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National security is subject to rule of law (3) by Femi Falana SAN

Insecurity

National Interest Vs Rule Of Law : National security is subject to rule of law (3)

Specifically, the Federal Government has refused to carry out the order of  the Court of Justice of the Economic Community of West African  States (ECOWAS Court) made  in 2009 that every Nigerian child be given quality education as well as the order  of the Federal High Court made in 2012  that the scrapped Peoples Bank be re-established  to give loans to underprivileged citizens. Even the order of the Federal High Court made in 2016 directing the Federal Government to account for the stolen funds recovered since  1999 has not been complied with.

Femi Falana

It is common knowledge that the Attorney-General of the Federation, Mr. Abubakar  Malami SAN has said that  Colonel Sambo Dasuki (rtd),   Sheik Ibraheem Elzakzaky and his wife, Hajia Zenab  Elzakzaky would not be released from custody  in defiance of the valid and subsisting orders of municipal and regional courts. While the attention of the print and electronic media has been focused on the three privileged citizens it is hardly realized that there are many other “common people” who are languishing in custody due to official disobedience of the orders  of courts which have set them free. And since judgment creditors are prohibited from levying execution on  the funds belonging to the Government without the fiat of the Attorney-General,  the Federal Government and the various state governments usually  refuse to authorize the payment of damages running to several  billions of Naira  awarded by courts  in favour of many citizens and institutions.  It is painful for me to recall that military dictators did not openly defend disobedience to court orders under the pretext of protecting national security. At this juncture it is pertinent to review the attitude the defunct military regimes to court orders

Attitude of military dictators to court orders

In January 1966, the Constitution was suspended while fundamental rights were put in abeyance by the military junta which sacked the Tafawa Balewa administration. To justify the detention of citizens without trial the Aguiyi Ironsi regime issued individual detention orders for  detainees. But the Yakubu Gowon regime discarded the practice and promulgated the State Security (Detention of Persons) Decree no 24 of 1967. The decree was grossly abused as critics like Wole Soyinka, Gani Fawehinmi, Aper Aku, Air Iyare, Tai  Solarin etc were detained without trial. Despite the fact that the country was under the jackboots the courts never hesitated to order the release of several persons whose detention was found to be patently illegal.The locus classicus during the era was the case of Agbaje v   Commissioner of Police (1967) NMLR 65 wherein Akinola Aguda J. (as he then was) struck down the detention order and released the applicant, who was then the lawyer of the Agbekoya farmers in the western region. The judgment was upheld by the Western State Court of Appeal which commended the trial judge for treating the matter with admirable dispatch and exceptional courage.

While the Murtala Mohammed regime never detained any person under the preventive detention decree the Olusegun Obasanjo regime invoked it to detain some progressive lecturers, student leaders, trade unionists and other critics of military dictatorship. But following the termination of military rule in 1979 the fundamental rights of citizens were restored. Consequently, the courts regularly ordered the release of citizens who were detained illegally and  awarded damages  to them in deserving cases. However, when the Shehu Shagari administration was illegally sacked  in December 1983, the Buhari/Idiagbon military junta enacted the State Security (Detention of Persons) Decree no 2 of 1984. The decree was recklessly used by the National Security Organisation (now State Security Service) to detain hundreds of citizens without trial.

For my involvement in  the defence of the late Fela Anikulapo-Kuti in a criminal case, I was illegally arrested and incarcerated for six weeks in 1985 under the obnoxious Decree No 2. But notwithstanding the illegality of my detention and the fact that it was General Buhari that had promulgated the decree I was able to convince my colleagues in the human rights community to demand for his release and that of his deputy, the late General Tunde Idiagbon from detention.  It is on record that based on our intervention the Ibrahim Babangida junta released the duo after 3 years of detention without trial. Scores of other politicians and activists were detained during the military era. But there was not a single case where the order of a court for the release of any detainee was ignored. In fact,  the defendants who were granted bail by special military tribunals and  criminal courts were released once they met the bail conditions. For instance, the four pro-democracy activists  and I  who  were arraigned on the frivolous charges of conspiracy and treasonable felony at the Gwagwala Chief Magistrate Court on May 19, 1992 for purportedly planning to overthrow the Ibrahim Babangida junta were admitted to bail. Despite the gravity of the charges we secured our liberty as soon as we met the bail conditions imposed by the trial court.

