people. Some of the laws include the People’s Bank Act, Nigerian Education Bank Act, Pension Reform Act, Free, Compulsory Universal Basic Education Act, Child’s Rights Act, National Health insurance Act, National Health Act, and Immunisation Act etc. But, sadly, the federal government has consistently breached the provisions of these welfare laws. As if that is not enough, the several court judgments delivered in cases filed by human rights activists which have directed the federal government to implement the provisions of such laws have been treated with disdain. Indeed, the crisis of underdevelopment of the country has been compounded by the anti-welfarist policies of majority of the state governments. For instance, the Child’s Rights Act, which provides for compulsory and free education for every child from primary to junior secondary school, has been adopted by all the 17 states in the South and only eight out of the 19 states in the North.
It is not surprising that terrorists and other armed bandits have continued to recruit from the large army of children who have been denied access to basic education in several states in the country. Instead of providing fund for public schools the governments have continued to encourage the establishment of private schools for the education of the children of the elite. Whereas 2% of the consolidated revenue fund of the federal government is contributed to the Universal Basic Education (UBE) Fund annually in line with Section 2 of the Free, Compulsory Basic Education Act, majority of the state governments have refused to contribute counterpart fund to enable them to assess the UBE Fund. Hence, billions of Naira is laying waste in the UBE account in the Central Bank while millions of children are roaming the streets. According to the UNICEF report of 2012, Nigeria had 10.5 million children who were out of school. That was the highest figure in the world at the material time. The figure has since increased geometrically.
Yet, all the governments have refused to comply with the judgments of the ECOWAS court and the federal high court, which have mandated them to provide every child with basic education. Our appeal to the Police Authorities to arrest and prosecute parents and guardians, who refuse to allow their children and wards to acquire basic education, has fallen on deaf ears. The story is the same with respect to the provision of basic healthcare for the people. As public officers and their family members are flown abroad for medical treatment in foreign medical centres the people are left to die in ill-equipped hospitals in the country. The federal government has failed to implement the provisions of the National Health Insurance Scheme Act and the National Health Act. Some highly public officers indicted for looting the account of the National Health Insurance Scheme have been given a clean bill of health. Even though the National Health Insurance Scheme Act was enacted in 1999, only four out of the 36 state governments have adopted it. Following the failure of the federal and state governments to implement the Immunisation Act, the Bill Gates Foundation and Dangote Foundation have taken over the duty of ensuring that our children are immunised.
Preventable diseases like polio, meningitis, Lassa fever and others are ravaging the populace without any meaningful intervention from the governments. It is common knowledge that the scourge of HIV/AIDS persists in the country due to the failure of the governments to provide anti -retroviral drugs for the victims. In 2014, the sum of $30 million donated to the federal government by some development partners to fight the scourge was stolen by a handful of officials in the federal ministry of health. Since the federal government has refused to recover the fund and prosecute the indicted criminal elements the development agencies have suspended the provision of more fund to acquire drugs to fight the menace of HIV/AIDS in Nigeria.
In its reaction to Mr. Gates’ speech the federal government assured him of the commitment to invest in human capital development. Beyond such assurance the federal government should review the EPRG with a view to providing sufficient fund for education, health and economic empowerment of the people. The authorities of all state and local governments should be involved in the review of the national economic programme. Meanwhile, we are compelled to urge the state governments to adopt and implement all the welfare laws that have been enacted by the federal government. Since the federal government has undertaken to operate under the Rule of Law we call for immediate compliance with the judgments of the ECOWAS court and the federal high court on the welfare of the Nigerian people. Accordingly, we have, once again, served the certified true copies of the said judgments on the Attorney General of the Federation.
