Rule of the lawless.
By Owei Lakemfa.
Journalists in the country under the banner of the Nigeria Union of Journalists (NUJ) poured into the streets of our country on Thursday, August 30, to protest against the unceasing attacks, incarceration and intimidation of journalists by security agencies.
The journalists had lived under the infamous State Security (Detention of Persons) Decree 2 of 1984. Under that decree, for fifteen years, journalists and other patriots who questioned military misrule and the privatization of national wealth by the generals and their collaborators, were detained without trial.
With the return of civil rule in 1999, journalists had assumed those dark days were over, only to be awaken to the rude shock that one of them, Jones Abiri who was abducted by the security services on July 20, 2016 and had been in detention without trial for two full years! More shock was to come, when it became public knowledge that there were other journalists and Nigerians similarly detained!
Before the Abiri case, Nigerians had been grappling with the tendency of the Buhari administration not to obey court orders. This had been quite pronounced in the cases of Muslim cleric, EL Zak- Zaki and former National Security Adviser, Col. Sambo Dasuki (Retired) who between them shared numerous court orders granting them bail with the government refusing to obey the courts. In the case of Dasuki, he has been in detention since 2015 and is still being held despite at least half a dozen subsisting court orders including by the West African Regional Court that ordered his release on bail, pending the determination of corruption charges against him.
Justice Minister and Attorney General, Abubakar Malami had boasted that no amount of court rulings can free Dasuki whose fundamental rights he said deserve to be violated. In a July 2018 interview on the Voice of America, Malami said the court orders cannot be obeyed because: “there is a general consensus world over that where the dispute is only between individuals, then you can consider the issue based on the instant situation. But if the dispute is about an issue that affects an entire nation, then you have to remember that government is about the people not for only an individual. So you have to look at it from this perspective. If the issue about an individual coincides with that which affects the people of a nation and you are now saying the government did not obey a court order that infringes on a single person’s rights.”
Malami assumes wrongly, that in granting bail, the judges did not weigh the implications having heard both the prosecutor and the defendant. He also falsely assumes that only those wielding executive power understand and appreciate public interest.
Some of us had assumed that as a Senior Advocate of Nigeria (SAN) Malami would have realized and accordingly, advised the government that the appropriate place it should take its disenchantment with the court rulings, is the appellate court. But when the Minister of Justice decides to sit on appeal and set aside legitimate court orders, it beholds on the citizenry, beginning with the Nigeria Bar Association (NBA) to call him to order, and if he fails to heed the call, to put his name in the Roll Of Dishonor. I had also expected the NBA to make a strong case against disobedience of court orders by the Buhari administration, and if necessary, to close down the courts. When the NBA, led by the noted Pan Africanist, Alao Aka-Bashorun, closed the courts nationwide under the Babangida military regime, it was based on a single disobedience of a court order in the then Gongola State. The NBA made the point that even under a military dictatorship, court orders must be obeyed.
These were my thoughts when last week, President Muhammadu Buhari addressed the Opening Session of the 58th NBA Annual General Conference 2018 in Abuja. With thousands of lawyers and the Chief Justice of Nigeria, Justice Walter Onnoghen in attendance and the world watching, he declared that 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 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.”
This is a fundamentally flawed position and trying to justify a military culture of impunity with a misinterpretation (deliberate or otherwise) of a Supreme Court judgement, cannot get this administration far. The Supreme Court ruling that the right of the individual citizen should be subjected to the collective right of the citizenry, does mean the constitutional and fundamental human rights of the Nigerian have been abrogated. If anything, it is these rights, the separation of powers and the constitutional provision that all power must flow from the people (not the gun) that distinguishes military rule from democracy, just as broad daylight can be contrasted with the dark nights.
In any case, while the judicial system is a straight forward one, the so called ‘national interest’ is a nebulous, undefined and undefinable concept that can only be appropriated by the powerful. It is what Nobel Laureate, Wole Soyinka described as: “ a vague, vaporous, but commodious concept”
If we were even to loosely agree on the ingredients that may constitute ‘national interest’ it would still be necessary to define who or what authority approximates it, who appropriates it, in whose interest and for what purpose? If we do these, we will come to the inevitable conclusion that such a rogue concept, is antithetical to democracy, and inconsistent with the constitution.
The Presidency, legislature and the judiciary are creations of the law; if the law can be disregarded, if the constitution can be so assaulted, then the country is in peril. When the executive encases the rule of law in the amour of ‘National Interest’ the cause of law is compromised; the ends of justice are defeated, what we are left with, is the rule of the lawless. Any country that nails the rule of law on the stump of ‘national security’ is making a choice between order and disorder, law and lawlessness, peace and chaos. No institution including the Presidency should become so powerful as to operate outside the law; in that instance, it becomes an outlaw.
I do not think those who challenged military dictatorship, and lovers of democracy, should fold their arms and allow the return of the dark, ugly days when people simply disappeared into the gulag in the name of ‘national security’ ‘national interest’ or ‘public interest’.