The Nation Newspaper

Tag: Rule of law

  • National interest and rule of law

    It is not for nothing that President Buhari’s attempt to subjugate the rule of law to national security interests has drawn the ire of many. There are two strands of the president’s postulation.

    The first is that,” the rule of law must be subject to the supremacy of the nation’s security and national interest”. In the other, he claimed 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 a second place in favor of the greater good of the society”.

    Though a similar view by the Attorney General of the Federation (AGF), Abubakar Malami had passed seemingly innocuously, the deluge of resentment to the president’s speech can be explained on three grounds. The first is his choice of venue for his message – the annual national conference of the Nigerian Bar Association (NBA). If there is any group that should be worried about the overall implications of that statement on the society and their profession, it is the lawyers.

    Indignation is also reinforced because the subject matter has direct bearing on the conduct of the president in his current office and could be a subterfuge for rationalizing some of the infractions on the rule of law for which his regime has been criticized. We may begin to witness crass abridgment of individual freedoms and personal liberty taking refuge under such nebulous concepts as nation’s security and national interest. When that happens, descent into dictatorship and arbitrariness would have become a fait accompli.

    It may be apposite to explicate the key concepts in the discussion to aid proper understanding. They are: rule of law, national interest and national security. The rule of law, popularized by A V Dicey is a principle of governance in which all persons, institutions, entities public and private including the state itself are subject and accountable to laws publicly promulgated, equally enforced and independently adjudicated.

    This further finds expression in the doctrine of separation of powers and its concomitant checks and balances. Baron Montesquieu and John Locke hinged this theory on the tendency of man to abuse powers. They argued for separation of powers and functions between the three arms of the government with each acting a check on the other. These thoughts find expression in the organization of modern governance framework.

    National interest is often referred to in French expression as raison d’état (reason of state). It denotes a country’s goals, aspirations and ambitions while national security refers to the ability of a country to protect itself from threats of violence and attacks- economic, political etc. Here, reason of state refers to the basis for the existence of the state. And the basis for the existence of states; their goals, aspirations and ambitions are usually codified in their constitutions.

    The constitution represents the supreme body of laws under which a state or government derives its powers and finds justification for existence. It does not permit of a government that operates outside the laws setting it up. Social contract account of the theory of state further amplifies this position. The convergence in the thoughts of Thomas Hobbes, John Locke and Rousseau is that men created government for the purpose of securing their pre-existing rights- that their rights come first and government is created to protect these rights.

    The key message of social contract theory is that of the supremacy of the people in statecraft, encouragement of the growth of democracy and deterrence to arbitrariness of power. How do these address the controversy raised by the president’s statement? And where do we locate sovereignty or who is the ultimate sovereign?

    These posers highlight the huge contradiction in the attempt by the president to subject the rule of law to the supremacy of national security interest. The primacy of the rule of law and the subjugation of all persons, institutions including the state to it is the lynchpin on which modern governance frameworks revolves. If conduct of the state is regulated by law, the same state cannot subject the supreme laws of the land to interpretations that suit its whims and caprices without destroying the very foundation for its legitimacy.

    In effect, the rule of law recognizes separation of powers, checks and balances and vests the interpretation of the law on the judiciary. It also accommodates national and security interests. If national and security interests were to override the rule of law, the power to interpret when they have been breached will ipso facto be that of the executive to determine.

    When that happens, we would be left with a scenario where the executive combines its powers with judicial functions. That would amount to abuse and arbitrary use of power and inconsistent with tenets of democratic engagement. The danger in this was aptly illustrated by Lord Acton when he warned “power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men…”

    Implicit in this is the incongruity in having the executive combine its spheres of power with judicial functions. There is the added risk of those in power displacing national or security interests with their self-serving interests. Faced with such situation, both the rule of law and national interest are compromised. It is true that some jurists consider national interest incompatible with the rule of law but as Antonino Trojaniello argued, “national interest and a state subject to the rule of law are not absolutely incompatible”.