Since democratic rule was restored in Nigeria in May 1999, members of the ruling class have continued to treat court orders with contempt due to lack of understanding of the essence of the rule of law in a liberal democratic dispensation. Our courts had cause to condemn the illegal use of the police and other security forces to rig the 2003 and 2007 general elections by the Olusegun Obasanjo administration. Not too long ago, the worst case of contempt of court took place in the history of Nigeria when President Olusegun Obasanjo defied the order of the Supreme Court to release the statutory allocations of the 20 local governments in Lagos State which had been seized following the creation of additional local governments. Vice President Yemi Osinbajo, who was then the Attorney-General of Lagos State, tried, in vain, to ensure that the order of the Supreme Court was obeyed by the federal government.
But upon his inauguration in 2007, the late President Umoru Yaradua rightly purged the federal government of the contempt of court by ordering the immediate release of the withheld funds. Regrettably, the same government and others have disregarded the orders which have serious implications for the welfare of the masses have been ignored. Specifically, the Federal Government has refused to carry out the order of the Court of Justice of the Economic Community of West African States (ECOWAS Court) made in 2009 that every Nigerian child be given quality education as well as the order of the Federal High Court made in 2012 that the scrapped Peoples Bank be re-established to give loans to underprivileged citizens. Even the order of the Federal High Court made in 2016 directing the Federal Government to account for the stolen funds recovered since 1999 has not been complied with.
It is common knowledge that the Attorney-General of the Federation, Mr. Abubakar Malami SAN has said that Colonel Sambo Dasuki (rtd), Sheik Ibraheem Elzakzaky and his wife, Hajia Zenab Elzakzaky would not be released from custody in defiance of the valid and subsisting orders of municipal and regional courts. While the attention of the print and electronic media has been focused on the three privileged citizens it is hardly realized that there are many other “common people” who are languishing in custody due to official disobedience of the orders of courts which have set them free. And since judgment creditors are prohibited from levying execution on the funds belonging to the Government without the fiat of the Attorney-General, the Federal Government and the various state governments usually refuse to authorize the payment of damages running to several billions of Naira awarded by courts in favour of many citizens and institutions. It is painful for me to recall that military dictators did not openly defend disobedience to court orders under the pretext of protecting national security. At this juncture it is pertinent to review the attitude the defunct military regimes to court orders
In January 1966, the Constitution was suspended while fundamental rights were put in abeyance by the military junta which sacked the Tafawa Balewa administration. To justify the detention of citizens without trial the Aguiyi Ironsi regime issued individual detention orders for detainees. But the Yakubu Gowon regime discarded the practice and promulgated the State Security (Detention of Persons) Decree no 24 of 1967. The decree was grossly abused as critics like Wole Soyinka, Gani Fawehinmi, Aper Aku, Air Iyare, Tai Solarin etc were detained without trial. Despite the fact that the country was under the jackboots the courts never hesitated to order the release of several persons whose detention was found to be patently illegal.The locus classicus during the era was the case of Agbaje v Commissioner of Police (1967) NMLR 65 wherein Akinola Aguda J. (as he then was) struck down the detention order and released the applicant, who was then the lawyer of the Agbekoya farmers in the western region. The judgment was upheld by the Western State Court of Appeal which commended the trial judge for treating the matter with admirable dispatch and exceptional courage.
While the Murtala Mohammed regime never detained any person under the preventive detention decree the Olusegun Obasanjo regime invoked it to detain some progressive lecturers, student leaders, trade unionists and other critics of military dictatorship. But following the termination of military rule in 1979 the fundamental rights of citizens were restored. Consequently, the courts regularly ordered the release of citizens who were detained illegally and awarded damages to them in deserving cases. However, when the Shehu Shagari administration was illegally sacked in December 1983, the Buhari/Idiagbon military junta enacted the State Security (Detention of Persons) Decree no 2 of 1984. The decree was recklessly used by the National Security Organisation (now State Security Service) to detain hundreds of citizens without trial.