However, it is on record that apart from the area of civil liberties, successive military regimes treated court orders in many other  matters with disdain. Fortunately for the country, the courts took up the challenge of defending the rule of law. As a matter of fact, the epochal judgments of that era were reviewed in Professor’s Itse Sagay’s book on “Legacy for Posterity: The Work of the Supreme Court (1980-1988)”. One of the judgments reviewed in the book is that of the Military Governor of Lagos State v. Chief Emeka Ojukwu (1986) 1 NWLR (P 18) 621 at 627 wherein the Supreme Court   noted that “in any country where the rule of law operates, the rule of self-help by force is abandoned.   Nigeria being one of the countries in the world even in the third world which proclaim loudly to follow the rule of law, there is no room for the rule of self-help by force to operate”. Similarly, in Garba v. F.C.S.C. (1988) 2 NWLR (PT 88) 449 at 454 the Supreme Court  observed  that “The military in coming to power is usually faced with the question as to whether to establish a rule of law or rule of force. While the latter could be justifiable a rule of terror, once the path of law is chosen the mighty arm of government, the militia which is an embodiment of legislature and executive must in humility bow to the rule of law thus permitted to exist. The rule of law knows no fear, it is never cowed down, it can only be silenced. But once it is not silenced by the only arm that can silence it, it must be accepted in full confidence to be able to justify its existence.”

Encouraged by such progressive stand of the judiciary in defending the rule law under the jackboots  the Nigerian Bar Association (NBA) kicked against disobedience of court orders by the military regimes. This was amply demonstrated by the NBA under the leadership of the late Comrade Alao Aka-Bashorun in 1988 when Nigerian lawyers  were directed to boycott all courts to protest the disobedience of a single court order in the former Gongola State. Incidentally, Mr. Boss Mustapha, the current Secretary to the Government of the Federation was the local Chairman of the Yola branch of the Nigerian Bar Association at the material time. Regrettably, the NBA has since become so comfortable with the subversion of the rule of law that it now blows muted trumpets when several court orders are disobeyed by highly placed public officers under the current political dispensation. But bit is a doctrine which is always applied during wars ar emergency situations.

Disobedience of court  orders  by  elected governments

The statement made by President Buhari that   the liberty of individual citizens has to give way when it comes into conflict with the security of the State cannot be disputed. It has been captured in the legal maxim of   salus populi suprema lex.   But in Agbaje v. Commissioner of Police (supra) the learned trial judge dwelt in extenso on the doctrine when he said “…it is clear that in the process the courts have a vital role to play in fact it is partly for the resolution of such conflicts that the Courts of the land have been established. If the resolution of such a conflict is left in the hands of any arm of the executive e as in this case where the power to put a citizen in custody for no proved offence is left at the discretion of the Inspector-General of Police by an Act of the Legislative body, then the role left for the Courts to perform is to make sure that the Inspector-General of Police conformed strictly with the enabling legislation. Once I am satisfied that he conformed with the provisions of the Act,, and also that persons carrying out his orders likewise conformed with those provisions. I do not conceive that it is part of my duties to inquire at any rate in this suit, whether Decree No. 24 is valid or not.”

