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Rule of law and security (1) By Femi Falana

Introduction 

From 1984-1999, I was subjected to constant harassment by the security and intelligence community in Nigeria. Not for posing any threat to national security or for contributing to the economic adversity of the country. But for teaming up with other patriotic forces to challenge  unbridled corruption, unabashed executive lawlessness, gross human rights abuse and other illegal activities which subverted national  security and endangered the welfare of the people of Nigeria under successive military regimes.

Femi Falana

Owing to the refusal of the civilian wing of the political class to demilitarize  the  polity there has been unsettled debate over the primacy of national security over the rule of law. Majority of political office holders in the country are not committed to the observance of the rule of law. In place of the rule of law the political system has enthroned the rule of might or rule of rulers. The debate over the clash between the rule of law and national security has been reopened by President Muhammadu Buhari at this conference when he enjoined Nigerian lawyers and judges to realize that national security takes precedence over national security. A few days before then, the President had threatened to jail looters who had sabotaged the security of the nation by diverting huge funds earmarked for the development of the country. It is implied in the presidential declaration that the alleged looters cannot be jailed without a trial conducted in criminal courts under the rule of law.

In striking a balance between national security and rule of law in a democratic setting I intend to review physical security, social security,  human rights, the management of national security by security agencies and the subversion of national security by the government. Since State security is often confused with government security it is germane to explain the two concepts. I shall conclude by making a case for the enforcement of the socioeconomic rights of the masses as our country cannot have national security without social security.

National Security, Human Rights and Rule of Law

On July 17, July 2018,  President Muhammadu Buhari had the rare privilege of participating in the activities marking the 20th  anniversary of the International Criminal Court. On that auspicious  occasion the Nigerian leader assured the international community that “our cooperation with the Court is borne out of our strong belief in the respect for the rule of law and human rights…” On the basis of such assurance from the President  we are compelled to review  the disturbing culture of disobeying court orders by officials of the federal and state governments under the current democratic dispensation. I want to believe that the President is not unaware of the respect for human rights is the fundamental basis of a democratic society that is genuinely committed to the consistent implementation of the rule of law. Human rights are indeed the basic building blocks that governments must cultivate in order to have an effective relationship with the general population. The extent that the protection of these rights is guaranteed signifies the democratic strength of a country. Indeed, human rights and the rule of law are crucial to the well being of any truly democratic society. These rights include not only civil and political rights but also economic, social and cultural rights. They are articulated and entrenched in national constitutions and the Charter of the United Nations, the Universal Declaration of Human Rights and other human rights treaties to which Nigeria has subscribed.

Human rights, the rule of law and democracy are interlinked and mutually reinforcing: they are part of the universal values and principles espoused by the international community. Nevertheless, it must be noted that since the birth of the human rights movement in the mid-twentieth century, the promotion of human rights and the rule of law has been seen as competing with or even compromising core issues of national security. Promoting human rights is now frequently viewed as a luxury, to be pursued when the government has spare diplomatic capacity and national security is not being jeopardized. In Nigeria, there is a continuing tension between national security and respect for human rights. While human rights and the rule of law are concerned with limitations on state power, national security, by contrast, is intertwined with assertion of state power. The result of this has often been the marginalization of human rights in the name of national security by successive governments. The subordination of human rights to national security has been a permanent feature of Nigeria’s political history. More than anything else, high level official corruption (and associated human rights violations) poses a major threat to national security, human security and individual human rights in Nigeria.

A false dichotomy

As recent experience has shown, it is problematic to place the security of the state entirely above the interests of individual citizens. Placing security concerns in direct opposition to human rights creates a false dichotomy. Each is essential for ensuring that a society is both “free” and “secure.” Privileging one over the other can have unintended negative consequences. It is therefore important for Nigeria to strive to nurture the synergies between the two, and to incorporate human rights into national security strategies. I recognise that it can be difficult to find a balance between ensuring national security on the one hand, and preserving human rights and the rule of law on the other. Nevertheless, I firmly believe that both security and human rights can fully coexist and are absolutely necessary to prevent breakdown of law and order. The interdependence between national security, human security, individual freedoms and democracy cannot be over-stressed. In democratic societies human rights are at the core of national security itself. I posit that the purpose of national security should be to protect democracy and enhance democratic principles.

A conception of national security, which sees the threat as not merely encompassing the personal security of citizens but also the good order of political institutions, necessarily leads to a view of the democratic state as both protector against, and contributor to, the threat. In the latter regard, the cry of ‘security’ often functions politically “as a sort of intellectual curare,” permitting the executive to stifle criticism, maintain political orthodoxy, and prevent debate by claiming knowledge — which cannot be revealed — to support what are essentially arbitrary political initiatives.It has been argued that “men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law” .   According to this assumption, the basis for any national security policy must be grounded in a deep respect and consideration of human rights and the rule of law. These values and principles are well entrenched in the Constitution, and articulated in international human rights treaties to which Nigeria is a state party. Therefore, the government has a legal responsibility to preserve and promote all human rights as well as the rule of law. Undermining these fundamental values would go in the direction wished by those whose aim is to destroy democracy through the use of violence in its most inhuman form.

