By Innocent Anaba, Dapo Akinrefon, Ikechukwu Nnochiri, Levinus Nwabughiogu, Dirisu Yakubu & Henry Ojelu
•Lawyers, Afenifere, PDP, others knock Buhari, say rule of law foundation for national interest; Senators react
LAGOS — Senior lawyers and notable political actors, yesterday, took umbrage at President Muhammadu Buhari’s elevation of national interest above the rule of law, with several of them lamenting that the country was headed the path of dictatorship.
President Buhari, however, found support from the chairman of the Presidential Advisory Committee Against Corruption, Professor Itse Sagay, SAN, who said he would even extend Buhari’s assertions beyond national security to even putting the fight against corruption above the rule of law.
Buhari had in an address presented at the opening ceremony of the 2018 Annual General Conference of the Nigerian Bar Association, NBA, in Abuja on Sunday, insisted that individual rights of alleged offenders would not be spared when national security and public interest were threatened.
“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,’’ the President had said.
Outcry over President’s position
His claim was repudiated by senior lawyers across the country, political actors and the Peoples Democratic Party, PDP.
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.
In his reaction, 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.”
Rule of law is father of national interest — lawyers
Chief Mike Ozekhome, SAN, said: “He (President Buhari) is dead wrong. The rule of law predominates over national interest. Without the rule of law, there can be no nation-state. Without a nation-state, there can be no national interest. 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.
“I don’t know who wrote that speech; it is the first time in our jurisprudence that I will hear a President complaining that the rule of law must give way for national interest. The first national interest of a country is to subject itself to the rule of law.
“That implies not doing things to suit the whims and caprices of anyone. That stops any leader from doing what he likes as he is doing today in Nigeria, unless he wants to take Nigeria back to 1984 when he was military head of state, when his words were law.”
Solomon Bob also said in his reaction: “President Buhari, seeking to double down on lawlessness, has demanded that the rule of law be subject to national interest. What is national interest? It’s an indeterminate term which is open to capricious abuse as we’ve seen in the last three years.
“That the President chose the occasion of the opening of the Bar Conference in Abuja to make such a comment says a lot about the abysmal depth to which the Bar has sunk and the contempt with which it is held. Lawyers who sat through that inanity without a whimper of objection need to take another look at themselves. Of what benefit is a cowardly Bar?”
National interest is coded in constitution, which is law
Another lawyer, Dr. Kayode Ajulo, said: “The ultimate national interest is codified in the Constitution. Fundamental human rights are hinged on the rule of law and if the rule of law is now to play second fiddle, then there is a potential to trample on these rights protected by our constitution.
“The President’s statement is ultra vires our constitution and every tenet of his claim as the President of our federation and, therefore, the statement has no legs to stand on. No serious citizen would take him seriously on it.”
In the same vein, Mr. Joseph Otteh said: “What the President is saying is possible during national emergency. During such periods, certain propositions about the rule of law and human rights can be overridden in the interest of national security. Say for instance, the nation is at war and soldiers need to use a particular property that belongs to somebody.
“But even then, there would have been legislation that provides for that kind of exception. So even in war situations, the rule of law can still prevail, even if some rights are denied individuals for strategic reasons.”
“But not in peacetime, not when a country is not facing a national emergency or crisis. It is unattainable completely to say that you want to sideline the rule of law to what some people in power refer to as national security.
“In Nigeria right now, you can’t speak of any emergency that requires the President to distract from the rule of law. National security cannot be equated with government’s preference to be unaccountable to the constitution.
“They are not the same thing. A government that merely wants to ride roughshod over other branches of government, a government that wants to be arrogant to the constitution cannot say it is doing so in the interest of national security. That is not in the interest of national security.
“I defer in theory that there are some occasions where national security might press very hard on the rule of law. But where I disagree with the President is the attempt to equate Nigeria’s current situation with those kind of emergencies. We don’t have those kind of emergencies.”
Mr. Monday Ubani, said in his reaction: “We as lawyers, don’t have a problem with national interest overriding rule of law at some point. That is possible in certain circumstances which should be determined by the court.
“But if the President is making reference to the Dasuki matter or any other matter where there had been an express order of the court, where the court has even considered national interest and other issues presented by the prosecutor and still insisted that the liberty of the defendant cannot be curtailed because there is a constitutional provision which protects the fundamental human right of every citizen, if a person is accused of a crime, our laws still presume the person innocent. It is only the court that presumes a person guilty.
“When a person has not been pronounced guilty, the state does not have any right to override the ruling of a court which has granted bail to that person.
“The issue of national security and the rule of law in the address of Mr. President must be put in proper context. There are certainly instances where a court can curtail the liberty of an individual, especially when there is a conflict of national security.
“But it is only the court that can do this and no other person. Moreover, it will be for a season and not indefinitely. This is in contrast with Dasuki’s case where the government has held him permanently incarcerated, despite several court pronouncements.
“If we continue to allow this in a democracy, it is very dangerous. It is a red signal that the executive can arrest any person and tell the whole world that the person is being detained because of national security.
“The government can even use that against political opponents. That is the danger with such postulation. This is why the judiciary is there to independently examine such matter and decide whether national security should supersede the right of that individual.