    Admittedly in war situations and national emergencies, individual rights may be abridged. But those are exceptional situations dictated by the exigencies of the period. It is for the same reason that military regimes suspend national constitutions on taking over governance. Since such regimes do not lay claim to democracy, they quickly put aside the supreme laws of the land so as to have unfettered latitude for dictatorship. But not in a democracy!

    This brings us to the second strand of the president’s argument that where national security and public interest are threatened, the individual rights of those allegedly responsible must take a second place in favour of the greater good of the society. This sounds less contentious as it follows the normal course of events in democratic organizations. It accounts for why law enforcement agencies deprive some suspects their rights as guaranteed by law.

    The law allows that for a limited timeframe to enable the authorities bring such persons before the courts. The intent cannot be for indeterminate detention of suspects. Even in such instances, the final authority to determine when national and security interests should take precedence over and above individual rights and personal liberty is still the judiciary.

    The president’s position may have stemmed from mounting criticisms over the continued detention of former national security adviser, Sambo Dasuki and the leader of the Islamic Movement in Nigeria, Ibrahim El-Zakzaky who in spite of several court orders have remained in the custody of the executive apparently hiding under national security interest. But after years of incarceration, whatever infractions that impinged on national security for which their release is being defied should have been brought before courts of competent jurisdiction for adjudication and determination.

    This illustrates the dangers in allowing the kind of scenario Buhari is seeking to foist on the country.  As the national elections draw nearer, such disposition could become a ploy to hound opposition to further objectives of very partisan and self-serving hue. We shudder at its prospects.

  • Buhari presidency wrong on rule of law versus national security

    AFTER scorning many court orders in the trials of Messrs Sambo Dasuki and Ibrahim el-Zakzaky, and keeping them locked up for years, the Muhammadu Buhari presidency has finally found the courage and legal precedent to justify its negative disposition to the rule of law. Speaking at the Nigerian Bar Association (NBA) annual conference in Abuja, President Buhari quoted a decision of the Supreme Court that seemed to approve the subordination of human and individual rights to national security interest. Predictably, the president’s statement has become deeply controversial because it appeared, at first view, to be constitutionally right and legally sound. But the devil is in the detail. Not only has the Buhari presidency consistently acted mala fide on the matter of rule of law and personal liberties, considering that it is a government apparently incapable of differentiating national security from private (government) interest, the legal justification cited by the presidency is jurisprudentially inexact and contextually fraudulent.

    It is not clear why it has taken more than three years for the Buhari presidency to find grounds for its disobedience of court orders. But, well, finally it has found some tenuous reasons, and has deployed them obscenely and awkwardly before the public. Citing both the provisions of the constitution and the decision by the apex court, the president loudly proclaimed that the rule of law must be subject to the supremacy of the nation’s security and national interest. He added: “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, the individual rights of those allegedly  responsible must take second place in favour of the greater good of society.” Even though the president did not attribute the relevant quote to any of the justices of the Supreme Court, and the Justice minister himself who last July flew that dangerous kite of subordinating civil liberties to national security also shied away from direct attribution, the apex court ruling in question was read by Ibrahim Tanko Muhammad, Justice of the Supreme Court, in the 2007 bail case between Dokubo-Asari (Appellant) and the Federal Republic of Nigeria (Respondent).

    The presidency’s adoption of that so-called Supreme Court position and citation was dishonest. It was a ruling alright, but it was in respect of the specific bail application by Dokubo-Asari who was detained over allegations of treasonable felony. The self-proclaimed militant had signed a document in company with others threatening to foment armed rebellion against the state over oil politics. It is well known to the presidency that lower courts do not as a routine cite the decisions of appellate courts as precedents in bail cases since bail cases are discretionary and differ from one case to another. So, to cavalierly hurl a quotation from a Supreme Court judgement in the public face and give the impression it should serve as a precedent for all bail cases is awkward and dishonest. In the Dokubo-Asari bail case decided in 2007, he faced allegations of treasonable felony. In the cases the Buhari presidency is apparently retroactively struggling to find justifications, to wit, Col Dasuki (retd.) and Sheikh El-Zakzaky, and in the process unwisely endangering the country’s democracy, one is in respect of corruption, and the other is in respect of murder and breach of public peace.