For my involvement in the defence of the late Fela Anikulapo-Kuti in a criminal case, I was illegally arrested and incarcerated for six weeks in 1985 under the obnoxious Decree No 2. But notwithstanding the illegality of my detention and the fact that it was General Buhari that had promulgated the decree I was able to convince my colleagues in the human rights community to demand for his release and that of his deputy, the late General Tunde Idiagbon from detention. It is on record that based on our intervention the Ibrahim Babangida junta released the duo after 3 years of detention without trial. Scores of other politicians and activists were detained during the military era. But there was not a single case where the order of a court for the release of any detainee was ignored. In fact, the defendants who were granted bail by special military tribunals and criminal courts were released once they met the bail conditions. For instance, the four pro-democracy activists and I who were arraigned on the frivolous charges of conspiracy and treasonable felony at the Gwagwala Chief Magistrate Court on May 19, 1992 for purportedly planning to overthrow the Ibrahim Babangida junta were admitted to bail. Despite the gravity of the charges we secured our liberty as soon as we met the bail conditions imposed by the trial court.
However, it is on record that apart from the area of civil liberties, successive military regimes treated court orders in many other matters with disdain. Fortunately for the country, the courts took up the challenge of defending the rule of law. As a matter of fact, the epochal judgments of that era were reviewed in Professor’s Itse Sagay’s book on “Legacy for Posterity: The Work of the Supreme Court (1980-1988)”. One of the judgments reviewed in the book is that of the Military Governor of Lagos State v. Chief Emeka Ojukwu (1986) 1 NWLR (P 18) 621 at 627 wherein the Supreme Court noted that “in any country where the rule of law operates, the rule of self-help by force is abandoned. Nigeria being one of the countries in the world even in the third world which proclaim loudly to follow the rule of law, there is no room for the rule of self-help by force to operate”. Similarly, in Garba v. F.C.S.C. (1988) 2 NWLR (PT 88) 449 at 454 the Supreme Court observed that “The military in coming to power is usually faced with the question as to whether to establish a rule of law or rule of force. While the latter could be justifiable a rule of terror, once the path of law is chosen the mighty arm of government, the militia which is an embodiment of legislature and executive must in humility bow to the rule of law thus permitted to exist. The rule of law knows no fear, it is never cowed down, it can only be silenced. But once it is not silenced by the only arm that can silence it, it must be accepted in full confidence to be able to justify its existence.”
Encouraged by such progressive stand of the judiciary in defending the rule law under the jackboots the Nigerian Bar Association (NBA) kicked against disobedience of court orders by the military regimes. This was amply demonstrated by the NBA under the leadership of the late Comrade Alao Aka-Bashorun in 1988 when Nigerian lawyers were directed to boycott all courts to protest the disobedience of a single court order in the former Gongola State. Incidentally, Mr. Boss Mustapha, the current Secretary to the Government of the Federation was the local Chairman of the Yola branch of the Nigerian Bar Association at the material time. Regrettably, the NBA has since become so comfortable with the subversion of the rule of law that it now blows muted trumpets when several court orders are disobeyed by highly placed public officers under the current political dispensation. But bit is a doctrine which is always applied during wars ar emergency situations.
DISOBEDIENCE OF COURT ORDERS BY ELECTED GOVERNMENTS
The statement made by President Buhari that the liberty of individual citizens has to give when it comes into conflict with the security of the State cannot be disputed. It has been captured in the legal maxim of salus populi suprema lex. But in Agbaje v. Commissioner of Police (supra) the learned trial judge dwelt in extenso on the doctrine when he said “…it is clear that in the process the courts have a vital role to play in fact it is partly for the resolution of such conflicts that the Courts of the land have been established. If the resolution of such a conflict is left in the hands of any arm of the executive e as in this case where the power to put a citizen in custody for no proved offence is left at the discretion of the Inspector-General of Police by an Act of the Legislative body, then the role left for the Courts to perform is to make sure that the Inspector-General of Police conformed strictly with the enabling legislation. Once I am satisfied that he conformed with the provisions of the Act,, and also that persons carrying out his orders likewise conformed with those provisions. I do not conceive that it is part of my duties to inquire at any rate in this suit, whether Decree No. 24 is valid or not.”
