Did we just read that president Muhammadu Buhari told lawyers
that if you put national security side by side with the rule of law, that
national security comes first?
*Buhari |
This is
an unmitigated assault on constitutional democracy which must not be allowed to
be swept under the carpets because it is manifestly erroneous and obscenely
illegal. His resort to holding on to a so called supreme court’s decision which
he refused to disclose the particulars makes the entire claims puerile,
spurious, unbelievably shallow and therefore a nullity to the extent of its
inconsistency. Shamefully, the lawyers sat down as the head of the executive
arm of government embarked on this one man show of intellectual shame. The
President has wounded the truth and must be corrected with all the speed that
can be mustered. We will first determine the essence of constitutionalism which
is the be all and end all of the form of government in practice in Nigeria without
which there would be formlessness.
Can I therefore state here and now that the essence of constitutional democracy is defined from the prism of prime respect for the principle of rule of law because if you make law secondary over and above any other thing, what will inevitably come out of this obscene marriage is illegality. National security is a child of the law and not the other way round. National security just like the concept of nationalism is only but a part and not the whole but the law encapsulate the whole. The law is bigger than the whole so to say. It is within the larger concept and contexts of the law that society is captured.
Can I therefore state here and now that the essence of constitutional democracy is defined from the prism of prime respect for the principle of rule of law because if you make law secondary over and above any other thing, what will inevitably come out of this obscene marriage is illegality. National security is a child of the law and not the other way round. National security just like the concept of nationalism is only but a part and not the whole but the law encapsulate the whole. The law is bigger than the whole so to say. It is within the larger concept and contexts of the law that society is captured.
The
society is what it is because of the law and you can’t speak about national
security without the law. Infact you can’t speak to the issue of the office of
the presidency without first and foremost laying your foundational argument
from the law. The President as the head of the executive arm of government is
not bigger than the law from which his powers and functions are
generated/evolved.
President
Muhammadu Buhari should kindly spare time out of his busy presidential
schedules to school himself in the scholarly works of Dr. Tunji Abayomi titlted
“Constitutional Powers and duties of the president” and read other equally
edifying works even much more elucidating and ennobling than the aforementioned
book by Dr Abayomi which I find too patronising to the holder of the
Presidential office.
Dr
Abayomi made a very interesting, intriguing but valid statement regarding the
essence of the constitution when he wrote thus: “Simple arguments against
the origin and consequent legitimacy of the 1999 Nigerian Constitution
ascertain the validity of its unconstitutionality. For it should be clear that
it is never a government that gives a nation a Constitution, rather it is a
Constitution that gives a nation a government. As a valid Constitution must
take its origin from the consent of the people and be subjected to it only,
when freely given, usually in an uninhibited uniform manner, a Constitution
becomes not an ordinary law and cannot be a law. As it should be clear, an
ordinary law is made by a legislative department, which, in itself, is a
consequence, usually of a Constitution. As to the Constitution, the authority
and source of all valid Constitutions lie in the people themselves.”
Writing
on the title of the decline of the ideal state, one of the most venerated
fathers of philosophy Plato completely faulted the logic of the affirmation by
president Buhari that the law becomes secondary to national security.
Indeed
Plato made us to understand that the law is supreme and must enjoy a prime
position in the affairs of human society.
Hear him:
“The decline of the ideal state if the state is “man writ large,” then, said
Plato, a state will reflect the kind of people a community has become”.
An
analyst offered a profound explanation by asserting that What Plato had in mind
was that although the nature of man is fixed, in that all men possess a
tripartite soul, the kind of men people become will depend upon the degree of
internal harmony they achieve.
“The
state will therefore reflect these variations in human character.”
For this
reason, Plato argued that “constitutions cannot come out of stocks and stones;
they must result from the preponderance of certain characters which draw the
rest of the community in their wake.”
As a
thinker of the most refined mode, Plato also stated as follow: “So if there are
five forms of government, there must be five kinds of mental constitution among
individuals. And these five forms of government are aristocracy. Timocracy,
plutocracy, democracy, and despotism.”
“Plato
considered the transition from aristocracy to despotism as a step-by-step
decline in the quality of the state corresponding to a gradual deterioration of
the moral character of the rulers and the citizens. His ideal state was, of
course, aristocracy.
In
Aristocracy, Plato said the rational element embodied in the
philosopher-king was supreme and where each person’s reason controlled his
appetite.
Plato
emphasized that this was only an ideal. Though significant, nevertheless, as a
target to aim at.
He was
quoted as been deeply disenchanted with politics, particularly because of the
way Athens had
executed Socrates and had failed to produce consistently good leaders.
Plato was
credited with saying that: “As I gazed upon the whirlpool of public life,” he
said, “[I] saw clearly in regard to all states now existing that without
exception their system of government is bad.” Still, the norm for a state is aristocracy,
for in that form is found the proper subordination of all classes.”
Another
vastly respected scholar is the Metropolitan Archbishop of Abuja and the most senior catholic clergy in
Nigeria John Cardinal Onaiyekan who only recently marked over four decades as a
Bishop.