    When Justice Muhammad gave his ruling in 2007, a decision horribly quoted out of context by the Buhari presidency, he never gave the indication that it was applicable to all bail cases. He couldn’t have. But apparently Justice Muhammad’s ruling strikes a chord in the heart of the Buhari presidency. Notwithstanding, the judgement in question in the Dokubo-Asari case, even though not universally applicable, was irreproachable. (See box 2 for excerpts). It is only being mishandled and cruelly dragged into the wrong, suspicious cause.

    It is one thing for the presidency to find justification for flouting court orders, latching on inelegantly and dishonestly to the Justice Muhammad ruling; it is quite another thing to show why that disobedience must ineluctably lead the presidency to indulge in self-help. Whether in the Justice Muhammad ruling or any other ruling whatsoever in any Nigerian court, there was never a time the authority to determine what is in the national security interest was ceded to the presidency or the executive. Never. So, even if the Buhari presidency read the Justice Muhammad ruling accurately with all its nuances and legalisms — and it didn’t anyway, because it couldn’t — there was nowhere in that judgement that the right to abridge or abrogate the rights of an accused was left in the hands of the agents of government or the government itself. The president’s address read before the nation’s judicial experts was most unfortunate. It lacked rigour, is short-sighted, does not envision a great and powerful future, and cannot and must not be defended by any legal mind whether working in government or outside of government. What is most disturbingly true is that the Buhari presidency is instinctively autocratic and has struggled unsuccessfully for many years to exorcise itself of that dangerous antidemocratic instinct that seems fated to negatively define this presidency. It tried the Col Dasuki matter in the media, found him guilty, labelled him a serial killer of hundreds of thousands through corruption and criminal negligence, and expected that the gullible public already suffused with emotions and hysteria would embrace its quaint judicial procedure. It has half succeeded, undoubtedly, but there are still enough Nigerians in possession of their minds to question and caution the Buhari presidency’s lurch towards dictatorship.

    In sum, President Buhari is wrong on his reading and understanding of the quoted Justice Muhammad judgement, and wronger still on assuming that only the executive should decide what is in the national security interest. The courts now and in the past never abdicated their responsibility to determine who fouled the law. They will not abdicate that responsibility in the future. Nor will the constitution, even in its ambiguous worst, ever cede that right to the executive. As the excerpts below indicate, especially during the golden age of the Supreme Court, there are enough judgements to illustrate why the rule of law must never be subordinated to the arbitrary whims of the executive, regardless of the threat to national security.

    It is shocking and disturbing that the Justice minister, Abubakar Malami, in July flew this horrifying kite of subordinating the rule of law to national security at the behest and say-so of the executive. Because he was not vigorously challenged at the time, and conspiratorially knowing that President Buhari was instantly and eagerly amenable to any thought, law, or precedent that promotes his general disposition to autocracy, he obviously convinced the president that the unlawful and unconstitutional actions against Messrs Dasuki and El-Zakzaky were tenable under the law as presumably interpreted by the apex court. It is disgraceful that there are no longer enough men of conscience in the country to pressure the government to obey the law. And if a few months to the next polls President Buhari can openly embrace a hideous interpretation of the law, the country must wonder what other legal monstrosities he would embrace after he must have been endorsed a second time.

