The rule of law and the rule of herdsmen
During his infamous address to the 58th Annual Conference of the Nigerian Bar Association (NBA) in Abuja recently, President Muhammadu Buhari declared that “the national interest is superior to the rule of law”. He made the remark on Sunday 26 August while flagging off the biggest gathering of the high judicature and the legions of legal luminaries, judges and lawyers. The President cited a ruling of the Supreme Court, which had argued that “where national security and the public interest are threatened or there is a likelihood of being threatened, the individual rights of those allegedly responsible must take second place in favour of the greater good of the society”.
Although a non-lawyer myself, I had the honour of being invited to address the Business Law Session at the conference. I have had an abiding interest in the interface between economics, finance, law and regulation and in jurisprudence and philosophy of law in general. I thoroughly enjoyed the disquisitions with those learned men and women of the bar. It was great fun!
Predictably, the infamous obiter generated a lot of controversy. The learned judges were stupefied. Radical lawyers were angered.
At the end of their annual conference, the NBA were compelled to issue a communiqué reasserting the supremacy of the rule of law as the foundation of a free society. They also pointed out that national security concerns must be managed within the ambit of the rule of law. They frowned at the heresy that national security could ever be considered superior to the rule of law. In the same vein they condemned the ugly development whereby authorities are increasingly deciding which court orders to obey and which to overlook, observing that the “court has exclusive duty under a democratic dispensation to interpret the constitution and other laws, and government and the citizenry must comply with court orders at all times until set aside.” The NBA also condemned the increasing use of Executive Orders; especially in blatant disregard of cases that are sub-judice.
Leading the attack is none other than the newly elected president of the NBA himself, Paul Usoro SAN. At a dinner recently organised in his honour by President Buhari’s Senior Special Assistant on National Assembly Matters, Senator Ita Enang, Usoro declared: “What I personally believe is that there must have been a mix-up in the President’s speech. The President must have intended to talk about fundamental rights and fundamental freedom of the citizens. That is the position that the constitution recognises….in circumstances of emergency national security, the constitution acknowledges that the individual rights will give way to the national security emergency. But the rule of law is totally different from fundamental rights.”
Prominent Abuja-based lawyer Mike Ozekhome has condemned Buhari’s comment as a gross error in law as well as fact: “He is dead wrong. Rule of law predominates over national interest. Without rule of law, there can be no nation state. Without nation state, there can be no national interest…Rule of law is father of national interest. As proposed by Prof 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.”
A legal practitioner, Ebun-Olu Adegboruwa, argues that “national security” is a nebulous and amorphous concept that panders to executive discretion: “On the other hand, the rule of law is defined, basic, predictable and even subject to review; it helps to predict and govern human conduct…To postulate that national security should override rule of law consideration may unwittingly portray one as harbouring dictatorial intentions, for preferring national security as priority for governance. It is a dangerous proposition as we approach 2019.”
Nobel laureate Wole Soyinka took umbrage with the President’s “pernicious doctrine” as an ominous sign that he is prepared to sacrifice the rights and freedoms of the Nigerian people for his own political survival: “Here we go again! At his first coming, it was ‘I intend to tamper with freedom of the press’ and Buhari did proceed to suit action to the words, sending two journalists Irabor and Thompson to prison as a reward for their professional integrity. Now, a vague, vaporous, but commodious concept dubbed ‘national interest’ is being trotted out as alibi for flouting the decisions of the Nigerian judiciary.”
In a rhetorical question that was pregnant with irony, Soyinka wondered if President Buhari’s incarceration in 1985 by military President Ibrahim Babangida could also be deemed to have been “in the national interest”. Soyinka believes that Buhari’s remarks must be interpreted as a sign of bad times to come: “The history of law, even where uncodified, is as old as humanity. Numerous rulers have tried again and again to annul that institution. Sometimes, they appear to succeed, but in the end, they pay heavy forfeit. So does society. The rule of law, however, outlasts all subverters, however seemingly powerful….We know, historically, where it will all end.”
A civil-society activist and Executive Director of Citizens’ Advocacy for Social & Economic Rights (CASER), Frank Tietie, expressed disappointment with the president’s speech. He maintains that even in war, the rule of law prevails. “President Buhari made the assertion on the derogation of the rule of law in a large gathering of lawyers. The influential lawyers present at the occasion did not seize the opportunity to correct the President by stating to him that law, especially as pronounced by the courts, is supreme. That neither national security nor national interest as determined by one man or a few men in government should be the basis for disobeying court orders.”
In an opinion piece in the Punch, Chido Nwakanma, a public affairs analyst recently wrote: “Democracy in Nigeria is now in its 19th year in this incarnation essentially because of the observance of the rule of law. The present government is a significant beneficiary. However, this government inclines to push against the progress the nation has made on this path….Across the land, officials of state, at federal and state levels but mainly in the ruling party, have worked hard at turning back the clock of progress. There is growing impunity and observance of the law in breach rather than in compliance”.
