President Muhammadu Buhari raised the bar of debate on the nexus between the rule of law and national interest in the context of national security the other day at the annual Nigeria Bar Association in Abuja but the heated debate arising has been illuminating to the extent that the Nigeria’s leader, a retired General may have been persuaded, after all, that national interest and national security too are a creation of the law, which is therefore supreme.
At the opening of the 2018 Annual General Conference of the Nigeria Bar Association (NBA) in Abuja, President Muhammadu Buhari was reported as stating that the “rule of law must be subject to the supremacy of the nation’s security and national interest.”
He went further: “…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.”
Unsurprisingly, the President’s assertion that the rule of law can be subordinated to national interest and national security has ignited a firestorm of disagreement and more importantly apprehension, given the background and antecedents of the president who has been accused of disobeying several court orders.
At the most basic level, the rule of law is the concept that both the government and the citizens know the law and obey it. The rule of law is so much greater than this basic concept and a better understanding of how it is woven into the very fabric of all aspects of how our society is organised and governed will allow us to properly situate the grave assertion made by the President in when Ministers in the Temple of Justice were at a conference in the nation’s capital.
The principles that underpin the rule of law are universal and signpost how the level of adherence to these principles dictate how well a country is governed right down to the individual family unit.
At the apex of the hierarchy of these principles is equality before the law – all persons, organisations and government at all levels are subject to and accountable to the law without exception. The second principle is that there shall be checks and balances on the use of power by individuals and government and this is implicit in our chosen system of government with three co-equal branches of government. Deriving from this is the third principle of the independence of the judiciary and the right to a fair trial with a presumption of innocence which prevents the arbitrary arrest, detention or deprivation of life or property.
Further principles include, freedom of speech and media, freedom of association and assembly, access to justice and democracy through formal legal processes.
It is clear that the rule of law is the foundation of our society and must be protected, preserved and nurtured. Make no mistake that it stands in opposition and as the final bulwark from our inherent proclivities as sentient beings, which is to introduce bias, sentiment and arbitrariness where the rule of man prevails.
Indeed, the premise of the President’s call is founded on a false equivalence that there will ever be a circumstance where the rule of law stands in conflict with our national interest – a nebulous concept that he appeared to be reserving the definition of, to the executive arm of our government. We could not disagree more strongly.
Adherence to the rule of law should be our national interest. It provides us with the framework to deal with every probable scenario and a guide to formulate appropriate responses to unanticipated and new challenges. We submit that it is our deviation from the rule of law as a nation that has created and incubated the serial problems of corruption, insecurity, injustice and impunity that have manifested and crystallised as we all watch, often helplessly.
The rule of law is a constraint to disorder and arbitrariness and like constraints of all kinds, there will always be a temptation to set it aside in order to ‘make progress.’ It is necessary to remind those who are tempted under the guise of ‘national security, anti-corruption stance or personal liberty vs national interest’ that removal of these restraints will affect us all and in due course the proponents. Mr. President, the weakening of the rule of law will also adversely affect you, in and out of office.
It is particularly baffling that the President chose the forum of the Bar Association to advance this proposal and we would have hoped that an appropriate response would have been made directly to the President at that forum. Of greater concern is that the Attorney General of the Federation (AGF) and the retinue of the President’s legal advisers would endorse this creeping authoritarian premise. Indeed, we do not have to look too far to see an example of an Attorney General that is serving the nation and not the President as is the case currently in the United States with Jeff Sessions’ recusal from the Special Counsel investigation into the actions of then candidate Trump’s possible collusion with Russia.
Closer to home, it is the refusal of the executive branch to adhere to court pronouncements in the Dasuki and Zakzaky cases that have resulted in this attempt to justify that where a decision is not to the Government’s liking, they can choose to ignore on the grounds of national interest.
Nigerians have responded robustly and contextual condemnation has been swift and broad. We recognise the danger signals and urge all Nigerians to reject this pre-trial balloon. The Buhari administration must rethink this premise as it is in no one’s interest, which is the definition of national interest.
Therefore, it should not be unambiguous that wherever the law does not rule, it is the rule of man, yes man who can redefine personal interest, reconstruct and sell it to the gullible as national interest. That is what happens when man rules, in the absence of the law. In the domain of the rule of man, the same powerful man can be so drunk with power that he can accuse a helpless and critical citizen of undermining national security. And so only the law can rule that same man to order. That is why there should be no controversy over the supremacy of the law over any other interests in society. And so that is why the legal opinion of the iconic Lord Justice Alfred Thompson Denning (1899-1999) on the point at issue – rule of law is quite significant, in this regard. The jurist of significance had counseled those who are confused about the supremacy of the rule of law: ‘Be ye ever so high, the law is above you’. And so, let national security, national interest and other public interest constructs be as defined by the rule of the law, not by the rule of any man.