President Muhammadu Buhari says the rule of law must be subject to the supremacy of the nation’s security and national interest, but lawyers and political analysts disagree with this assertion, JESUSEGUN ALAGBE writes
On Thursday, February 26, 2015, four weeks before the election that brought him to power, President Muhammadu Buhari told the world at the Chatham House in London, United Kingdom, that he had become a converted democrat.
Dismissing references to his past as a military dictator, Buhari while delivering a lecture titled, “Prospects for Democratic Consolidation in Africa: Nigeria’s Transition,” also took responsibility for his actions when he was the head of state between 1983 and 1985.
“I have heard and read references to me as a former dictator in many respected British newspapers, including the well regarded Economist.
“Let me say without sounding defensive that dictatorship goes with military rule, though some might be less dictatorial than others. I take responsibility for whatever happened under my watch,” he said.
Speaking further, he said, “I cannot change the past. But I can change the present and the future. So, before you is a former military ruler and a converted democrat who is ready to operate under democratic norms and is subjecting himself to the rigours of democratic elections for the fourth time.”
By his speech in front of the global audience then, Buhari won the hearts of several Nigerians who had always seen him as a strict military dictator who would not abide by the tenets of democracy if voted for.
However, since assuming office, President Buhari’s words and actions have on different occasions made Nigerians to ponder whether indeed he meant what he said at the Chatham House.
From flagrant disobedience to court orders, to dictatorial pronouncements, among others, observers said Buhari seemed to have veered off the path of democracy which he had promised to toe.
Just on Sunday, the President addressed an audience of lawyers at the 2018 Annual General Conference of the Nigerian Bar Association in Abuja, saying that the principle of rule of law must be subject to the supremacy of the country’s security and national interest.
He said where national security and public interest were being threatened, the individual rights of those allegedly responsible must take the second place.
“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 the society,” he said.
Noting that the conference’s theme, “Transition, Transformation and Sustainable Institutions” was apt in the light of contemporary domestic and global challenges, Buhari said since the inauguration of his administration, he had had the privilege of observing how societies experience transition, attempt transformation and build or strengthen institutions to manage the processes.
Even though President Buhari did not expressly state cases where he thought that national interest and security should supersede the rule of law, lawyers and political analysts have said his language is similar to that of a dictator.
A lawyer and human rights activist, Ebun-olu Adegboruwa, described a situation whereby the President urged the judiciary to put national security over and above the rule of law as a great setback for democracy and national development.
Insisting that national security cannot and should never override the rule of law, Adegboruwa described national security as the rule of the executive alone, being the arm of government responsible for policy implementation.
He said, “It (national security) is the rule and decision of individuals, such as the Inspector-General of Police or the Commander in Chief, such rules are always subject to manifest abuses, especially in respect of opposition politics. That has been the experience in Nigeria.
“On the other hand, the rule of law is defined, basic and even subject to review. It helps to predict and govern human conduct. The rule of law limits and interposes upon the rule of self all forms of arbitrariness and is thus preferable to the whims and caprices of individuals.
“In Nigeria presently, our collective wealth and resources are being pilfered by our leaders in the name of national security. It is only a person who harbours dictatorial intentions that would canvass national security as choice of governance.”
Adegboruwa, however, noted that the point of convergence with the President was that those who had prima facie cases of any malfeasance should not deploy the rule of law to avoid liability, especially when it concerned intolerable economic crimes. But even at that, the lawyer said what constitutes national security and interest should still be determined through the due process of law.
He added, “The daily narration of tales of mind-boggling abuses under the past administration should serve as some kind of discouragement in elevating national security beyond the dictates of law.
“To postulate that national security should override the rule of law may unwittingly portray one as harbouring dictatorial intentions.
“It is a dangerous proposition as we approach 2019. Taken to its proper interpretation, it may be taken to be an advance notice to the people of Nigeria to brace themselves for likely threats to their rights and liberties in the coming days.”
Appealing to Buhari to ensure that the constitution supersedes any national interest, Adegboruwa said it didn’t imply that he (Buhari) wouldn’t still be able to fight against corruption and terrorism.