“It is wrong for the executive to hide under the excuse of national security to detain an individual. The President has spoken to us (lawyers), but we don’t want him to have the impression that we have accepted his message. We are certainly not convinced with what he has said.”
Mr. Gbenga Ojo, Senior Law Lecturer, LASU, said: “If the President is talking about national security, it must be in the context of the law. Everything must be according to the law, including state or national security. If we allow what the President is postulating, then there is danger because that will give the President power to detain anyone under the guise of state security.
“Dasuki’s case is a classic example. The government is already abusing the privilege which it does not even have. The president’s idea is simply nebulous.”
Speaking on the issue, Ebun-Olu Adegboruwa, in a statement said: “To postulate that national security should override the rule of law consideration may unwittingly portray one as harbouring dictatorial intentions, for preferring national security as a priority for governance.
“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 up for likely threats to their rights and liberties, in the coming days.
“Whereas we all support the President in the fight against corruption and terrorism, it is still necessary to allow the rule of law to have the pride of place in all spheres of governance.
“It was under national security for instance that I was kept in custody from November 2007 till July 2008, without trial at all.”
I support Buhari — Sagay
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.”
We’ll rally Nigerians to protect democracy — PDP
Reacting in a statement by its spokesman, Kola Ologbondiyan, the Peoples Democratic Party, PDP, vowed to deploy every legitimate instrument to protect the nation’s democracy, stressing that every semblance of military dictatorship would be weeded out.
“It is instructive to note that contrary to claims by Mr. President, there is no pronouncement by the Supreme Court that subjugates the constitutional rule of law and rights of citizens to the whims, caprices and dictatorial impulses of any President.
“The PDP expresses readiness to rally Nigerians to reject every attempt by President Buhari and the All Progressives Congress (APC) to introduce the long-forgotten trappings of military dictatorship into our democratic rule, which Nigerians laboured for many years to attain,’’ the statement read in part.
The party further expressed readiness to make President Buhari account for what it called criminal abuse of human rights allegedly perpetrated under his stewardship in the past three years.
The statement continued: “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; a pattern that is characteristic of known dictators all over the world, as expressed in the obnoxious Executive Order 6, designed to justify a complete clampdown of political opponents ahead of 2019 general elections.
“President Buhari should therefore be made to answer for the litany of human rights violations in Nigeria, including documented disobedience to court orders, destruction of property, restriction of free speech, press, official corruption and lack of accountability as detailed in report by various international bodies, including Transparency International (TI), Amnesty International (AI) and US Department of State.
Turaki faults Buhari
PDP presidential aspirant, Barrister Tanimu Turaki, also faulted the President.
Turaki, who is a Senior Advocate of Nigeria, argued that the position of the President was illegal on the strength of the fact that it is inconsistent with the provisions of the constitution which is the supreme law of the land.
Turaki, who reacted on the sidelines of a visit to the Edo State chapter of the party, said there was danger in the position of President Buhari because his government and his party, the APC, may have a sinister motive of clamping down on the opposition under the guise of national security as the country heads to the 2019 general elections.
He lamented that the president is attempting to interpret the law illegally just as he said that he and the APC had been equating national interest with either personal interest or the interest of their party.
We’re under full-blown dictatorship —Afenifere
Faulting the President’s remarks, the pan-Yoruba socio-political organisation, Afenifere, said the statement showed Nigeria was under full-blown dictatorship.
Afenifere’s National Publicity Secretary, Mr. Yinka Odumakin, said: “It is clear that by that statement, the President has abrogated the rule of law in Nigeria and it signals a descent into full-blown dictatorship under a civilian dispensation.
“To make such proclamation and give the impression that the rule of law is subject to the interpretation of the President, it means that we have a democracy that is lifeless. Once you remove rule of law out of a democracy; it means that democracy is lifeless. So, clearly, our worst fears have come to play.
“We are less than six months to the general election and the President has not assented to the Electoral Act and Section 2 (1) of the ECOWAS Protocol states that no member country can change its Electoral laws six months to election.
“To the President, the law is the rule of tongue in Nigeria and once we have this type of system in a democracy, we are under full-blown dictatorship.”
Govt has lost the argument — Osuntokun
On his part, a chieftain for the Coalition for Nigeria Movement (CNM), Akin Osuntokun, said: “Well the fact that he chose the gathering of the NBA to issue the declaration is itself significant and symbolic. This is what happens when the government of the day has lost the argument.
“He has thrown a challenge at the Nigerian public, so it is up to the people to reclaim the fundamental notion of democracy that power belongs to the people. It seems it is also a case of a leopard who is inherently unable to change its spots. Good enough, there is an opportunity coming soon for the Nigerian electorate to liberate itself.”
It’s autocracy — Abaribe
Also reacting, Chairman, South East Senate Caucus, Senator Enyinnaya Abaribe, faulted the President’s remarks. Senator Abaribe who represents Abia South senatorial district, said the rule of law was the grundnorm of any democratic society. He submitted that any act of governance that runs at variance with the rule of law presupposes autocracy.
“Rule of law is the grundnorm of any democratic society. Elevating any other thing above it means moving away from democracy to autocracy,’’ he said.
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