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Between the ‘rule of law’ and ‘national security’

By Obi Nwakanma

In his address to the convention of lawyers at the 2018 annual conference of the Nigerian Bar Association, President Muhammadu Buhari said inter alia: “the rule of law must be subject to the supremacy of the nation’s security and national interest.” It was a rather weird declaration by a president who was elected constitutionally. But it does appear that two very possible things are happening here: first might be that Mr. Buhari is making a power grab, and laying the early grounds for his future political actions as we approach the bellwether 2019 elections; and the second might be that this president genuinely does not know exactly the meaning of “the rule of law,” has no understanding of the institutional framework of the system of government of which he is executive head, and is profoundly therefore ignorant of the meaning of nation and the modern state as established by law. In either situation we have a problem.

Rule of law

The problem, one of a president who is preparing a move to subvert the rule of law, and two, the problem of a president who appears not to understand the basic philosophical terms of the meaning of the concept itself of the “rule of law.” The life, meaning, and being of a nation is established by its laws. Without these laws that consecrate nationhood, what we have is an arbitrary condition. Surely, Mr. Buhari ought to know this. But perhaps he does not. Perhaps he is a mere ventriloquist to his Attorney-General of the Federation.  It was Mr. Malami after all, who first flew this kite when he insisted very publicly that the president has the right, even the obligation, to abridge the fundamental rights of a citizen in pursuit of the higher national security interest of the state. He was speaking with regards to the illegal detention of the former National Security Adviser, Mr. Dasuki. But no, the courts have said. The president has no such power to detain or order the detention of a citizen. The only power to order the arrest and imprisonment of a citizen is reserved under the constitution to a properly established court. The enforcement of such an order is reserved to the executive through the police.

When a judge orders the release of an individual under the protection of the law, it is expected that this order must be carried out by the state whose executive function is constituted to balance the authority of the courts. These powers are presumably constituted under the fundamental act of parliament establishing the Federal Republic of Nigeria. There is no higher principle, nor higher purpose, nor higher obligation than these laws. At his inauguration, the president took the oath of allegiance to Nigeria, and the oath of office to protect the constitution and administer Nigeria constitutionally. These oaths are not mere rituals. They make certain conducts in office both obligatory and imperative. They also imply sanction. Any president who by acts of omission or commission breaks the laws of Nigeria, or subverts his oath taken before assuming the offices established by law, is subject to sanction. Parliamentary rule establishes the means by which a legislator can be removed from office and tried for any offences. The only person that can issue an order to the police to arrest a legislator outside of the parliamentary building is a judge who also tries him for any offence including corruption, having obtained the symbolic withdrawal of the legislator’s immunity from his/her parliamentary peers. Normally, with regards to judges, a judge can only be stripped of his powers by a tribunal of his peers after an impeachment proceedings by the parliament.

A president or an executive governor can be impeached by parliament and removed after a tribunal established by the Chief Justice of the federation has tried him. This is procedural rule. It is an act of willful brigandage to set policemen and the secret service to raid a judge’s house, much less the home of a Justice of the Supreme Court of Nigeria, drag him out of his house at midnight, lock him up in jail, and force a trial of the Supreme Court Justice by a high court judge on the charges of corruption.

This is the kind of conduct that corrupts, and damages the institutional systems designed to protect the state. It is the appropriation of arbitrary power. Even if a Supreme Court Judge is corrupt, the proper thing is to quietly investigate him, bring the unalterable evidence before the judiciary Committee of the National Assembly which would then seek his impeachment, and thereafter, try him by a tribunal of his peers. That is as it should be. But given that age is the only means by which the current constitution removes a sitting Supreme Court judge, and at this stage of the jurists career, the constitution grants that office the privilege of perpetual immunity and protection, to violate that sanctity of the bench is sacrilegious. More than anything, the weakening of the institution of state destroys its national security capacity. It is not the conduct of the citizen that threatens national security. It is the failure, and decomposition of the foundational systems designed to protect the state and secure the citizens from the abscess of extreme actions. This is what President Buhari and his handlers do not quite comprehend. It is the situation of the “Agbero presidency” to govern by force, and to deploy executive authority outside the laws establishing the state itself. This president should not want to be known as an “Agbero-president.”

A president that does not understand that the rule of law is the only principle that safeguards the nation and its national security, and who thinks that some ambiguous, totalizing concept called “national security” is superior to the state itself is an Agbero-president. To use the “boys-oye!” method to do the serious and sober business of government is the highest form of ignorance and incompetence.

It typifies an arbitrary society, and it indicates the quality of mind of the individual who rather than govern with laws, threatens the state with subversion. That is indeed what this president has threatened: that he is prepared to subvert Nigeria – Nigeria being a nation constituted by law and established under the rule of law – in pursuit of some arbitrary notion called “national security interest.” We are a nation of laws. Nigerians fought military rule precisely to establish the rule of law.

Therefore the rule of law is supreme, and is the foundation of its national interest, not the other way round. President Buhari was elected under the rule of law. There is no higher purpose for a nation other than to safeguard its citizens under the rule of law which guarantees, harmony, social order, prosperity, and the security and equality of citizenship. That is the sum of the national interest: those principles already established under the constitution of the republic. To subvert that constitution willfully, and with intention to disorganize and re-interpret its purpose, and goals is actually the legal meaning of treason.

Now, therefore, what is Nigeria is “national security” and what is her “national interest?” The constitution already defines that as I’ve noted. And the only body given the power to interpret what constitutes “national security” and what’s Nigeria’s “national interest” is the judicial arm of the state. The only body under the constitution empowered to make laws that guarantees and perpetuates Nigeria’s national security interest – whether it be economic security, social security, human security, the security of life and property, security from arbitrary rule, security from foreign invasion, etc., is the National Assembly. It is not the president. The president, as chief executive of the federation is empowered only to govern with, and execute the laws made by the National Assembly, and enforce the orders made by the judiciary. To put it plainly, President Buhari does not have the power or the sole authority to determine what constitutes Nigeria’s “national security” or her “national interest.” The laws of Nigeria already establishes that. The president does not have the mandate therefore to subvert the laws in pursuit of his own arbitrary notions of “national security” and “national interest.”

By what authority does he derive such a power? As a matter of fact, I think the president is being improperly advised in some of his actions and utterances, both by the Attorney-General (who by the way is not his personal counsel) and by his own Personal legal adviser in the presidency, each of whom should have given the president proper counsel, and clarity on these issues, but clearly failed. The philosophy of the state and of the modern nation upon with the grundnorm of law is based, which should be elementary knowledge to anybody with as much as a good high school education, has a clear cartography of power. It is not within the powers of the president to define “national interest” or “national security.” This president cannot ignore court rulings, nor should he be allowed to govern outside of the rule of law. It is incumbent on the National Assembly to act as the adult in the room, and establish a serious check on the conduct of this president, and investigate and sanction his serial, clearly deliberate misuse of power and his disregard of the constitution which he swore to protect and govern by. Not to check this president endangers the National security and the national interest of the federation of Nigeria.

 

 

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