He said, “I therefore humbly appeal to the President to accommodate the supreme law of our land, the constitution, which already contains enough provisions to integrate national security within the due process of law.
“Nigeria itself, as a nation, was created by law. The offices of the President and indeed all those saddled with the determination and preservation of national security were all created by law.
“Thus, everybody and everything can find their roots and bearings under the rule of law. Let us not go back to the very dark days of the military.”
Adegboruwa was however not the only lawyer to pick holes in President Buhari’s assertion that national security and interest should supersede the rule of law.
A Senior Advocate of Nigeria, Mike Ozekhome, said the President erred in his assertion, as he was literally suspending the constitution by his statement.
“The declaration reminded me of the days of Decrees 2 and 4, which decimated the citizens’ rights and ousted the courts’ jurisdiction to inquire into breach of such rights,” the constitutional lawyer and human rights activist said.
He explained, “The rule of law is the very anvil and foundation on which any society is anchored. It precedes society itself and predominates over national interest. Indeed, modern society itself emerged from the pristine Stone Age irrationality through the operation of the rule of law.
“Without the rule of law, there can be no nation state. Without nation state, there can be no national interest. The rule of law is the father of national interest. No society can exist without the rule of law. It is immutable, ineradicable, and unchangeable.
“Those deceiving Mr. President and writing warped ‘legal opinions’ and speeches for him on sensitive national matters that could snowball into serious cataclysmic miasma capable of consuming all of us, just to keep their cheap jobs and serve the insatiable bacchanalian appetites of their gods at the ephemeral corridors of power, must remember the immortal words of the Supreme Court in Military Governor of Lagos State v Odumegwu Ojukwu (2001) FWLR (part 50) 1779, 1802, coran erudite Obaseki, JSC:
“‘The Nigerian constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. Nigeria, being one of the countries in the world which professes loudly to follow the rule of law, gives no room for the rule of self-help by force to operate.’”
Quoting renowned British jurist and constitutional theorist, Albert Venn Dicey (1835-1922), Ozekhome said the rule of law meant equality of all persons before the law, and the observance of all laws by persons and authorities, irrespective of their status.
“National security or national interest is a veritable smokescreen under which a tyrannical and lawless government hides to promote its own dubious agenda against the hapless masses, thus jettisoning all known provisions of the constitution and the Bill of Rights,” he added.
An Abuja-based lawyer and political commentator, Mr. Paul Olusola, told our correspondent that it was important for the President to know the consequences of his words before uttering them.
He said that by his assertion on Sunday, Buhari was publicly telling Nigerians, as well as the international community, that he had no regard for the constitution.
The political analyst said since Buhari was now “serving” and not “ruling” the country, he ought to know that under the democratic dispensation, national interest does not and should never override the rule of law.
He said, “The words of President Buhari at the NBA conference were that of a dictator; there is no other word for it. It was provoking that he actually said those words in front of the custodians of the rule of law.
“He stood in front of lawyers, telling them he could willfully disobey court orders and that he didn’t care about democracy. No wonder he has been flagrantly disobeying court orders. If Nigeria was a serious country, there ought to have been mass protests against his dictatorial speech.”
Citing the cases where Buhari had shown disdain for the rule of law, including those involving a former National Security Adviser, Colonel Sambo Dasuki, (retd) and the leader of the Islamic Movement in Nigeria, Ibrahim Elzakzaky, and his wife, Zeenah, Olusola said if the President was truly a converted democrat as he proclaimed in 2015, he should have been seen upholding the tenets of democracy.
Despite being granted bails by four different High Court judges and the ECOWAS Court, Dasuki-who is facing trial of stealing $2.1bn government funds – has been in detention since his arrest by the Department of State Services in December 2015.
Likewise, El-Zakzaky and his wife – despite court orders granting them bail– have been kept in detention since December 2015 when they were arrested by the DSS operatives after their supporters had a violent encounter with the convoy of the Chief of Army Staff, Lt.-Gen. Tukur Buratai, along Zaria Road.
Buhari has yet to issue any statement to reverse the comment he made at the NBA conference on Sunday. This has fuelled concerns, making Nigerians to wonder whether the President is truly a converted democrat.