Rule of law: Buhari goofed, but is Nigeria rule-based?

Motives matter. And, so, when President Buhari said recently at the national conference of the Nigerian Bar Association (NBA) that “Rule of law must be subject to the supremacy of the nation’s security and national interest”, my immediate response was: Why did he say that? What was his motive? Well, Professor Wole Soyinka provided the answer, with the apt phrase “dictatorial recidivism”. Buhari, let’s remember, has a dictatorial past as a one-time military ruler. Although he is now a civilian president, purportedly a converted democrat, the truth is that he still wishes he could rule as a dictator. He constantly compares the constraints of his present office to the unrestrained powers of his dictatorial past, suggesting some hankering after that past. His rule-of-law statement should be seen in that light!

However, my response to the president’s statement goes beyond mere condemnation. Of course, President Buhari misspoke with the derogation from the rule of law, but I would advance the proposition that Nigeria is, in any case, not a rule-of-law state, and, thus, the hysterical reactions to Buhari’s statement are hypocritical. To do this, however, we must first understand the term “rule of law”. Everyone talks about it, but what does it really mean?

There are three main conceptions of the rule of law. The first is the formal or rule-book conceptions, espoused by legal positivists. According to this school, the rule of law is satisfied once laws meet the formal requirements of being (a)properly promulgated (b)clear, general and prospective – i.e. set out in advance – to enable individuals to plan their lives and (c) applied by an independent and impartial judiciary. Once these formal precepts have been met, it doesn’t matter whether the law is a good law or a bad law, whether it is morally sound or not, the rule of law has been satisfied. However, advocates of the rights-based or substantive conceptions of the rule of law, notably the American jurist Ronald Dworkin, argue that having laws that meet the formal requirements is not enough; the laws must also guarantee the citizens moral rights and duties with respect to one another, and political rights against the state. In reality, though, the formal and substantive conceptions of the rule of law cannot be viewed in isolation from each other, and, thus, every civilised society recognises that the rule of law must entail both the formal and substantive elements.

Which brings us to perhaps the most popular conception of the rule of law, propagated by the British jurist A V Dicey. On the assumption that the rule of law already meets the formal and substantive criteria, Dicey set out three fundamental principles that must also underpin it. The first is the absence of arbitrary power on the part of the government; in other words, nobody must be punished at the whim of the state, a breach of law must first be established before the ordinary courts. Second, no one must be above the law. As the authors of Oxford English Law put it, the rule of law means “equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts”. Dicey’s third postulation is that, under the rule of law, the right to personal liberty is protected by the courts through judicial decisions.

All of this shows that the rule of law is a comprehensive concept; you cannot pick one or some elements of it and ignore the others. In sum, its core components are: the need for laws to be open, clear, stable and general; guarantee of moral and political rights; absence of arbitrary use of state power; equality before the law; protection of individual liberties; and an independent and impartial judiciary. Now, can anyone seriously say that Nigeria adheres to these dictates of the rule of law? The answer, surely, must be no!

At the basic, formal level, law-making in Nigeria is opaque, and the emergent rules are often unclear and unstable, leaving citizens and businesses to struggle to understand what the law is, and thus unable to plan their lives or activities. Even where legal rules exist and are clear, their purposes are undermined by the unlawful exercise of discretion by law enforcement agencies, who will tell you that you are wasting your time following the rules instead of bribing to have your way!

Then, take the Dworkinian rights-based or substantive conception. Do laws in Nigeria guarantee the rights of citizens? Which justiciable political or civil rights can citizens enforce against the state in Nigeria? Truth is, the state has more rights against the citizens than the citizens have against the state. Even with respect to the moral rights and duties between citizens, it is near impossible for the weak to get justice against the powerful in Nigeria. This is a country where a powerful person can ask the police to detain another citizen and say: “Don’t release him until I say so”. That won’t happen in a rule-of-law state.