From a purely political, oppositional standpoint, the PDP through its spokesman Kola Ologbondiyan, dismissed Buhari’s remarks as the typical “trademark of despotic rulers”. In his own words: “Our national interest is thoroughly embedded, protected, expressed and enforced only under the rule of law as provided by our constitution and there is no how Nigerians can allow an individual to superimpose or override the constitution with his personal whims and impulses…President Buhari should therefore be made to answer for the litany of human rights violations in Nigeria including documented disobedience to court orders, extra-judicial and arbitrary executions, unlawful arrests and political detentions, killing of persons in custody, torture and excessive use of force by security forces on innocent citizens, destruction of property, restriction of free speech, press, official corruption and lack of accountability”.
One of the few people to argue in defence of President Buhari has been Wale Ogunade, convener of a civil-society group, Project-2019. He insists that the supremacy of national security and the national interest is “legal and constitutional”, citing section 45 (1) of the 1999 constitution which expressly states that certain liberties of citizens could be restricted in situations involving (a) the interests of defence, public safety, public order, public morality, or public health; and (b) for the purpose of protecting the rights and freedoms of other citizens. Echoing the French political philosopher Baron de Montesquieu about, Ogunade argues that what we should be doing is looking at ways to ensure that there is effective separation of powers and greater accountability by the three arms of government.
In what seemed like a volte-face, however, barely less than a week after his controversial statement, President Buhari told visiting German Chancellor Angela Merkel that he would always uphold the rule of law while governing the country: “…the rule of law embodies all the rightful mechanisms for conflict resolution, both within the country, and in dealing with all foreign partners…”
The concept of the rule of law goes back to ancient times. Among the Greek Athenians, the philosopher Aristotle taught that it is much preferable that people are governed by laws than by men, no matter how upright. Classical natural law doctrine teaches that all human beings deserve to be treated with fairness and justice. Saint Augustine of Hippo famously taught that “an unjust law is no law”.
In sixteenth century Britain, the Scottish theologian Samuel Rutherford employed the term in making his case against the doctrine of the divine right of kings. However, it was in the 18th century that the political philosopher John Locke provided the moral and political basis for the rule of law. An apostle of liberty and just government, Locke argued that the dictates of human freedom require that men are governed in accordance with laws made only be a popularly elected parliament and that such laws must treat every citizen equally, fairly and justly. As a matter of fact, Locke taught that citizens reserve a moral right to rebel against an unlawful and unjust government.
By the nineteenth century the English jurist A. V. Dicey consolidated in his jurisprudence the key elements of what the rule of law means in a modern democracy. It requires that all policies and decisions are made in accordance with the law; and that both rulers and ruled are subject to the law; and that there is separation of powers between the executive, parliament and judiciary and that the independence of the judiciary is guaranteed in law and in spirit.
In our 21st century, the most prosperous nations are also those that rigorously uphold the rule of law. China may not be your liberal-democratic polity, but the Chinese accord high importance to the rule of law, sanctity of contracts and respect for property rights. This has been among the factors accounting for their remarkable economic progress in recent decades.
Like all heresies, what President Buhari invoked has some elements of truth to it: in all civilised democracies, circumstances requiring temporary derogation of fundamental rights and liberties can arise. The French call it “la raison d’état”. It was for this reason that the medieval North African Arab jurist and philosopher Ibn Khaldun famously defined the state as that institution that alone has the right to commit crime and get away with it.
The presumption that the rule of law and national security are polar opposites is in itself a legal fiction. As the Guardian editorial of Tuesday 4 September opines: “Adherence to the rule of law should be our national interest. It provides us with the framework to deal with every probable scenario and a guide to formulate appropriate responses to unanticipated and new challenges. We submit that it is our deviation from the rule of law as a nation that has created and incubated the serial problems of corruption, insecurity, injustice and impunity that have manifested and crystallised as we all watch, often helplessly”.
In democracies old and new, the rule of law is always and everywhere supreme. Extreme situations may arise whereby the interests of national security may take precedence over and above the rule of law. But these are rare cases, not the norm.
Tyrants, dictators and madmen always justify their infamies in terms of “the national interest”. It is regrettable that the incumbent of the high magistracy of our Federal Republic could utter such mischief to the face of our venerable justices and our learned lawyers during their biggest annual gathering. For one thing, the context was wrong — wrong message at the wrong time. And the whole thing was in bad taste. What he said would have been better addressed to the militia herdsmen that have continued butchering defenceless children and women in the Middle Belt of our country.
Obadiah Mailafia