Ordinarily, President Muhammadu Buhari’s submission at the opening of the 2018 Annual General Conference of the Nigeria Bar Association (NBA) on the relationship between the rule of law and national interest as well as security should not generate needless controversy. No society, democratic or otherwise, allows personal liberty to supersede considerations of national interest and security. As the President rightly, even if controversially, said: “However, let me remind you all, my dear compatriots that the law can only be optimally practiced in a Nigeria that is safe, secure and prosperous”.
Although he did not give specific details, the president said “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 responsible must take second place, in favour of the greater good of society”.
Yes, law can only be practiced within the context of a safe, secure and prosperous country. But can sustainable safety, security and prosperity be achieved without the guarantee of the supremacy of the rule of law as a bulwark against descent to arbitrary rule? Nothing in history suggests that this is so. A fundamental difference between a dictatorship and a democracy is that in the former, the interest of the extant regime is conflated with national interest. In a democracy on the other hand, it is the constitution as interpreted by the judiciary, an independent arm of government that determines what constitutes a threat to or subversion of national interest.
The executive cannot at once determine what constitutes a violation of national interest and security, pronounce as guilty those it perceives as being in breach of national security and interest as well as subject those so accused to prolonged imprisonment without trial in utter violation of court orders. If that happens, the bedrock of constitutional democracy, which is the submission of all those within a given territorial jurisdiction including the state to the sovereignty of the rule of law, has effectively been removed and nothing can sustainably continue to stand on nothing as the lawyers sagely remind us.
Yes, PMB may be naturally restrained and mature in the utilization of the enormous state powers at his disposal. Already, however, the Nigerian presidency is perceived to be one of the most powerful offices in the world. Not every President coming after him can be expected to be a Buhari. We must be wary of creating precedents that more ruthless and Machiavellian occupants of the office in future can cite or exploit to hound perceived enemies and do grievous harm to the country’s democracy.
PMB’s umbrage at the outrageous and unconscionable elite corruption responsible for the co-existence of obscene wealth for a few and the mass misery and impoverishment of the vast majority of Nigerians is understandable. It is dissatisfaction with this kind of gross inequity and injustice that informed the advocacy in a 1994 public lecture by legal icon, Professor Akin Oyebode, that “it was time we did away with the shibboleth of the rule of law and embrace the seemingly novel notion of the rule of just law or, more plainly, the rule of justice in order to re-establish the link between law and social reality”. This kind of elegant theorizing is in my view of little practical import in a liberal democracy like ours in terms of concrete policy.
There are two options for us. We can opt for a revolutionary approach to fighting corruption, which will entail terminating the current democratic process and allow President Buhari because of his anti-corruption credentials, to transmute into a maximum ruler for an interim period in order to enable him frontally confront the scourge of corruption without the encumbrance of the rule of the law. Thereafter, we can return to the practice of democracy. After all, is it not possible to argue that elections in which allegedly corrupt persons who have acquired humongous amounts of stolen resources can legally contest and even win, constitute a violation of national interest and security? In choosing such a path, let us never forget Lord Acton’s proven iron law that ‘power corrupts and absolute power corrupts absolutely’ no matter how saintly and well meaning its wielder may be perceived to be.
On the other hand, there is the possibility of working carefully and meticulously within the context of the extant liberal democratic system to identify weaknesses and initiate far reaching justice sector reforms to gradually turn things around. This is exactly what Vice President Yemi Osinbajo did as Attorney General and Commissioner of Justice in Lagos State between 1999 and 2007. In a comprehensive account of his tenure when leaving office, Osinbajo itemized no less than 30 problems identified on his assumption of office in 1999 and the concrete actions taken to address them through the Justice Sector Reform Programme implemented from 1999 to 2007.
These reforms were based on the recommendations of the Justice Committee, one of the Transition Working Groups inaugrated by the then Governor-Elect, Senator Bola Ahmed Tinubu, at the Lagos Sheraton Hotel & Towers on January 25, 1999. Permit me to refer at some length to only three items in Professor Osinbajo’s report:
- ERADICATION OF CORRUPTION IN THE JUSTICE SECTOR
Recommended Extract
“Corruption is a matter of serious concern not just for the administration of justice but for governance as a whole. It is clear that the ability to deliver on election promises will largely depend on the availability of resources. Where resources have been looted, as has been the experience in the past years, service to the people is impossible…It is therefore critical that institutions and policies are created to eliminate corruption”.
Action Taken
“The state Government has addressed the problem of corruption, especially in the judicial system by taking prompt action to remove affected persons from office…At the same time, significant efforts are made to improve the recruitment process, enhance the welfare of judicial officers, establish transparent procedures and cultivate a culture of zero tolerance for corrupt practices. At the point of making judicial appointments, the input of the State Bar Association is sought on each applicant. This allows for better scrutiny of applicants’ records. Those who may have complaints against him/her are also thereby given the opportunity to speak up. Furthermore, all complaints against Judges and Magistrates are promptly investigated by the Judicial Service Commission. So far, 3 judges and 22 Magistrates have had their appointments terminated on account of this disciplinary process”.
- APPOINTMENT AND TRAINING OF JUDGES AND MAGISTRATES
Recommended Extract“The 1999 Justice Committee recognized the fact that the number of judicial personnel was inadequate and that training facilities available to them were poor”
Action Taken
“During the past 7 years, over 30 High Court Judges and several Magistrates were appointed into the state judiciary. The process of selection has radically changed. The new policy entrenches merit as the principal consideration as rigorous tests and interviews now precede judicial appointments. Also potential lawyers are identified not only from the ranks of State Counsel and Magistrates but also among other lawyers in various fields of endeavour. This has considerably enriched the state Judiciary and changed the culture of judicial appointments for the better. In the Magistracy, promotion to higher levels now depends on performance in mandatory assessment examinations”
- OFFICE OF THE PUBLIC DEFENDER (LEGAL AID SERVICES)
Recommended Extract
“The government of Lagos State must quickly carve a niche for itself as a serious believer in human rights. Government can actively collaborate with Faculties of Law of the two universities in Lagos and civil society groups to establish Legal Aid Clinics and Centres in the State”.
Action Taken
“The Lagos State Government established a full-fledged Directorate for Citizens Rights in the Ministry of Justice in 1999. The Directorate has, among others, the Office of the Public Defender (OPD), and the Human Rights Protection Unit (HRPU). OPD offers free legal advice/representation in civil and criminal matters to the poor and most vulnerable. At the moment OPD operates from 5 centres across the state and has about 40 full time lawyers…To institutionalize the concept of free legal services, the State Government has enacted the Lagos State Office of the Public Defender Law, Cap L82, Laws of Lagos State 2003 which sets up OPD as a statutory body with its own management and staff structure”.
These are only three out of the over 30 reform initiatives in the Lagos State justice sector reforms contained in the Osinbajo 2007 report. Achieving meaningful justice sector reforms as well as meaningfully fighting corruption requires a well conceptualized and articulated plan and not the erosion of the rule of law or restricting democratic liberties. Critical to achieving this is a Minister of Justice/Attorney General with a capacity for hard work, attention to detail, passion for justice, creative thinking and impeccable integrity; an AGF with the human skills to mobilize the bar, the bench and civil society components to work harmoniously to achieve concrete positive reforms.