What about the arbitrary use of state power? Any punishment of a citizen by the state without a breach of law first being established before the ordinary courts is a violation of the rule of law. Yet, the exercise by the government of wide, arbitrary or discretionary powers of constraint is widespread in Nigeria. Individuals are detained without or even against court orders, as the Sambo Dasuki case shows. As the NBA recently pointed out, the use of Executive Orders by the Buhari government in criminal matters and in matters already in court could amount to “decree-making”, which would violate both the formal and substantive requirements of the rule of law.

Equality before the law? Forget it! Not everyone is equal before the law in Nigeria. As former US president Barack Obama wrote in his book, The Audacity of Hope, Nigeria has two sets of rules, “one for elites and one for ordinary people”. The arrogance and impunity with which powerful people in Nigeria behave makes complete nonsense of any pretence to a commitment to the rule of law. No individual, whatever his or her status, should be above the law. Two former presidents of Brazil were convicted of corruption and jailed. Similar things have happened in South Korea. But Professor Itse Sagay, President Buhari’s anti-graft adviser, said that putting a former leader on trial in Nigeria would be divisive. Surely, then, there is no equal subjection of all classes of citizens to the ordinary law in Nigeria, which proves that Nigeria is not committed to the rule of law.

Let’s now turn to the independence of the judiciary. The rule of law depends on the ability of the judiciary to make independent, impartial decisions, and on the government, as well as private individuals, to comply with decisions of the court. Sadly, neither of these is often the case in Nigeria. In disputes between private parties, judges are not always independent and impartial.The US Trade Representative (USTR) once said that “the sanctity of contracts is often violated, and Nigeria’s court systems for settling commercial disputes is sometimes biased”.

When it comes to disputes between private individuals and the state, the main challenge, of course, is the unwillingness of the government to comply with the decisions of the court. As long ago as 2006, the then Chief Justice of Nigeria during the Obasanjo administration lamented “the disposition of the Executive to wanton disobedience of, and non-compliance with, the orders of the court”. So, the Buhari government is following a familiar path, well trodden by its predecessors.

Of course, all over the world, there are tensions between the executive and the judiciary. President Trump criticised US judges for overturning his immigration decisions. In the UK, government ministers have criticised judges for lenient sentences, for refusing to deport alleged terrorists or, even recently, for ruling that the government could not trigger the Brexit process without the approval of Parliament. But, despite the tensions, the accepted rule-of-law norm in all civilised nations is that the government should either appeal the decisions of the courts or comply with them. No government in any country committed to the rule of law should refuse to comply with court orders. The fact that such non-compliance is common in Nigeria is a strong evidence that Nigeria is not a rule-of law state.

So, let’s be clear. President Buhari goofed with his statement that the rule of law can and must be subordinated to national security or the national interest. The rule of law is about legality and the failure to pursue national security or so-called national interest legally would seriously undermine it. The Supreme Court ruling in the Dokunbo Asari case that Buhari used to support his statement does not say that the rule of law can be subjected to national security; rather, it says, rightly, that individual liberties can be subordinated to national security but only within the context of the rule of law, i.e. based on pre-existing laws and after the decision of the ordinary court, not the exercise of arbitrary powers by the government. That’s the key difference!

Whatever motives lay behind President Buhari’s statement, he has, unfortunately, sent negative signals to the rest of the world that Nigeria would trample on the rule of law based on some nebulous national security or national interest considerations. The sheer folly of the president’s statement was laid bare when, a few days after he made it, he had publicly to assure the visiting German chancellor, Angela Merkle, that his administration “will always uphold the sanctity of the rule of law in governing the country”, effectively rowing back on what he said at the NBA conference. But the damage had been done.

Nigeria is universally known as a country that does not respect the rule of law. The president’s comment, which ricocheted around the world, has reinforced negative perceptions about Nigeria and its investment-friendliness. It’s an own goal by a government that says it wants to attract foreign investors. Sad!

Olu Fasan