By Reuben Abati
It is unfortunate that the most important statement made so
far at the on-going Annual Conference of the Nigeria Bar Association, an
outright derogation of the supremacy of the rule of law, has not yet generated
any coherent response from either the Bar or the Bench.
President Muhammadu Buhari was guest of honour on Sunday at
the NBA Conference and he had the additional responsibility of declaring the
Conference open. In his address, he told the gathering of eminent lawyers and
judges that his administration will prioritise national security over and above
the rule of law.
The “rule of law” often sounds like a catchy phrase among
lawyers, and there have been so many confusing interpretations of it,
especially by politicians, compelling Martin Kettle to advise in The
Guardian *Buhari |
Kettle is right
because here is what President Buhari reportedly said: “….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…”
Politicians often get away with their own convenient interpretations of the rule of law because of the kind of acquiescent, self-denigrating reception that President Buhari received at the NBA event. The President had just invoked before an audience of officers in the temple of justice, the spirit of the notorious Decree 2 of 1984, and can you imagine? : They all clapped! The Chief Justice of the Federation, Walter Onnoghen would later mention the independence of the judiciary, but nobody thought it necessary to give some talk about the Supremacy of the Rule of Law.
Politicians often get away with their own convenient interpretations of the rule of law because of the kind of acquiescent, self-denigrating reception that President Buhari received at the NBA event. The President had just invoked before an audience of officers in the temple of justice, the spirit of the notorious Decree 2 of 1984, and can you imagine? : They all clapped! The Chief Justice of the Federation, Walter Onnoghen would later mention the independence of the judiciary, but nobody thought it necessary to give some talk about the Supremacy of the Rule of Law.
The President even dabbled into case law, by referring to
some subsisting decisions or judicial recognition of the Supreme Court.
Politicians are closet lawyers, of course: the ones who have attended one
election tribunal or the other often forget themselves and try to play around
with legalism.
But it is scandalous for lawyers and the judex to applaud a
statement, which clearly erodes the doctrine of the separation of powers, the
independence of the judiciary and the general principles of constitutionalism.
Before I go any further, let me state that I am fully aware that because of the
popularity of the phrase, “the rule of law”, it has also been grossly
misapplied, prompting Professor Akin Oyebode to argue in an essay titled “From
the rule of law to the rule of just law” (1994), that perhaps we should be more
concerned about the “abuse of the rule of law” and argue for just law, because
the rule of law can only make sense when it is rooted in “substantive and
distributive justice”, more so as the “rule of law” has become “a harlot at the
disposal of everyone.”
President Buhari rather than turn national security into a
fetish, must be more concerned about justice. It is only when justice is done
that the “greater good of society” can be realised. The doctrine of rule of law
can be traced back to the Greek philosopher, Aristotle, but it is often
associated with Professor A.V. Dicey who in 1885 provided three basic outlines
for understanding it:
(1) no man can be punished except under the law and
before ordinary courts of the land.
That is: You can only be punished according to an established
law, not the whims and caprices of government or an individual
(2) no man is
above the law, and every man is equal before the law, be he king or plebeian
and
(3) the general principles of the constitution as interpreted by the courts
shall prevail. In summary, therefore, the rule of law is about fairness,
justice, equality, due process, accountability, impartial application of the
law and proper administration of justice.
Whatever other interpretations or conventions may have
governed Dicey’s original clarification in other jurisdictions, there seems to
be a universal meeting of minds to the effect that the rule of law is
paramount. Where there are no laws, what you’d find is the rule of men. Thomas
Hobbes identifies this as “a state of nature” where cruelty, nastiness and
brutishness could be the order of the day. Indeed, any attempt to define the
rule of law outside the province of justice, is a journey towards a state of
anarchy as defined by Hobbes, or at best, what Lord Hailsham calls “elective
dictatorship”.
Thus, when President Buhari stood before Nigerian judges and
lawyers, and told them that the rule of law is not as important as national
security, he was not talking about “justice”, he was talking about “power and
might”. He was saying that regardless of what the courts may say, the
government reserves the right to take decisions bordering on personal freedoms
and rights in the interest of national security. In 1984 as a military Head of
State, General Muhammadu Buhari as he then was, pushed this same conviction
through a notorious Decree 2.
