By Femi Aribisala
GENERALS are, by experience and training, men of courage. They are hardy perennials; men who have distinguished themselves over the years in the field of battle. They are military tacticians who devise the ways and means for defeating the enemy. Great generals fear no foe, even those battle-ready and well-equipped.
One such general must surely be Muhammadu Buhari, the current president of Nigeria.
It is always necessary to remember that before President Buhari became president, he was a general. As a matter of fact, our dear president has been, for the major part of his life, more general than president. If the popular Nigerian axiom says: “once a Senator, always a Senator;” it is even more appropriate to say: “once a General, always a General.” President Buhari was, is, and always shall be, a General.
Therefore, it comes as no surprise that, displaying the fierce courage of a general, President Buhari took the battle directly to the homestead of the Nigerian Bar Association. Asked to deliver the keynote address at their latest convention, the President decided to give them a lecture on the finer points of the law. He provoked them by choosing or agreeing to talk about “The National Interest and the Rule of Law.”
Just in case they were unaware of this, the President pointed out to Nigeria’s legal luminaries that the national interest has supremacy over the rule of law.
These were his words: “The 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 in this regard and it is now a matter of judicial recognition that, where national security and public interest are threatened or there is 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 learned men and women of the Nigerian Bar Association are not unruly university students, therefore, they listened politely and respectfully, as they should to the president of the country. But you just knew this could not possibly go down well with them.
Immediately after the speech, all hell broke loose. Lawyers all over Nigeria cried foul. Where, they asked one and all, did Mr. President get this settled “matter of judicial recognition” from? Even the president’s host, the Nigerian Bar Association, quickly put out a statement saying emphatically that the President’s statement went over the bar.
It said: “The NBA completely rejects the presidential statement subordinating the Rule of Law to National Security. The NBA restates that the Rule of Law is central to a democracy and any National Security concerns by the government must be managed within the perimeters and parameters of the Rule of Law. As a corollary, (the NBA) frowns at the present growing trend whereby government decides on which court orders to obey. The court has exclusive duty under a democratic dispensation to interpret the Constitution and other laws, and government and the citizenry must comply with court orders at all times until set aside”.
No one, not even Mr. President, should be surprised at this reaction. Surely the President must have known that Nigerian lawyers would not take kindly to being lectured about the law by a president with a military, as opposed to a legal, pedigree. Military generals can also be expected to be offended if they were to be lectured on the art of war by a lawyer. Which raises the question of why President Buhari decided to stir up this hornet’s nest?
Rule of lawyers
In any case, it is necessary for even those of us who are not lawyers, who know next to nothing about legal matters, to take up President Buhari’s gauntlet.
Mr. President seems to have overlooked one simple fact. The rule of law is precisely what it says: it is the rule of lawyers and judges. It is not the rule of presidents, governors and politicians. The rule of law keeps presidents in check in democratic settings because presidents cannot be relied on to check themselves. Therefore, presidents don’t preside over the rule of law: lawyers do.
Neither is the national interest determined by politicians. If the national interest is to be supreme, it must be subject to the rule of law. That means politicians and government officials must appeal to the courts on a case-by-case basis for the applicability of the supremacy of the national interest.
In every situation, the national interest is not defined by the government; it is defined by the courts. Otherwise, the national interest would easily become the government’s interest. But the government interest cannot be the national interest, otherwise all opposition to the government would be deemed contrary to the national interest.
Democratic systems guarantee the rights of the opposition. As a matter of fact, the opposition is required to oppose the government in the interest of national security.
As it is, Nigeria’s national interest is different from the interests of the APC or the PDP. Nigeria’s national interest is not subject to parochial self-interested considerations. It is a moot point whether it is in the interest of Nigeria for APC or PDP to win the next election. The victory of neither and the defeat of either should not, in any way, affect the interests of the nation.
