No, Mr. President, the rule of law is supreme

Last week, President Muhammadu Buhari started a debate during his opening speech at the Nigerian Bar Association 2018 conference. He stated that national security and interest take precedence over the rule of law and that this has been given judicial recognition. This proposition seems to throw light on the mindset of the President as well as an attempt to justify previous inexplicable actions of his administration. Again, it seems to be the pathway to how the President seeks to run the country in the remainder of his tenure and if he eventually succeeds in getting a second term.

It is preliminary in this discourse to attempt the deconstruction of the rule of law and its implications in a constitutional democracy. In its classical formulation by A.V. Dicey, the rule of law is about a government, a people and institutions governed by law devoid of whimsical arbitrariness. It is about no one being above the law, equality before the law, equal protection of the law, supremacy of the constitution and due process of law. A former Secretary-General of the United Nations articulates it thus: “A principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency”.

The President is not a lawyer, political scientist, sociologist, etc. and cannot lay claim to any jurisprudential or philosophical orientation as to seek to postulate a new theory of societal governance. Evidently, this speech must have been crafted by one of his numerous aides and it is expected that these aides have a legal background considering that this was a speech presented to a distinguished gathering of lawyers who are ministers in the great temple of justice. Whether the President wrote the speech himself or an aide did, the starting point is to tell him that there can be nothing more fallacious and disingenuous than his proposal. The law is the foundation of society, everything proceeds from it and all branches of human endeavour are guided by laws. The fact that the constitution is supreme and any law or policy inconsistent with it is void to the extent of its inconsistency venerates the supremacy of the grundnorm which is the highest law in the land. The constitution did not state that national security and national interest are the pillars or the fundamental norms of governance.

Within the foregoing context, it is also the law that articulates and defines national security and national interest. The two are considerations that can inter alia inform and be taken cognisance of while interpreting the laws of the land. The constitution of the Federal Republic of Nigeria 1999 states in Section 45 as follows: “(1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable 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 or other persons (2), An act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of Section 33 or 35 of this Constitution; but no such measures shall be taken in pursuance of any such act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency: Provided that nothing in this section shall authorise any derogation from the provisions of Section 33 of this Constitution, except in respect of death resulting from acts of war or authorise any derogation from the provisions of section 36(8) of this Constitution”.

The above section provides for laws that derogate from certain fundamental rights for purposes including defence, public safety, public order, public morality or public health or for protecting the rights and freedoms of others. Thus, the constitution does not provide for an arbitrary or whimsical exercise of executive power in derogation of rights. Such action can only be justified under a law, with the law making process of First, Second, Third Reading and a public hearing in between before the product is harmonised between the Senate and House of Representatives and comes to the President for his assent. This provides a good opportunity for public inputs and debate before the law is passed. Furthermore, those measures must be reasonably justifiable for the purpose of dealing with the situation that it seeks to protect. The foregoing does not take away the right of individuals whose rights are affected by such a law from challenging the derogation law in the courts.

Thus, the final word on whether the exercise of the power to derogate is justifiable lies with the judiciary. If the President is attempting to justify previous inexplicable actions of his administration, especially in disobeying orders of court vindicating the fundamental rights of citizens, then his alibi failed before it started. National security and interest must be pleaded in court as the reason for the denial of rights and the court will take a considered position on the arguments. So, in the cases of the former National Security Adviser, Sambo Dasuki, and leader of the Shiite sect, Ibrahim El Zakzaky, where the court had ordered their release after listening to the submission of lawyers on both side, representing the executive (the state) and the accused, it is contrary to reason and common sense; utterly absurd and ridiculous for the President to seek to justify his contempt of court based on a warped understanding of clear constitutional provisions. The Supreme Court in the case referred to by President Buhari-Dokubo-Asari V. FRN(2007) 5-6 SC at page 150, upheld the pronouncement of both the Federal High Court and the Court of Appeal in refusing the Appellant bail on the basis that the appellant failed to meet the minimum demands for the grant of bail. In the Dokubo case, the Supreme Court considered the arguments of both sides and made a ruling on the merits and facts of the case. At no time did the Supreme Court encourage the executive to disobey court orders under the guise of national security.

If this is the pathway to how the President seeks to continue run the country in the remainder of his tenure, then all Nigerians have a fundamental obligation to reject tyranny, arbitrariness and desecration of the constitution by telling the President in clear terms that we cannot tolerate such backward and medieval behaviour. And if the President seeks the vote for a second term, of an enlightened people and affirms apriori that should he succeed in getting the vote, he will disobey court orders, then, we are not bound to vote ourselves into slavery. We are bound to reject the slave master.