By Tani A. Molajo, SAN
The title of this commentary is inspired by the sanguine affirmation made by Lord Atkin over 70 years ago in his dissenting judgment in Liversidge v. Sir John Anderson & another (1942) AC 266 @ 244, to wit:
“In this country, amid the clash of arms, the laws are not silent. They may be changed but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that judges are no respecter of persons and stand between the subject and any attempted encroachments on his liberty by the Executive, alert to see that coercive action is justified IN LAW”
Though rendered by an English Court (the House of Lords), that judgment remains of profound Nigerian – nay, universal importance. It exhaustively addresses the problems of public emergencies, threats to national security and the absolute imperative of keeping the rule of law in sharp focus even at such times.
Inevitable and imminent
To understand what the case was all about, we must go back to the summer of 1939. During that summer, war with Germany had not begun, but it was widely believed in England to be inevitable and imminent. Contingency plans were being made. It was feared that if war came, there would be people in Britain – spies, agents, Nazi sympathisers – willing to help the Germans and undermine the security of the British state. A Bill was presented to Parliament to provide emergency powers to meet this apprehension. Under the Bill, Defence Regulations could be made which would:
“(a) Make provision for the……detention of persons whose detention appears to the Secretary of State to be expedient in the interest of the public safety or the defence of the Realm”.
There was some opposition in the House of Commons, but the objections were not pressed, and this clause became law. Defence Regulations were then made. As finally formulated, the Regulation relevant to Liversidge v. Anderson (supra) stated thus:
“If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.” (See page 226 of the law report).”
I draw attention to the words: “If the Secretary of State has reasonable cause to believe…”. That wording made it plain that the judgment was one for the secretary of State alone. In the circumstances, a person might be wholly innocent and yet could be locked up, indefinitely, without trial, because the Secretary of State was satisfied that it was necessary to do so for purposes of national security or defence. I have no doubt that every lawyer will recognise this as a very far reaching and extraordinary power to give to any Minister. It was the sort of power exercised by the Stuart and Tudor Kings; in France before the Revolution; in Stalin’s Russia; in Nazi Germany and sadly, not too long ago, in Nigeria under the dreaded State Security (Detention of Persons) Decree No 2 of 1984 which empowered the Chief of Staff Supreme Headquarters to detain anyone suspected of being a security risk indefinitely without trial. Under that infamous Decree, detention was for three months in the first instance; renewable for further successive periods of three months. Under Decree 2, many perceived “enemies” of government were detained in NSO cells and allegedly tortoured. Second Republic government officials whom the succeeding military regime held collectively responsible for the country’s economic adversity were either detained without trial or were tried by special military tribunals. At those tribunals, the accused was presumed guilty until proved innocent. Thus was the presumption of innocence subverted. Social critics and human rights activists were routinely detained – Gani Fawehinmi, Tai Solarin, Femi Falana, Balarabe Musa, to mention but a few. Such powers are utterly abhorrent to libertarian thinking and in this country our objections against them were vociferously and repeatedly vented through our courts, albeit with limited success.
Viability of legal challenges
However, it is with considerable satisfaction that one recalls that even in the face of Decrees expressly made exempt from legal challenge, notably Decree 2 and Decree 4, the courts remained open, willing and able to consider the viability of legal challenges to governmental action. Lawyers and judges continually explored the outer limits of constraining Decrees with commendable ingenuity. Governmental action purportedly done under Decrees which included provisions ousting the jurisdiction of the courts was from time to time declared invalid on the ground that there had been no strict compliance with such Decrees. In other words, ouster clauses, no matter how lavishly and comprehensively crafted they appeared to be, were not protective in all circumstances.
Even in the face of the suspension of a large number of the provisions of the 1979 Constitution by the Constitution (Suspension & Modification) Decree 1984 No 1, the rule of law stoutly held its place. As observed by Hon. Justice Kayode Eso, JSC in his characteristically bold and forthright manner in the celebrated case of Military Governor of Lagos State v. Chief Emeka Odumegwu Ojukwu (1986) NWLR (Pt. 18) 621:
“Indeed, what was left was what had been permitted by the Federal Military Government to exist. All the provisions relating to the Judiciary were saved. Section 6 of the Constitution, the most important provision, in so far as the institution known as the Judiciary is concerned, which vests in courts the judicial powers of the Federation was left extant. The Military Government had the power and still has to put an end to the existence of that provision, but it has not done so, and that must have been advisedly for it does intend that the rule of law should pervade. It is the dearest indication against rule by Tyranny, by sheer force of arms against a presumption subjecting the nation to the rule of might as against rule of right.”
Equally weighty is the opinion of Andrews Otutu Obaseki, JSC on the same occasion:
“The Nigerian Constitution is founded on the rule of law the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the framework of recognised rules and principles which restrict discretionary power…the rule of law means that disputes as to the legality of acts of government are to be decided by judges who are wholly independent of the executive. That is the position in this country where the judiciary has been made independent of the executive by the Constitution of the Federal Republic of Nigeria 1979 as amended by Decree No. 1 of 1984 and No. 17 of 1985. The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the government and all persons in Nigeria. The law should be even handed between the government and citizens.”
Further still, commenting on the unwillingness of the Lagos State Government to yield to the undoubted supremacy of the rule of law, Oputa, JSC declared:
Goodbye to the Rule of Law
“The court system cannot be maintained without the willingness of parties to abide by the findings and orders of a competent court until reversed on appeal. This presupposes that no party…can say:- “I do not like the order made and I will not obey it.” And that is exactly what the Lagos State Government is doing in this case. And that posture has to be condemned in the strongest of terms if we are not to say goodbye to the Rule of Law”.
It is in the light of the foregoing firmly established position of the law and the danger which any detracting view portends that the statement recently made by President Muhammadu Buhari that the rule of law is subject to national interest is both baffling and concerning. In my respectful understanding, the rule of law is absolute; it is neither relative nor comparitive – it is not qualified or diminished by any circumstance whatsoever. It is what Sir Edward Coke, former Solicitor General for England and Wales, colourfully described as “the golden and straight metwand of the law as supposed to the uncertain and crooked cord of discretion.”
Section 6 (6) of the Constitution of the Federal Republic of Nigeria, 1999 guarantees plenary access to the courts of the land. Such access is subject only to the restraints created by the Constitution itself e.g. express limits of prescribed jurisdiction. Of what value is access to court when court orders are subject to a self – assumed vetting authority of the Executive branch of government? Such compromise and dilution of access to court is obviously outside the contemplation of our Constitution. Our Constitution has not vested any judicial powers in the Executive. Pressed to its utmost inference, any usurpation of judicial power by the Executive is tantamount to an attempt to govern Nigeria otherwise than as provided by our Constitution. That must never be. Let us keep strictly in view Section 1 (2) of the same Constitution which expressly warns that:
Power to vet the decisions of our courts
“The Federal Republic of Nigeria shall not be governed…except in accordance with the provisions of this Constitution.”
Let us also be admonished that when the Executive purports to reserve to itself the power to vet the decisions of our courts, the relevance of one of the three organs of the Sovereign State established by Section 2 (1) of the Constitution as the Federal Republic of Nigeria, the Judiciary, is gravely impaired. Let the Executive leave our Judges where Section 6 (1) of our Constitution has placed them – as sole custodians of the judicial powers of the federation. And finally, let us always remember that as declared by the very first section of our Constitution:
“This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”.