It is submitted that it is the exclusive duty of the courts under a democratic dispensation to interpret the Constitution and other laws. The executive organ of government cannot detain citizens for security reasons and disregard the orders of the court for the release of such persons if it is found that the detention has nothing to do with national security. However, it has to be conceded that under a democratic dispensation the fundamental rights of individuals may be suspended in certain circumstances. Hence, section 45(1) provides that “Nothing in sections 37,38,39,40 and 41 of this Constitution shall invalidate any law that is reasonably justificable in a democratic society:(a)           In the interest of defence, public safety, public order, public morality or public health; or (b)           For the purpose of protecting the rights and freedom of other persons.” In Dokubo-Asari v. Federal Republic of Nigeria (2007) 30 WRN 1 at 45 the Supreme Court recognized the priority of national security over the personal liberty of individual citizens. According to Tanko Muhammed J.S.C.

Nigeria as united, harmonious, indivisible and indissoluble sovereign nation

“The pronouncement of the court below is that where National Security is threatened or there is the real likelihood of it being threatened human rights or the individual right of those responsible take second place. Human rights or individual rights must be suspended until the National Security can be protected or well taken care of. This is not anything new. The corporate existence of Nigeria as united, harmonious, indivisible and indissoluble sovereign nation, is certainly greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist.”

It is common knowledge that disobedience of court orders is not uncommon in some democratic countries. But it is the duty of every government which is committed to the defence of the rule of law to ensure that court orders are complied with by all authorities and persons. It was such fidelity in the rule of law that compelled President Dwight Eisenhower  in the fall of 1957 to  place 10,000 the  members of Arkansas National Guard  under federal control and dispatched 1000 United States Army Paratroopers to  assist  them in enforcing the judgment of a federal court for the admission of nine black students to the Central High School, Little Rock,  Arkansas. The ruling was anchored on the judgment of the Supreme Court in the celebrated case of Brown v Topeka 347 U.S. 483 (1954) which had abolished segregation in public schools in the United States. In justifying his action, President Eisenhower said that “the very basis of our individual rights and freedoms rests upon the certainty that the President and the Executive Branch will support and insure the carrying out the decisions of the Federal Courts, even, when necessary with all the means at the President’s command.”

In the light of the foregoing, the federal government has as duty to take urgent and decisive measures to put an end to the disobedience of court orders  by many  public officers and institutions. Since  section 287 of the Constitution has imposed a binding obligation on all authorities and persons in Nigeria to comply with the decisions of competent courts, public officers who subvert the rule of law ought to be sanctioned.  Furthermore, in view of the fact that President Mohammadu is the current Chairman of the Economic Community of West African States the Federal Government  should show leadership by example by complying with all  the judgments of the regional court without any  further delay.

Conclusion

Our experience has shown that the rule of law is violated  by the federal and state governments as well as powerful individuals in the society through the following acts of impunity:

(i) Deliberate  breach of the provisions of the Constitution and other extant laws;

(b) Compromise of the investigation of criminal cases by law enforcement agencies;

(c) Refusal of Attorneys-General to prosecute  indicted criminal suspects, and

(c) Disobedience of court orders.

The aforementioned acts of sabotage of the rule of law  are carried out by the highly placed agents of impunity with the active connivance of lawyers. Experience has shown that  governments are given legal advice by Attorneys-General while the rich and powerful people are advised by senior lawyers to comply with the provisions of the law or the decisions of the courts. Regrettably, the Nigerian Bar Association has failed to sanction the activities of Attorneys-General and senior lawyers who engage in the subversion of the rule and national security.

A few months ago, I was compelled to request the NBA leadership to sanction some state Attorneys-General for their failure to charge the scores of suspects who had been indicted for culpable homicide or murder to court. The NBA did not even acknowledge the receipt of the letter not to talk of acceding to my request. I was not taken aback having regards to the fact that the national conferences of the NBA and the election of its national officers are largely bankrolled by governments. If this conference is interested in ending impunity in the country it must start with the NBA. In other words, we must put our house in order. This conference must  resolve to reorganize the NBA. A law society which engages in fraudulent election of its officers via e-voting lacks the moral capacity to condemn electoral malfeasance perpetrated by the political class.

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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