The judex of the time, the Supreme Court of Fatayi-Williams,
Oputa, Eso, Obaseki, Irikefe, Bello ,
Karibi-Whyte, Nnaemeka-Agu, Uwaifo, Ayoola – and lawyers like Gani Fawehinmi,
Abraham Adesanya, Kanmi Osobu resisted the violation of the rule of law by the
military dictatorship that emerged. In 2018, every reasonable person must
insist that the rule of law is superior to national security, and where there
must be a restriction of fundamental rights, only a court of law can so
pronounce, not the President, not any of his agents, no matter how highly
placed.
In other jurisdictions, the statement made by President
Buhari would ordinarily have earned him an objection from the office of the
Attorney General. The disagreement between President Trump and the former head
of the Federal Bureau of Investigation (FBI) James Comey is all about the rule
of law, the latter’s attempt to defend and protect it in the people’s interest,
and the former’s attempt to bend the law to his own will.
It is the same with the current Attorney General of the United States ,
Jeff Sessions who has been most critical and dismissive of President Donald
Trump. Sessions insists, like Comey that his loyalty is to the rule of law and
the people of the United States and
not to the whims and caprices of a certain Trump.
The President insists that he gave Sessions the job because
he expects him to be loyal. You may not like Mr. Sessions’ abrasiveness but you
cannot fault him on the grounds of principle. In our case, Abubakar Malami, SAN
owes us, the Nigerian people, a higher loyalty by ensuring that the government
of the day does not turn national security into a scarecrow for violating human
rights. It is this same bogey that is used to intimidate the media and all
voices of opposition in society.
But it is sad that at some point, Nigeria ’s
present Attorney General also had cause to express the same sentiments that
President Buhari put on the table before the NBA. He was probably speaking from
the mouth of the Attorney General and if this is true, then it is a tragedy.
Tom Bingham, Lord Chief Justice of England and Wales (as
he then was) defines the rule of law by identifying certain abuses of it.
He writes; “The hallmarks of a regime which flouts the rule
of law are, alas, all too familiar: the midnight knock on the door, the sudden
disappearance, the show trial, the subjection of prisoners to genetic
experiment, the confession extracted by torture, the gulag and the
concentration camp, the gas chamber, the practice of genocide or ethnic
cleansing, the waging of aggressive war. The list is endless.”
Characteristically, every dictator’s excuse for these violations of human
rights is national security or national interest.
Jones Abiri, a journalist, was arrested and detained for two
years, without trial, under this administration – going by the new logic, for
national security reasons. When the man was released after much public outcry,
he looked as if he had been taken through an experiment. Colonel Sambo Dasuki
(rtd.), the country’s former National Security Adviser (NSA) has been granted
bail by the courts six times; the West African Court has also upheld his right
to fair hearing and asked that he should be granted bail, but the Nigerian
government has refused to obey the courts.
The leader of the Shi’ites Movement, Ibrahim el-Zakzaky, and
his wife, have been in detention for more than a year. The leader of the
Indigenous Peoples of Biafra movement (IPOB) was smoked out of his residence
one fateful day, like a rabbit. His whereabouts remain unknown to date. Radio
stations have been demolished, media owners have been told to be careful, The
President talks tough. His foot-soldiers leave no one in doubt that they are in
charge and they are ready and willing to use power. The Constitution of Nigeria
is an expression of the sovereignty of the people of Nigeria and
the basis for the rule of law. There can be no higher law above it, only the
courts can interpret it and determine cases accordingly, including matters
related to national security. When the executive arm of government takes it upon
itself to determine what constitutes national security or national interest, it
commits the error of acting as the judge in its own cause.
This is contrary to all norms of a good society, including
the body of laws on war, not even in a war situation is an individual’s rights
allowed to be brazenly violated. And say what you will, Nigeria is
not at war. The Supreme Court was referred to by President Buhari, and I urge
their Lordships to remember the words of Justice Samson Uwaifo, who has been
described by Professor Ben Nwabueze as “a great judge and one of the ablest
judges that ever sat in the Supreme Court”.
On the occasion of his retirement on 24 January 2005, Uwaifo
JSC spoke about “judicial uprightness” and “the manipulative dimension
prevalent in our socio-political environment” and he concluded: “The Supreme
Court must always demonstrate, even more than ever in such atmosphere, that it
can neither bend nor break”. I rest my case.
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