By Davidson Iriekpen
Senior lawyers have this week disagreed with President Muhammadu Buhari’s comment that the rule of law must be subject to the supremacy of the national security and interest, adding that the executive arm of government cannot sit in judgment over courts’ decisions.
The lawyers including the former President of the Nigerian Bar Association (NBA), Mr. Olisa Agbakoba (SAN), its President-elect, Mr. Paul Usoro (SAN), Mr. Sebastine Hon (SAN), Mr. Ahmed Raji (SAN) and Chief Mike Ozekhome (SAN) said the comment was misplaced.
Buhari had while addressing the opening ceremony of the 2018 Annual General Conference of the NBA in Abuja on Sunday said the security of the country could not be sacrificed on the altar of the rule of law, where national interest was threatened.
According to the president, 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 the society.”
But the learned silks stated that under the 1999 Constitution as amended, the executive could not sit in judgment over court’s decisions while hiding under national security and interest.
They warned that anything less than this would amount to taking “a leap into the bottomless and eternally regrettable abyss of dictatorship”.
Agbakoba said there was no way the rule of law would be subject to national security.
He described Buhari’s assertion as an “extremely dangerous statement to have been made”.
The former NBA president said Buhari quoted the judgment of the Supreme Court out of context, adding that the president misconstrued national security for the laws limiting civil liberties.
“It was an extremely dangerous statement to have been made. His remarks contradicted the judgment of the Supreme Court. He quoted the judgment out of context and misconstrued it for the limiting civil liberties,” Agbakoba said.
The President-elect of the NBA, Usoro (SAN), also disagreed with the position of the president.
Usoro stated that what the president was referring to was fundamental human rights not the rule of law, contending that the rule of law was the ultimate and far supreme and superior to national security.
He said: “I am sure that what the president was talking about was fundamental human rights and not rule of law.
“Rule of law is supreme, that is what the constitution stands for. It is superior.
“When fundamental human rights clashes with national security, latter takes pre-eminence. The same cannot be said of the rule of law. When the rule of law clashes with national security, it must bow to rule of law.”
On the president’s reference to the decision of the Supreme Court where he said it upheld national security over the rule of law, again, Usoro faulted the president, saying he was perhaps referring to fundamental human rights and not the rule of law.
The NBA president-elect further argued that even in cases of fundamental human rights, it was not absolute to subject them to national security, saying that it depends on the facts and evidence before the court.
He added that the decisions of courts on issues before them are different, depending on the facts and evidence presented.
Mr. Ahmed Raji (SAN), who is counsel to Sambo Dasuki, a former National Security Adviser (NSA) to former President Goodluck Jonathan also disagreed with Buhari.
Suffice to state that the Buhari-led administration has repeatedly refused to honour judgments granting bail to Dasuki pending his trial for various offence before both the Federal High Court and the Abuja High Court.
In his response, Raji said “First, I am too small to join words with the President whom I greatly respect both in his personal and official capacities. He means well.
“I am, however, unaware of any decision of any court in the land, which says rule of law must be subject to the nation’s security and national interests.
“The questions that will follow will include, who determines security and national interest? If it is the courts then once an order is made and it is not appealed, then it must be complied with.
“There cannot and indeed there is no concept known as executive review of judicial decision.
“Rule of law is an all-encompassing concept, which is the bedrock of law and order in a society. Both security and national interests are under and are as defined by rule of law.
“As rightly said in the famous case of Liversidge vs Anderson, in war and in peace the language of the law remains the same. Certainty of the law is in the interest of all.”
He asked the Almighty Allah to continue to guide and direct “our leaders most especially our cherished president and his highly appreciated/respected deputy in this difficult time”.
The author of many books on the Nigerian constitution, Chief Sebastine Hon (SAN), also disagreed with the president.
He said: “The president’s assertion, extracted from Asari Dokubo vs. Federal Republic of Nigeria, is not entirely correct.
“The Supreme Court refused bail in that case because it saw the Niger Delta uprising as threat to national security.”
He stated that except for the Boko Haram insurgency and the Fulani herdsmen attacks, Nigeria was not facing any security challenge of that scale.
“So, that statement should, under the circumstances, apply to these and not to innocent Nigerians,” he said.