    It is clear that little debate is being undertaken in the presidency. If the president’s position on the rule of law is a collective government decision, then the country is just a hair’s breadth away from dictatorship. Neither the law nor the constitution permits the president to judge with finality when a citizen has breached national security. That the president has appropriated that right and is seeking validation should shame the country into finally seeing the Dasuki and El-Zakzaky affairs as nothing more than the boondoggle the presidency wants them to be. If the National Assembly did not have a legitimacy deficit in the eyes of the public, if legislative leaders lived and operated above suspicion, it would have been far easier to determine that the president has breached the constitution he swore to protect and defend. But regardless of this little difficulty, Nigerians must rise as one to demand unquestionable adherence to the rule of law. It is Col. Dasuki (retd.) and Sheikh El-Zakzaky today; who can tell whose turn it will be tomorrow?

  • Baba Lekki lectures on rule of law

    The ripples generated by President Buhari’s fearsome shellacking of the bar this past week are not about to subside. Partisans of the rule of law and the rule of lawyers have lined up on both sides of the great divide. According to Aleksandr Solzhenitsyn, the great Russian writer, the greatest test of a doctor is for him to suffer an affliction in his own area of specialization.

    All of which is to say that snooper is bemused by the cruel farce and the schadenfreude of it all. If Nigerians are this passionate about the rule of law, why is it that it is the rule of lawlessness that prevails in all aspects of national life? In almost all spheres of national existence, the logic of might takes precedence over the might of logic. It is not the brief that matters but the briefcase.

    You can trust the crazy duo of Baba Lekki and Okon to cotton in on to the legal miseries of the nation. A few days after the historic bombshell, the old contrarian and failed lawyer shambled in reeking of illicit gin and prohibited substance. He came to call Okon to the bar. Baba Lekki’s bar is a rundown beer parlour at Okokomaiko where the old crook doubles as a part-time legal pundit lecturing disaccredited and unaccredited legal wannabes thrown out of the country’s illegal law schools for want of diligent accreditation.

    “Come foolish Kukuruku boy, I wan test your constitution. A houseboy is not a homeboy and evidence of residence is not resilience of evidence”, the old man drawled with drunken self-importance.

    “Baba, you don come with dem Yoruba wuruwuru again?” the mad boy snorted with mischief as he packed up the dinner he was preparing. By the time they arrived at Okokomaiko, the place was already teeming with legal crooks, con-men, confederates and internally displaced hooligans on a short fuse and shorter leash. The fireworks began immediately. But Baba Lekki chose to ignore the ranting and launched instead into a windy disquisition about why India was disqualified from further participation in the Olympics Games.

    “Na for Indian magic,” the old man began with satanic relish. “For High Jump, dem Indian man say make dem put dem bar as high as dem like. Dem put am for like three storey building and the man come scale am just like dat. But when dem picture come back dem come see the man as him dey walk under dem bar. Dem say make dem no come back again becos even America come dey fear. So na for under the bar dem fire dem”.

    “So oga, wetin dis one come do with dem rule of law?” one man shouted.

    “You see, for African jungle the first rule of law is that there is no rule of law”, Baba Lekki replied with poker-faced malice.

    “Chineke!!! So na dis yeye nonsense I come pay for?” the irate man screamed as he released a torrent of hate-filled vernacular curses.

    “It is the jurisprudence of a living oracle”, a man with deep tribal marks and a sleepy stare mumbled as he fell back into his alcoholic stupor. His drinking crony, a scholarly crackpot from Eruntoto, rose unsteadily to counter the argument.

    “Rule of law depends on the oracles of living jurisprudence and not the jurisprudence of living military oracles”, he screamed and fell on the floor in a drunken heap.

    “So, what is the ruse of law?” a diligent looking indigent student demanded.

    “Ha ayua!! Ruse of law means there is no rule of law, period”, Baba Lekki snapped.

    “Is this not an invitation to anarchy?” a bright-looking boy demanded.

    “Anarchy, my foot. You cannot invite what is already there”, Baba Lekki snorted.

    “Is this not a return to the state of nature?” another wailed.

