The people must be invited to participate in defining their national interest, argues Kingsley Ogbonda
The speech of President Buhari at the Nigerian Bar Association (NBA) conference in Abuja on 26 August 2018 attracted much furore in the Nigerian press. The president had suggested in his speech that in some circumstances national interest should take primacy over the rule of law. I found most of the commentaries in response to the president’s speech fascinating, a bit reminiscent of undergraduate tutorials in jurisprudence.
If this article has been a bit delayed in joining the discussion on what the president said, it is because of a self-imposed restraint in commenting about his administration. But having considered the subject of discussion too important to simply watch it being coloured by political prejudices and narrow interpretations, I feel I should comment.
The purpose of this article is therefore to examine the meaning of ‘’the rule of law’’ and to consider the circumstances, if any, that may give rise to its derogation, or when it might be relegated below national interest as the president suggested.
What is ‘’the rule of law’’? I quote: No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgement of his peers or by the law of the land’’ – Article 39, Magna Carta (1215). Magna Carta is the earliest known established body of rights of citizens for protection against the state. The rule of law has its origin in Magna Carta. It is not a set of platitudes, but one of the fundamental principles on which a civil government is based.
In his article on 28 August 2018 in THISDAY, Dr.Reuben Abati provided Prof. Albert Venn Dicey notions of the rule of law as told in 1885. This is perhaps, a good place to progress with the discussion on the rule of law, as Dicey was exponent of this very British export to liberal democracies. I will provide the abridged version of his notions of the rule of law or as some call them, the working principles. They are; firstly, that the individual must not be punished arbitrarily but by a breach of law which are known and defined by ordinary courts. Secondly, that there must be the equality of all before the law. Every individual must have equal subjugation to the law. No one should be above the law. Again, it is for the ordinary courts to ensure that this happens. Thirdly, fair access and evenly enforced law. Fourthly, is the requirement of competent and independent lawyers and judges. The rule of law is not subject to the whims of rulers. It is the duty of the courts to interpret laws and not the rulers.
Dicey notions of the rule of law have not been without its critics. The criticisms have often been by way of highlighting the exceptions to the rule. Before considering some of those exceptions to the notions, it is worth restating the underlying values of the rule and their importance. The underlying values of the rule of law are; due process, fair access to justice, consistency, transparency, honesty and equality of opportunities. Discussions about the rule of law outside the context of its underlying values are facile. The question that must be answered in Nigeria and by any society that wishes to be taken seriously as operating under the rule of law is, how prevalent are these underlying values of the rule of law in that society?
We have noticed from the established notions of the rule of law that the judiciary (courts) and access to them are critical in ensuring that the rule of law is upheld. As the president of the British Supreme Court, Lord Neuberger in his lecture on 15 October 2013, titled – Justice in Age of Austerity said; access to justice has a number of components. These in brief are; a competent and impartial judiciary, accessible courts, properly administered courts, a competent and honest legal profession, an effective procedure for getting a case to the court, an effective legal profession, effective execution of judgement and affordable justice. Sadly, in Nigeria no organ of the state has played a more sinister role in subverting the rule of law than the judiciary. Our judges have acquired notoriety for delivering perverse judgements. Criminally minded lawyers in cahoots with bent judges routinely use spurious arguments to delay and frustrate court hearings. Procedural impropriety is common place in the Nigerian judiciary. This is why election riggers dare their opponents to challenge them in courts, in the safe knowledge that favourable court verdicts always await the highest bidders. It is only in Nigeria that a judge would boldly grant a perpetual injunction against a legally established investigative body from interrogating a person for a possible gross economic crime. The toleration of this absurdity has now become a hindrance to the work of the Economic and Financial Crimes Commission (EFCC). It’s become a common practice for most politically exposed persons invited for questioning by the EFCC to apply to a court for an injunction in the hope of getting a compliant judge who would at a price grant them their request. The sordid behaviours of our courts are most acute in disputed election cases.
The delaying of adjudication of elections disputes have caused those duly elected often assuming their offices later than expected. The poor reputation of the Nigerian judiciary is better gauged in the lower ranks of the society where the common people have lost hope of getting justice in courts. For the rule of law to have a meaning in any society its arbiters must be of unimpeachable characters interested in dispensing substantive justice. It is a fact that a society that operates under the rule of law ensures that it also serves the interest of justice. If we engage in endless debates about the rule of law while ignoring its intrinsic values, we would not only debase the word but help to perpetuate the injustices in our society.
It is conceivable that President Buhari at the NBA conference had in mind exceptions to the rule of law by suggesting that in some circumstances the national interest should trump the rule of law. Unfortunately, he failed to elaborate on the circumstances he had in mind. Perhaps, the president had in mind that on the instance of a conflict between the rule of law notions and the immunity provision in the constitution, the national interest should guide the court’s decision? The immunity clause which exempts the executive from suffering any detriment due to acts committed in official capacity is accepted as necessary for a functioning democracy, but it’s liberal and erroneous interpretation by our courts has been ceased upon by governors as legal protection for stealing. Having considered corruption as an existential problem, Buhari is riled by the courts cavalier attitudes in dealing with official rogues. For the president, the protection of public assets should take precedence over the rule of law. If this was in his thought he has a point. The immunity clause is about protecting those genuinely interested in democratic ideals and not about legalising stealing.
Rebellions, emergencies or breakdown in law and order have caused nations to suspend habeas corpus, an integral part of the rule of law. Habeas corpus is the common law right of individuals requiring that – no individual should be held against their will for an unknown amount of time without a reason behind their detention. An exception to this principle was provided by the American constitution. Article 1, Section 9 states, ‘’the privilege of the writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety requires it’’. Since then there have been few instances when for public and national safety habeas corpus have been put under pressure, including the UK, Prevention of Terrorism Act – 2005, which allows for the detention of those suspected of engaging in terrorist activities. It must be added, none of these decisions to restrict habeas corpus have ever been taken lightly. If President Buhari wants to detain people and seek the courts support, he must make a strong patriotic case for it. The definition of national interest is not the exclusive preserve of a president. The people must be invited to participate in defining their national interest.
Ogbonda wrote from London