President Muhammadu Buhari has come under intense criticism for saying the rule of law can be jettisoned on the altar of national security.
Mr Buhari, who spoke at the conference of the Nigerian Bar Association (NBA), Sunday, said the “rule of law must be subject to the supremacy of the nation’s security and national interest.”
Citing a Supreme Court ruling, he said where national security and public interest are threatened or likely to be threatened; the rights of those responsible take second place in favour of national security.
“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,” Mr. Buhari had said.
But prominent Nigerians who spoke on the matter condemned the president for hiding under the guise of national security to subvert the rule of law.
A Senior Advocate of Nigeria (SAN) Sebastian Hon, faulted the president, arguing that the reference to the apex court ruling was not correct.
Mr. Hon said the president extracted the assertion from the case between Asari Dokubo and the Federal Republic of Nigeria.
“The Supreme Court refused bail in that case because it saw the Niger Delta uprising as a threat to national security,” he began.
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“The Supreme Court refused bail in that because it reasoned that the Niger Delta uprising was a threat to national security. Except for the Boko Haram insurgency and the Fulani herdsmen attacks, Nigeria is not facing any security challenge of that scale.
“So, that statement should, under the circumstances, apply to these and not to innocent Nigerians; but even then, the due process of the law – as in the Asari Dokubo matter where it was the Judiciary that took charge – must be followed.
“In addition, 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).
“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,” he said.
However, he added that due process 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.
“Those who say ‘the judiciary is the last hope of the common man’ are not far from the truth. Anything less will amount to taking a leap into the bottomless and eternally regrettable abyss of dictatorship,” said Mr. Hon.
On his part, an activist and Abuja-based legal practitioner, Kayode Ajulo, raised concerns about the true intentions of the Buhari administration.
Mr. Ajulo reminded President Buhari that the ultimate national interest is organised in the constitution, where the fundamental human rights are given primacy of place and hinged on the rule of law.
He said it is dangerous for Mr. Buhari to prefer the exercise of political power against the rule of law, adding that the statement showed a strong dictatorial tendency.
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“It signals strong dictatorial tendencies and potential trampling on the rights given and protected under our constitution,” Mr. Ajulo said.
“With this assertion coming from a democratically elected government, there is the founded fear that the president may not be standing on the right footing.
“It supposes too that the president could be taking the wrong advice by ‘political lawyers’ who only perch on his whims and experience as a security man and warlord.
“There is no previous decision of the apex court to that effect – the decision being referred to by the president’s ‘yesmen’ was a side comment in the Mahjid Asari Dokubo’s case.
“It is rather unfortunate that no one in the president’s kitchen cabinet could be patriotic enough to guide him properly. It is even more unfortunate that the leadership of the bar cannot stand up to him for protocol constraints.
“The more dangerous implication on the commentary is that the president, by the statement, is equating Nigeria, the Federal Republic to a banana republic,” he said.
He cautioned Mr. Buhari not to forget that power is transient and that those urging him to operate outside the rule of law will abandon him when he commits grievous constitutional breaches.
The President, Civil Liberties Organisation, Uche Durueke, also lambasted Mr. Buhari for subjecting the rule of law to the dictate of national security.
He said the president was exhibiting dictatorial tendencies and urged Nigerians to reject any attempt to take the country back to the military era where the rights of the people were violated indiscriminately.
The CLO boss said, “ It shows what the president believes in and pursues. It is a warning to Nigerians that the talk that this government is not the rule of law-sensitive does not matter to the president. That is the message he is sending to Nigerians.
“Let us get this right, the rule of law is the pillar of every democracy. It is the process of the rule of law that separates democracy from dictatorship. In a situation where he said he is going to subvert the rule of law in the tiny veil of national security is akin to saying he is going to suspend the constitution and rule the country outside the law.
“Respec to the rule of law is respect to the constitution. The constitution is the supreme law of the land. The whole concept of the rule of law is anchored on the constitution.
“If he says the rule of law will be subject to national security, he is simply saying that the constitution is subject to national security. What is national security if we may ask and who determines it? National security cannot be what the president says it is. If that is allowed, it simply means we are in a dictatorship.
“The whole argument of national security is something Mr. President and his people need to rethink and change their steps. Is it national security for the price of petrol to be increased against the wishes of Nigerians?
“If the people had come out to protest against that, the government will unleash its security apparatus on them for subverting the touted national security.
“We heard so much about this national security under the military and it is not what we expect Mr. President to talk about.
“If he had said the issue of the rule of law must be balanced with national security, we would not have bothered much,” he concluded.