    “Hobbes is a fool. The state of nature is better than the nature of the Black state”, Baba Lekki sniggered with a sadistic grin.

    “I am leaving. I don’t want this anoya to dabaru my head”, the irate man screamed and walked out. A hush fell on the bar. Then one man broke the ice.

    “Baba, me I no sabi obonge grammar. Wetin be dem difference between General Babangida and General Buhari for korokoro law?”. Baba Lekki’s eyes glowered with mischief.

    “Ha, dat one na correct question. You see, Maradona dey play and him dey dribble everybody until he come dribble himself and come score against himself. But dis one no dey play at all. Na only penalty him dey play. But dis time, he come shoot over dem bar.  So football come disappear.”

    On that note, somebody threw a bottle and the old man took to his heels with Okon in hot pursuit.

  • Supremacy of the rule of law. Excerpts from the judgement delivered in the case:MILITARY GOVERNOR, LAGOS STATE & ORS. V CHIEF EMEKA ODUMEGWU OJUKWU (1986)

    Kayode ESO, JSC: [P. 1798, paras. D – E]

    “ANOTHER very important matter emanates from the act of the applicants. They have no right to take the matter into their own hands once the court was seised of it. The essence of rule of law is that it should never operate under the rule of force or fear. To use force, seek the court’s equity, is an attempt to infuse timidity into court and operate a sabotage of cherished rule of law. It must never be!”

    Andrews OBASEKI, JSC: [P. 1799, paras. C – E]

    “In the area where rule of law operates, the rule of self-help by force is abandoned. Nigeria, being one of the countries in the world, even in the third world, which profess loudly to follow the rule of law, gives no room for the rule of self-help by force to operate. Once a dispute has arisen between a person and the government or authority, and the dispute has been brought before the court, thereby invoking the judicial powers of the state, it is the duty of the government to allow the law to take its course or allow the legal and judicial powers of the state (…) it is the duty of the government to allow the law to take its course or allow the legal and judicial process to run its full course. The action the Lagos State Government took can have no other interpretation than the show of intention to preempt the decision of the court. The courts expect the utmost respect of the law from the government itself which rules by the law.”

    Andrews OBASEKI, JSC: [P. 1802, paras. B – E]

    “I will be doing injustice to the course of the rule of law if I grant this application and allow the eviction of the respondent to stand. The Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the framework of recognised rules and principles which restrict discretionary power which Coke colourfully spoke of as “golden

  • Soyinka criticises Buhari on rule of law, national interest

    Nobel laureate Professor Wole Soyinka has criticised President Muhammadu Buhari for saying that rule of law can be suspended for the sake of national security or interest.

    Soyinka claimed that Buhari was preparing an alibi for disregarding judicial decisions.

    The President made the comment on Sunday at the opening of the 58th Annual General Conference of the Nigerian Bar Association (NBA) in Abuja.

    Relying on a Supreme Court judgment, he said: “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 society.”

    But Soyinka, in a statement titled Buhari’s pernicious doctrine’ faulted the President’s position.

    Soyinka said: “Here we go again! At his first coming, it was ‘I intend to tamper with Freedom of the Press’ and Buhari did proceed to suit action to the words, sending two journalists Irabor and Thompson to prison as a reward for their professional integrity.

    “Now, a vague, vaporous, but commodious concept dubbed ‘national interest’ is being trotted out as alibi for flouting the decisions of the Nigerian judiciary.”

    Soyinka wondered if President Buhari’s incarceration by the former President Ibrahim Babangida’s regime was also in the ”national interest”.

    He thanked the President for notifying Nigerians of his intentions in advance.

    Soyinka said: “The timing is perfect, and we have cause to be thankful for the advance warning, since not all rulers actually make a declaration of intent, but simply proceed to degrade the authority of the law as part of the routine business of governance. We have been there before.

    The playright challenged the the Nigerian Bar Association (NBA) to give a “robust response”.