It is submitted that it is the exclusive duty of the courts under a democratic dispensation to interpret the Constitution and other laws. The executive organ of government cannot detain citizens for security reasons and disregard the orders of the court for the release of such persons if it is found that the detention has nothing to do with national security. However, it has to be conceded that under a democratic dispensation the fundamental rights of individuals may be suspended in certain circumstances. Hence, section 45(1) provides that “Nothing in sections 37,38,39,40 and 41 of this Constitution shall invalidate any law that is reasonably justificable in a democratic society:(a) In the interest of defence, public safety, public order, public morality or public health; or (b) For the purpose of protecting the rights and freedom of other persons.” In Dokubo-Asari v. Federal Republic of Nigeria (2007) 30 WRN 1 at 45 the Supreme Court recognized the priority of national security over the personal liberty of individual citizens. According to Tanko Muhammed J.S.C.
“The pronouncement of the court below is that where National Security is threatened or there is the real likelihood of it being threatened human rights or the individual right of those responsible take second place. Human rights or individual rights must be suspended until the National Security can be protected or well taken care of. This is not anything new. The corporate existence of Nigeria as united, harmonious, indivisible and indissoluble sovereign nation, is certainly greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist.”
It is common knowledge that disobedience of court orders is not uncommon in some democratic countries. But it is the duty of every government which is committed to the defence of the rule of law to ensure that court orders are complied with by all authorities and persons. It was such fidelity in the rule of law that compelled President Dwight Eisenhower in the fall of 1957 to place 10,000 the members of Arkansas National Guard under federal control and dispatched 1000 United States Army Paratroopers to assist them in enforcing the judgment of a federal court for the admission of nine black students to the Central High School, Little Rock, Arkansas. The ruling was anchored on the judgment of the Supreme Court in the celebrated case of Brown v Topeka 347 U.S. 483 (1954) which had abolished segregation in public schools in the United States. In justifying his action, President Eisenhower said that “the very basis of our individual rights and freedoms rests upon the certainty that the President and the Executive Branch will support and insure the carrying out the decisions of the Federal Courts, even, when necessary with all the means at the President’s command.”In the light of the foregoing, the federal government has as duty to take urgent and decisive measures to put an end to the disobedience of court orders by many public officers and institutions. Since section 287 of the Constitution has imposed a binding obligation on all authorities and persons in Nigeria to comply with the decisions of competent courts, public officers who subvert the rule of law ought to be sanctioned. Furthermore, in view of the fact that President Mohammadu is the current Chairman of the Economic Community of West African States the Federal Government should show leadership by example by complying with all the judgments of the regional court without any further delay.
Our experience has shown that the rule of law is violated by the federal and state governments as well as powerful individuals in the society through the following acts of impunity:
(i) Deliberate breach of the provisions of the Constitution and other extant laws;
(b) Compromise of the investigation of criminal cases by law enforcement agencies;
(c) Refusal of Attorneys-General to prosecute indicted criminal suspects, and
(c) Disobedience of court orders.
The aforementioned acts of sabotage of the rule of law are carried out by the highly placed agents of impunity with the active connivance of lawyers. Experience has shown that governments are given legal advice by Attorneys-General while the rich and powerful people are advised by senior lawyers to comply with the provisions of the law or the decisions of the courts. Regrettably, the Nigerian Bar Association has failed to sanction the activities of Attorneys-General and senior lawyers who engage in the subversion of the rule and national security.
A few months ago, I was compelled to request the NBA leadership to sanction some state Attorneys-General for their failure to charge the scores of suspects who had been indicted for culpable homicide or murder to court. The NBA did not even acknowledge the receipt of the letter not to talk of acceding to my request. I was not taken aback having regards to the fact that the national conferences of the NBA and the election of its national officers are largely bankrolled by governments. If this conference is interested in ending impunity in the country it must start with the NBA. In other words, we must put our house in order. This conference must resolve to reorganize the NBA. A law society which engages in fraudulent election of its officers via e-voting lacks the moral capacity to condemn electoral malfeasance perpetrated by the political class.