Rule of Law V. National Security: What the Law Really Says? -By Festus Ogun

“The rule of Law must be subject to the supremacy of the nation’s security and national interest”

The above statement was made by President Mohammadu Buhari while flagging off the, recently concluded, 2018 Annual General Conference of the Nigerian Bar Association in Abuja on August 26, 2018. To justify his position, he stated further that “our apex court has had cause to adopt a position on this issue in this regard and it is now a matter of judicial recognition that; where national security and public interest are threatened or there is a likelihood of their being threatened, the individual rights of those allegedly responsible must take second place, in favour of the greater good of society.”

Since the President made the statement, there have been mixed reactions and endless controversies. In truth, many of the commentaries are flavoured with political sentiments as the members of the opposition subjected the president to public attack by way of criticisms, whereas the pro-APC folks have thrown weight behind the President; both sides justifying their positions with the aid of legal authorities. Since sentiment is very dangerous in a legal commentary like this, the attempt to clarify the issues arising therefrom, without necessarily being partial or sentimental, remains sacrosanct. For the apt positions of law need be stated for the sake of posterity.

President Buhari, is both right and wrong.

His general stance on rule of law is very wrong. Rule of law is the political and constitutional principle that stipulates the supremacy of the law over the ruler, the ruled and all decisions taken in the country. In a constitutional democracy like we ‘practice’ in Nigeria, the place of rule of law is indispensable. In the absence of rule of law, what obtains is lawlessness, arbitrariness, abuse of power and near-dictatorship. The place of rule of law is so potent that it is the bedrock upon which any democratic state is built. It is the very foundation; and once the foundation is taken away, one expects unimaginable disaster.

In the popular case of Military Governor of Lagos State v. Ojukwu (2001) FWLR (Part 50) 1779, the Supreme Court held that “The Nigerian Constitution is founded on the rule of law, the primary meaning of which must be done according to the law. It also means that government should be conducted within the framework of recognised rules and principles which restricts discretionary powers”.

By the general notion of A.V. Dicey’s rule of law, no defence can be tenable for the breach of the principle unless excused by law. The President is thus not right to posit that rule of law must be subject to national interest and security. Nigeria is a creation of law. Without the instrumentality of law, there can never be Nigeria. It therefore follows that without the nation created by law, there can never be national interest talkless of its security.

On Buhari’s second stance that where “national security and public interest are threatened or there is a likelihood of their being threatened, the individual rights of those allegedly responsible must take second place, in favour of the greater good of society”, he is very correct. The President’s position here tallies with the firm decision of the Supreme Court in the controversial case of Dokubo-Asari v. Federal Republic of Nigeria (2007) 12 NWLR (pt. 1048).

It was held in that case 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 takes second place”. It went further to explain that “the corporate existence of Nigeria as a 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 it survives in pieces rather than in peace, the individual liberty or right may not even exist”.

Respectfully, the position of the court in the above case is not a verdict to subject rule of law on the alter of national security. In fact, in that case, the court was not referring to rule of law. Neither was it creating the impression that where there is a clash between rule of law and national interest or security, the latter should prevail. No.

What the court ruled in that case was an instance of human right or individual rights. Let it be quickly stated that the concept of human rights, referred to in that case, is not the same as the potent concept of rule of law. In rule of law, we have fundamental rights but rule of law is not entirely about fundamental rights. The two concept although related and intertwined are not the same and should not be treated as such.

Learned Femi Falana, SAN observed in a paper titled “Rule of Law and Security” delivered at the concluded 2018 NBA Conference that human rights, rule of law and democracy are intertwined and mutually reinforcing. Still, that should not create the impression or mean that they are the same.

Interpreting human rights to mean the same as rule of law is the very point the president erred. And this erroneous position needs to be corrected not just for posterity but for the general interest of our democracy.

The President mixed it up by linking an entirely different court decision to defend the breach of rule of law currently ongoing in the country. Distinguishing cases is a paramount tool that must guide all law enthusiasts who wish to rely on judicial precedents to back up their positions.

Even in rare cases where fundamental rights would be subject to national security, the court held in the Dokubo-Asari’s case that the meaning of and what constitute “national security” can and should only be determined by the court. In view of this, the cardinal principle of rule of law is still in place as it still governs properly the instances where fundamental rights take second place. So, even if President Mohammadu Buhari takes that as a justification for abuse of human rights, albeit wrongly, it is not under his jurisdiction to determine or dictate what is national security; but the court.

Importantly, I have done a critical perusal of the Dokubo-Asari’s case and I’m yet to see where the court rule that fundamental rights shall take second place where it clashes with national interest. National interest was not mentioned in that case. As national interest is not the same as national security although breaching fundamental rights in place of national security may be for national interest.

The implication of all said is that even when the court ruled that human rights can take second place when it clash with national security (subject to lawful conditions), it does not necessarily connote that rule of law must be subject to national security and interest (as erroneously averred by the President) since human rights is only a component and not rule of law itself.

This point needs to be made clear at this point of our history when the Federal Government is globally known for disregard for rule of law and breach of fundamental rights. Even if there are instances where human rights takes second place for national security, it must be done according to the law, as explained above. This, the president has either disregarded or quite ignorant of. Unfortunately, the latter is not an excuse in our jurisprudence.

Let it be made known that rule of law is the only remaining pillar, at present, that can save our dear nation from collapse. The principle must be well respected by both the government and the people. President Buhari must quickly realise that we are longer in the locust days of the junta. Courts decision must be well respected and must not be disregarded on self-opinionated wrong notion of national security and interest. For utter disregard of court’s decisions is what the present administration is mainly known for when talking of breach of rule of law. And obedience to court orders is so necessary that “it is the only way law, order and peace can be maintained”.

Let me conclude by the view of the Supreme Court as regards rule of law and respect to courts’ decision in the recent case of Oguebego v. PDP (2016) 4 NWLR (pt 1503) 446: “any person against whom a decision of court is given is duty bound to obey it, irrespective of whether the person against whom the order is made is of the opinion that the order is void or perverse. He is bound to obey the order until it is set aside”.

God bless Nigeria.

Festus Ogun is a law student of Olabisi Onabanjo University and human rights activist. Contact him via festusogunlaw@gmail.com or 09066324982.