    He said: “It should be of mere interest, not despondency, that this latest proclamation of dictatorial recidivism has also been made before an assembly of officers of the law, the Nigerian Bar Association. We expect a robust response from the NBA as part of its conclusions.

    According to Soyinka, “There is no short cut to democracy.

    “The history of law, even where uncodified, is as old as humanity. Numerous rulers have tried again and again to annul that institution. Sometimes, they appear to succeed, but in the end, they pay heavy forfeit. So does society.

    “The Rule of Law, however, outlasts all subverters, however seemingly powerful. If the consequences for society in defence of the Rule of Law were not so costly, any new attempt would be merely banal and boring, hardly deserving of attention. We know, historically, where it will all end.”

  • ‘Buhari’s elevation of ‘national interest’ above rule of law legal, constitutional’

    Project-2019 (P2019), a civil society organisation on Thursday said that President Muhammadu Buhari‘s statement on national interest and the rule of law is legal and constitutional.

    Mr Wale Ogunade, Convener of the group told the News Agency of Nigeria (NAN)  in Lagos, that President Buhari ‘s statement was a restatement of the provisions of the laws of the Federal Republic of Nigeria.

    Read Also:Buhari to May: 2019 polls will be free, fair, credible

    According to him, the President’s statement takes its foundation from the fact that, the rule of law can only exist when the national interest and security is secured in a state of peace and tranquility.  Otherwise, it is a farce.

    President Buhari while flagging off the 2018 Annual General Conference of the Nigeria Bar Association (NBA) in Abuja on Sunday,  asserted the supremacy of national security and interest over and above the rule of law, quoting a judgment of the Supreme Court.

    He said: “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  being threatened, the individual rights of those allegedly responsible must take second place in favour of the greater good of the society”.

    Ogunade said that fundamental rights of citizens are not absolute as there could be limitations.

    ”As active stakeholders in the political development of the country, it becomes imperative to examine the statement dispassionately and objectively for the collective good.

    ”While it is a recognised fact that the rights of citizens are fundamental according to the constitution and international treaties of which Nigeria is a signatory, it’s also a fact that such rights are not absolute on their own, but with limitations.

    ”For example, the right to free speech is limited by the aftermath of libel or slander by whoever has been defamed.

    ”Also, the fundamental right of a citizen to free movement can be limited in the public interest or national security, if his or her actions constitute a threat to societal order through the provocative act of assaulting public sensibilities. For  example, exercising the right to movement naked.

    “‘Again, the right of an individual or group to practice his/their religion is not an absolute right to permit the infringement on the rights of other citizens through making the public space inaccessible to them in the discharge of one’s religious rights.  This is tantamount to a threat to public or national interest.

    ”Again, the fundamental right of association of citizens, of being members of an ethnic nationality or group does not confer on them, the absolute right to undermine national security by deriding and threatening the lives of other citizens who are not of same ethnic stock.

    ”This act if not curtailed is a threat to national security and interest.

    ”Furthermore, under our laws, an individual right to property can be abridged in the public or national interest by the state, through acquisition and the right of the former owner can only be remedied by compensation in most cases only on the basis of the owner having legal documents to the property.

    ”This again is a reaffirmation of the fact that where national or public interest comes into contact with individual right, the latter becomes subsumed, ” he said.

    Ogunade said that section 45 sub-section 1 of the 1999 constitution is clear on the issue.

    According to him, the power to determine what constitutes a threat to national security and national interest  is solely vested in the executive arm of government for now.

    ”Section 45 (1) of the 1999 constitution states explicitly that:

    “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 of other person’s.

    ”Therefore, instead of dissipating energy of whipping up emotions and sentiments in condemning Mr President’s statement which is in alignment with provisions of our constitution, we will be more interested in extensive public engagement on this matter if and only if genuine and legitimate concerns are directly focused towards curtailing the abuse of power likely to arise from the power to determine what constitutes a threat to national security and national interest which is solely vested in the executive arm of government for now.