Separation of powers
The suspicion here is that when the President is talking about the national interest, he is actually referring to the government interest. That is why his speech engendered so much outrage. If he were trying to defend the national interest of Nigeria, there would be scant opposition from Nigerians. We would all be glad that he is determined to protect us.
But in a situation where the government is asserting indirectly the exclusive prerogative to be judge and jury, Nigerians have every cause to be alarmed. The President of Nigeria cannot be given the discretion to determine the national interest. That is the framework for dictatorships. The determination of the national interest must be under the purview of an independent judiciary.
That is why Nigeria’s democratic system is based on the principle of the separation of powers. According to that principle, the executive cannot arrogate to itself the powers of the judiciary. The president must allow the courts to determine, on a case-by-case basis, if and when the national interest is at stake.
That means it is the rule of law that determines the national interest and not vice-versa. Even the president of the country must be subject to the rule of law. Under the rule of law, even the president can be adjudged by the courts to be operating contrary to Nigeria’s national security interests.
Few Nigerians would buy the argument that it is right for them to be incarcerated for years without trial on grounds of the need to protect the national interest. That is why we have the rule of law. The rule of law protects Nigerians from government dictatorship.
The rule of law according to the Constitution says it is in the interest of Nigeria for Nigerians to have freedom of association and freedom of speech. It says an accused Nigerian should not be declared guilty of any offence without the benefit of a fair trial by an independent judiciary. No arbitrary definition of the national interest by the executive should abrogate such inalienable rights of Nigerians, without first being subject to independent judicial oversight.
President Buhari himself was a victim of this kind of executive over-reach. He was incarcerated for two years without trial. He was released without apology or compensation. That was not right. Nigerians opted for a different approach by embracing the democratic option. We are in agreement that all of us, every Nigerian, should be subject to, and protected by, the rule of law.
Every accused person must have his day in court. No Nigerian should be incarcerated indefinitely under any accusation or pretext whatsoever. In a matter of days, not even of weeks, the accused should be brought before a court of law. It would then be the prerogative of the court to determine whether he should remain in custody in the national interest or be granted bail pending his trial again by the court.
It is alarming that these fundamental principles of our democracy have been systematically violated under President Buhari’s government. In many cases, court verdicts are flouted with impunity. Innocent people are arrested without trial. Accused people are declared guilty prejudicially by different members of the government in the media, without or before the due process of a trial.
It now appears the President is trying to institutionalise these anomalies by asserting the primacy of a so-called national security over the rule of law, solely subject to the government’s discretionary definition. This is clearly not acceptable to the overwhelming majority of Nigerians; and surely, Nigeria’s national security concerns cannot run contrary to the wishes and aspirations of Nigerians.
This brings to mind the most alarming case of James Abiri, a Nigerian journalist who was detained for two years without trial. He has only recently been released, still without trial, and is rightly suing the government for wrongful and unlawful detention.
James Abiri, publisher of a Bayelsa State newspaper, Weekly Source, was arrested by government operatives of Nigeria’s State Security Services, SSS, in July 2016 and was only released in July 2018. In that period, no formal criminal charges were filed against him. He was not brought before any court of law. He was not allowed access to his lawyer or to members of his family. According to him, he was even subject to torture.
This is highly disturbing and does not bode well for Nigerian democracy. No government agency should have the right to do this to a Nigerian in Nigeria in the name of Nigerians. The SSS says Abiri was arrested in the interest of national security. But the obvious contradiction here is that the same SSS has now found it necessary to release him without filing any criminal charges whatsoever against him.
This is why government officials should not be given this kind of discretionary powers. It is easily subject to flagrant abuse.
Suing the SSS to court, Abiri’s lawyer says: “It is not the responsibility of the state to determine what is the rule of law and national security. It is the duty and responsibility of the court to say, yes, this case is a capital offence or whether an applicant is entitled to bail or not. It is not the responsibility of the state security service to sit in their office, (and) arrest, detain and punish a person.”
Every right-thinking Nigerian should agree with him.