It must however be pointed out that international human rights treaties such as the International Covenant on Civil and Political Rights to which Nigeria is a state party provides for exceptional circumstances in which certain rights ie under article 12 on freedom of movement may be restricted. This provision authorizes the State to restrict these rights only to protect national security, public order (ordre public), public health or morals and the rights and freedoms of others. However, to be permissible, restrictions must be provided by law, must be necessary in a democratic society for the protection of these purposes and must be consistent with all other rights recognized in the Covenant. In General Comment 27, (adopted in 1999) the Human Rights Committee, a body established pursuant to the International Covenant on Civil and Political Rights, stated that the law itself has to establish the conditions under which the rights may be limited. Restrictions which are not provided for in the law or are not in conformity with the requirements of the Covenant would violate human rights. According to the Committee:

In adopting laws providing for restrictions permitted by the Covenant, States should always be guided by the principle that the restrictions must not impair the essence of the right ;   the relation between right and restriction, between norm and exception, must not be reversed. The laws authorizing the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution. It is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them”.

As suggested above, advancing human rights must be a central pillar of Nigeria’s national security policy. Rather than being competing goals, human rights and national security are in fact complementary. National security could be enhanced by a greater emphasis on the promotion of human rights. Since human rights provide the basis for social interaction in democratic societies, they must be protected. The cost of living in a society that human rights are not protected could not be justified by anything. The cost would be too high. I must make this additional point: Nigeria’s democracy must strive to meet three objectives of ensuring the rule of law; striking a balance between the short term and the long term, and between the individual and the community; and protecting the rights of minority groups. I will explain very briefly each of these objectives. First, the rule of law. Good Governance requires the rule of law. Having good laws on the statue books is not enough. Laws must be implemented and enforced fairly and consistently in a transparent way or they risk becoming dead letters or, worse, instruments of oppression. There must therefore be some separation of powers and an independent judiciary. Furthermore, corruption is a long standing problem that has to be combated.

Balance between short term and long term

Second, a balance must be struck between the short term and the long term, and between the interest of the individual and the interest of the community. Electoral politics put pressure on governments to respond quickly to the needs of voters. Nobel laureate Dr. Amartya Sen pointed out that famines in India have become a phenomenon of the colonial past because Indian politicians today know they would be thrown out of office if they did not respond quickly to food shortage. All this is good but the problem with electoral politics is that the time horizon of political leaders shortens and pandering to the demands of special interest groups may be unavoidable. Larger and longer term considerations are often set aside as politician concentrate on winning the next elections. A democratic system which creates a good balance between the short term and the long term, and between the individual and the community, will be better able to achieve respect for human rights and security.       Third, we must protect the rights of minority groups. No country on earth is homogeneous. Nigeria must be very sensitive to the protection of minority rights.

Democracy is therefore a means to achieve better governance, never an end in itself. What is important is to put human beings living in communities at the heart of women, children, physically challenged persons and other vulnerable groups in the society. The word ‘demos’ referring to people has as its specific context of people living in community. We associate counting votes with democracy but there are so many ways to structure a voting system which can lead to very different outcomes. Democracy should always be structured to facilitate good governance, never to make it harder. However, as the global environment changes, as technology changes, our system has to evolve in tandem. For example, with the growing number of Nigerians living overseas, we must find ways to enfranchise them. Maintaining a sense of belonging to a larger Nigerian community is essential. Without voters feeling a sense of commitment to one another, a democratic system cannot work well. In summary, the Nigerian government must comply fully with its national and international legal obligations to uphold human rights in all its actions so as to ensure security through the crucial protection of human rights and the rule of law. The government must demonstrate the commitment in deed and not merely in words to respect the rights and freedoms of citizens and to promote human rights. It is absolutely important that any measures limiting human rights are in compliance with international law.

The government should re-commit itself to the achievement of the Millennium Development Goals as a means of addressing underdevelopment and preventing the marginalization of many in the country. There is also the need for a strong and effective mechanism whether within the National Assembly or civil society to oversee executive action, including when they vote on the budget and monitor its implementation, to ensure that a balance is struck between national security, human security and individual freedoms, and to avert any threats to democracy. National security must be reduced to its absolute minimum — what I call a democratic conception of national security. The use of extraordinary measures in the name of national security for any other purpose should therefore be discouraged. Nigeria’s national security institutions must be effectively regulated and made accountable. The government must adopt broad-ranging measures geared to develop an effective institution with an appropriate organizational culture for a democratic society as well as the direct and mandatory involvement of the National Assembly in after-the-fact review. In the final analysis, it is essential to place further legal limitations on government’s use of special national security measures.

The abuse of national security

For several years after independence the central pillar of Nigerian national security was the safeguarding of the “sovereign, independence and territorial integrity of the State”. A former Inspector-General of Police once stated that “national security entails the measures, facilities and systems put in place by a nation to secure its citizens and resources from danger and the risk of infiltration, sabotage, subversion or theft etc.”    But to a group of civil society organizations the term ‘national security’ implies “the absence of threat to life, property and socio-economic wellbeing of the people”.   The latter view tallies with Section 14(2)(b) of the 1999 Constitution which states that “the security and welfare of the people shall be the primary purpose of government; and the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution”

Being the paper presented by Femi Falana SAN at the 2018 Annual Conference of the Nigerian Bar Association held at Abuja from 27-31 August 2018


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