President Buhari, the Rule of Law & National Interest: Matters Arising! -Ishola Adebayo

August 31, 2018

An online encyclopaedia basically defines National security as the security of a nation state, including its citizens, economy, and institutions, and it is regarded as a duty of government.

Governments rely on a range of measures, including political, economic, and military power, as well as diplomacy to enforce national security. They may also act to build the conditions of security regionally and internationally by reducing transnational causes of insecurity, such as climate change, economic inequality, political exclusion, and nuclear proliferation.

The concept of national security remains ambiguous, having evolved from simpler definitions which emphasised freedom from military threat and from political coercion.

Conversely, the rule of law has been defined as the "authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all members of a society (including those in government) are considered equally.

In a keynote address delivered at the beginning of the 58th annual conference of the Nigerian Bar Association on Sunday, President Muhammadu Buhari spoke on various issues, most prominent of which was his view about the rule of law on issues of National interest.

The President, in his speech, urged lawyers to put national security over and above the rule of law. “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,” Mr President said.

Although the president did not specify current cases in court for which his administration views the need to uphold “national interest” above the rule of law, but some notable Nigerians and senior legal practitioners linked the president’s stance on rule of law and national interest to Mr Dasuki’s case.

Dasuki was arrested in 2015 for alleged possession of firearms and diverting $2.1 billion while he was National Security Adviser. Speaking during an interview on July 13, 2018 about the continued detention of Mr Dasuki, the Attorney-General of the Federation, Abubakar Malami, has given that the reason behind the government’s refusal to comply with repeated court orders for the release of former National Security Adviser (NSA), Mr Dasuki is because the allegations against him were related to “issues of public interest.” Mr Malami has been largely condemned by lawyers and notable Nigerians for his view on Mr Dasuki’s prolonged imprisonment.

Similarly, various lawyers and political actors criticized President Buhari’s for his views, stressing that nothing justifies the government’s disobedience of court orders. Most of Mr President’s critics lamented that the country has headed the path of dictatorship. Lawyers, who kicked against the President’s statement include Professor Ernest Ojukwu, SAN, Chief Mike Ozekhome, SAN, Abeny Mohammed, SAN, Mr Solomon Bob, a lawyer and Governor Nyesom Wike’s aide, Dr. Kayode Ajulo, Mr. Ugochukwu Ezekiel, Mr Joseph Otteh, Executive Director, Access to Justice, Mr Monday Ubani, out-going second Vice President of NBA, and Mr Gbenga Ojo, Senior Law Lecturer, Lagos State University, LASU.

One of the Mr President’s critics, Prof. Ernest Ojukwu, SAN, said: “It is unfortunate that our President made that speech. I think there is a fundamental problem which we need to address on that issue. “If our President says that rule of law must be subject to national interest, then it is an ominous sign that our democracy has failed. The civil society needs to rise to reverse that speech whether it is in substance, form or reality, otherwise we will be in trouble.”

The rule of law is the father of national interest. “As proposed by Professor A.V. Dicey, it means equality before the law by all persons, observance of all laws by persons and authorities and, of course, obedience to court orders made by competent courts of law. “Once a court of law has made an order for the release of a citizen on bail, the president, government and all authorities must obey the order of the court. It is not for the government to pick and choose which order to obey and which not to obey in the so-called name of “national interest. “This is because in arriving at a decision to release an individual on bail, the court must have first heard the facts and argument of the case of both the government and the citizen. “It is tantamount to executive lawlessness and governmental capriciousness and whimsicality to sit on appeal over a court decision to determine what amounts to national interest. Such a stance is a clear descent into anarchy and chaos.”

Similarly, Abeny Mohammed, SAN, said: “What is national interest that rule of law must be sacrificed for? Rather, it is in the national interest of any government to obey and subject Nigeria to the rule of law. Where there is the rule of law, every interest, including that of the nation is safeguarded. A country without the rule of law is a lawless jungle.

Nobel laureate, Wole Soyinka, also criticised President Muhammadu Buhari for apparently saying his government is willing to violate the law for national security.

In a statement Thursday, Mr Soyinka mocked the president by saying Mr Buhari had obviously given a deep thought to his travails under a military dictatorship and concluded that his incarceration at that time was also in the ‘national interest.’

The president, however, found support in Sagay, who said he would prefer rule of justice for Nigerians. Sagay said: “I agree with him absolutely. I will even go further because people are saying that he is referring to the case of the former NSA, Col. Sambo Dasuki (retd) and Ibrahim El-Zakzaky, my own goes beyond all that. ‘’My own extends to robbers and looters and criminals in the society, who jump at human rights and the rule of law, forgetting that there should be rule of justice. When you loot and subvert the economy of the country, and millions of Nigerians are suffering, then the interest of the country should override any rule of law that you claim.

‘’You should not be secure in the arms of the law when millions of your countrymen are going down because of your depredation and sabotaging our economy. So, I even extend it to corruption and not just those two, I agree absolutely with him. What I am saying is that rule of justice for Nigerians is superior to rule law for individuals.”

Meanwhile, Mr Wale Ogunade, Convener of the group told the News Agency of Nigeria (NAN) in Lagos, that President Buhari‘s statement was a restatement of the provisions of the laws of the Federal Republic of Nigeria. According to him, the President’s statement takes its foundation from the fact that, the rule of law can only exist when the national interest and security is secured in a state of peace and tranquillity. Otherwise, it is a farce.

Ogunade said that section 45 sub-section 1 of the 1999 constitution is clear on the issue .According to him, the power to determine what constitutes a threat to national security and national interest is solely vested in the executive arm of government for now.

”Section 45 (1) of the 1999 constitution states explicitly that: “Nothing in sections 37, 38, 39, 40 and 41 of this constitution shall invalidate any law that is reasonably justifiable 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 person’s.

Therefore, instead of dissipating energy of whipping up emotions and sentiments in condemning Mr President’s statement which is in alignment with provisions of our constitution, we will be more interested in extensive public engagement on this matter if and only if genuine and legitimate concerns are directly focused towards curtailing the abuse of power likely to arise from the power to determine what constitutes a threat to national security and national interest which is solely vested in the executive arm of government for now.