Known for
his high erudition in the universal concept of peace building and conflicts
resolution, Onaiyekan recently penned a beautiful booklet titled: “Thy Kingdom
Come: democracy and politics in Nigeria
today: a Catholic perspective”.
John
Cardinal Onaiyekan rated respect for rule of law and adherence to the time-
tested and time-honoured human rights laws as the most important element of
political leadership in any constitutional democracy.
Hear him:
“Then there is also the issue of the dignity of the human person. Man is an
absolute value in himself, precisely because God has put his Spirit in each and
every human being. (Gen 1:27; 2:7) There is an element of the divine in each
person. This is why no human being has any absolute right over another, nor can
the state claim to own its citizens.”
The top
clergy argued that this is the basis of the famous fundamental human rights
which no one and no state has any right to take away from the individual
citizens.
“Obviously
the individual too has the corresponding duty to live up to his dignity and use
his freedom in the right way so as to ensure good relationship with others who
also have their own rights. There is therefore the inter-relationship between
the absolute power of God, the relative power of the state, and the absolute
dignity of the human person, all working in harmony for the common good of the
society and to the greater glory of God.”
A
versatile human rights legal mind supports Cardinal Onaiyekan well informed
positions that has deep rooted theological basis.
“The
availability of legal remedy to an injured or aggrieved party is critical to
the efficacy of a legal right, and is therefore a fundamental right in itself
which must be accorded equal recognition and protection as the guaranteed legal
rights under the Constitution”.
The
lawyer Frank Agbedo said the machinery for the attainment of this remedy is
through the process of litigation or adjudication, where the lawyers deploying
effective application of law and rules of procedure, espouse the cause of the
applicant or injured party towards the due enforcement of these rights in a
Court of law.
The
foregoing is even more apposite in relation to matters that pertain to
enforcement of fundamental rights of citizens even as he asserted that the 1999
Constitution, as amended, accords special recognition to such rights by
devoting whole chapters and creating a special procedure for their enforcement.
This therefore places them on a higher pedestal than ordinary civil matters..
He argued
further: “Implicit in this special recognition is the fact that unlike in
ordinary civil matters, in an application for enforcement of fundamental
rights, once the applicant has proved the violation of his fundamental right,
in relation to unlawful arrest or detention, by the respondent, he is entitled
to damages in the form of compensation and an apology. This is treated as a
matter of cause, even without specifically proving the damages.”
The
growth and development of human rights in Nigeria he observed, had therefore
been spurred by the evolution of special procedure for enforcement of
fundamental rights, with the Courts being conferred with special jurisdiction
to deal with cases of violation of human rights timeously.
It was
therefore in this light, he posited that the first special procedure for
enforcement of fundamental rights, known as The Fundamental Rights (Enforcement
Procedure) Rules, 1979 was made and promulgated into law by the Chief Justice
of Nigeria at that time.
Unfortunately,
he noted, the 1979 Rules hardly met the expectations of the populace as it was
bedeviled with several procedural impediments which had impeded the realization
of its objectives of securing and expanding access to judicial remedy by
victims of human rights violations.
“This had
paved the way for the coming into force of the current 2009 Rules, made by the
former Chief Justice of Nigeria, Hon. Justice Idris Legbo Kutigi, in his avowed
commitment towards eliminating the said procedural technicalities, associated with
the old rules. Consequently the previous rules became ineffective, particularly
the vexed issues of locus standi and requirement of leave as preconditions for
the commencement of action. (HUMAN RIGHTS LITIGATION IN NIGERIA : LAW,
PRACTICE AND PROCEDURE with Forms and Precedents By FRANK AGBEDO).
It is
therefore incongruous to understand how President could have found a supreme
court’s verdict ehich will support his current disposition to bypass binding
judgments of the competent courts of law in the guise of some nebulous national
security interest which he has on his defined as disrespecting the courts in
any matter he deems above the rule of law. Nigerians should demand to know the
particulars of this verdict he sort to quote as supporting his decisions not to
respect many valid court judgements in the cases of Colonel Sambo Dasuki and
Sheikh Ibrahim El-zak-zaky. I ask again if the Chief justice of Nigeria and the
leaders of Nigerian Bar Association were asleep when Buhari chose to say that
national security is higher in value than the principle of rule of law?
President
Muhammadu Buhari was indeed quoted as stating that the rights of individuals in
the society must always take a second place where national security and public
interests are threatened.
President
Buhari said this while declaring open the 58th Annual General
Conference of the Nigerian Bar Association (NBA) in Abuja with the theme: “Transition,
Transformation and Sustainable Institutions”.
He said
although his administration subscribes to the rule of law as the foundation of
the society, it is also guided by the belief that the 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”,
President Buhari said.
Mr.
President! This your assault on human rights must not stand because it will
result in fascism and tyranny.
*Onwubiko heads the
Human Rights Writers Association of Nigeria (HURIWA)
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