Continuing, Hon added: “But even then, the due process of the law, as was in the Asari Dokubo matter, where it was the judiciary that took charge, must be followed.”
According to him, Section 45 of the Constitution, which has abridged human rights, is limited to the rights guaranteed in sections 37 (right to privacy); 38 (right to freedom of religion); 39 (right to freedom of the press); 40 (right to freedom of association); and 41 (right to freedom of movement).
He said: “No other fundamental right has been so abridged; and even for those ones curtailed, due process of the law must be followed.
“In other words, even those rights cannot be tampered with, except as, and to the extent, permitted by law and due process. Due process here includes interrogating executive and even legislative actions in courts of law, to weigh whether or not such actions are in conformity with set down rules and the constitution itself.
“Can you see how our democracy works? So, those who say ‘the judiciary is the last hope of the common man’ are not far from the truth.”
Human rights lawyer, Mr. Ebun-Olu Adegboruwa, stated that national security cannot override the rule of law, arguing that it would be a great setback for democracy and national development.
Adegboruwa posited that while the rule of law can be defined, is basic, predictable and even subject to review or helps to predict and govern human conduct, national security has no definition and limit, and panders to individual discretion.
He stated that for the president to postulate that national security should override rule of law consideration might unwittingly portray him as harbouring dictatorial intentions.
He said: “National security has no definition, it has no limit; it is amorphous and panders to individual discretion. It is the rule of the executive arm of government alone, being the one responsible for policy implementation and the determination of security imperatives.
“National security is the rule and decision of individuals, such as the Inspector-General of Police or the Commander-in-Chief. Such rules are always subject to manifest abuses, especially in respect of opposition politics. That has been the experience in Nigeria.
“On the other hand, the rule of law is defined, basic, predictable and even subject to review; it helps to predict and govern human conduct. The rule of law limits and interpose upon the rule of self all forms of arbitrariness and is thus preferable to the whims and caprices of individuals.
“It is a dangerous proposition as we approach 2019. Taken to its proper interpretation, it may be taken to be an advance notice to the people of Nigeria, to brace up for likely threats to their rights and liberties, in the coming days.”
Also speaking, Chief Ozekhome (SAN), insisted that any attempt to subject rule of law to national interest or security is an invitation to anarchy.
“Once you subvert the rule of law, then the rule of thumb takes place,” he said.
He said the president’s position was wrong as it was aimed at justifying his administration’s blatant refusal to obey orders of court particularly on Dasuki and El-Zakzaky.
While he noted that Dasuki was being tried in relation to alleged diversion of government funds to the tune of N2.1 billion, Ozekhome however, submitted that one of the height of corruption was the disregard and disobedience of the rule of law and the constitution by those who swore on oath to uphold it.
“It is the height of corruption for the president who has taken the oath of office to wilfully violate his oath of office and the provision of the constitution when the constitution provides that any law that is at variance with the constitution shall be null and void,” he said.
The Peoples Democratic Party (PDP) also joined the fray Monday, saying the president’s position was strange to the nation’s laws, and was completely unacceptable.
The party said the assertion is a direct trademark of a “despotic ruler” and as such could not find expression or accommodation in a democratic setting of the contemporary nation like Nigeria.
The PDP expressed readiness to rally Nigerians to reject every attempt by Buhari and the All Progressives Congress (APC) to introduce the long forgotten trappings of military dictatorship into the democratic rule, which Nigerians laboured for many years to attain.
The party further stated that it would not stop at anything legitimate to ensure that the International Criminal Court (ICC) holds the president responsible for violations of rule of law and criminal abuse of human rights committed under his rule in the last three years.
The party added: “It is instructive to note that contrary to claims by Mr. President, there is no pronouncement by the Supreme Court that subjugates constitutional rule of law and rights of citizens to the whims, caprices and dictatorial impulses of any president.
‘’Our national interest is thoroughly embedded, protected, expressed and enforced only under the rule of law as provided by our constitution and there is no how Nigerians can allow an individual to superimpose or override the constitution with his personal whims and impulses; a pattern that is characteristic of known dictators all over the world, as expressed in the obnoxious Executive Order 6, designed to justify a complete clampdown of political opponents ahead of 2019 general election.”