    ”Like the French philosopher Montesquieu posited, power corrupts and absolute power corrupts absolutely.

    ”Unless and until the law is amended  to take care of the concerns noted above, President Buhari’s statement is a restatement of the provisions of the laws of the Federal Republic of Nigeria which is indisputably right, ” he said.

     

  • Falana to leaders: you have contempt for rule of law

    •NBA slammed for being docile

    Activist-lawyer Mr. Femi Falana (SAN) said yesterday that leaders had contempt for rule of law.

    He blamed lawyers for not resisting disobedience of court orders.

    Falana recalled that in the past, the Nigerian Bar Association (NBA) shut down courts when the government disobeyed orders.

    He said today, the NBA has become “comfortable” with the violation of the rule of law.

    The respected SAN spoke at the ongoing Annual General Conference of the NBA in Abuja, with the theme: “Transition, transformation and sustainable institutions.”

    Speaking during a session on “Rule of Law and Security”, Falana criticised attorneys-general, who he said encouraged their bosses to disobey court orders.

    Reacting to President Muhammadu Buhari’s statement at the conference opening that “the rule of law must be subject to the supremacy of the nation’s security and national interest”, the activist-lawyer said the issue was about who defined national security.

    “What the President, with profound respect, was saying on Sunday is what they call in East Africa ‘rule of rulers’, not rule of law. We need to strike a balance between the rule of law and national security.

    “State security does not mean the security of the government in power. It means the collective security of Nigerians.

    “When you disobey a court order, you are inviting anarchy and chaos, and that is subversive of national security,” he said.

    Falana referenced the detention of Islamic scholar Ibrahim El-Zakzaky and his wife despite court orders that they be released.

    He said although El-Zakzaky was later accused of murder, those charged with him for the offence had been discharged and acquitted.

    Falana said: “I can tell you today that all the governments in Nigeria, including Abuja and all the 36 states, have contempt for the rule of law, and our colleagues, who are attorneys-general, connive with the government, including President Buhari and the governors.

    “There is none of them who will not seek the legal advice of the attorney-general if confronted with obedience to court orders. It is our colleagues who will advise: ‘We don’t need to obey the order.’”

    He said he once challenged a governor why he did not obey a court order.

    According to him, the governor’s response was that his attorney-general told him there would be an appeal, and that before the case was decided by the Supreme Court, they would have left office.

     

     

  • Buhari’s remark on rule of law

    SIR: Speaking at the Nigerian Bar Association’s Annual General Conference, President Muhammadu Buhari, in his usual frank and no-hold-barred characteristics, stirred the hornet’s nest when he argued that the principle of Rule of Law was subservient to ‘national security and national interest’.  Expectedly, the statement has provoked public reactions and commentaries.

    The concept of Rule of Law is a globally acceptable democratic tenet that places prominence on strict adherence to the due process of law. It presupposes, ipso facto, that everyone is equal before the law and that due process of law must necessarily take the centre-stage in administering the affairs of the state. The late Nigerian Jurist, John Idowu Taylor, very profoundly captured this position while delivering judgment in the Re: MOHAMMED OLAYORI & 2ORS (1969) 2 All NLR at page 308 as follows: “if we are to have our actions guided and restrained in certain ways for the benefits of society in general and individuals members in particular then, whatever status, whatever post we hold, we must succumb to the rule of law. The alternative is anarchy and chaos…”

    Howbeit, like every concept, this principle is not cast on the stone; that is to say, there are limitations to its application, and we have seen this severally play out in Nigeria and across the world. We witnessed this when the 7th Nigerian Senate invoked the so-called Doctrine of Necessity in 2010 to make the then vice president, Goodluck Jonathan, acting president to save the country from constitutional precipice. National interest and national security had become threatened at the material time leading to the lawmakers’ intervention.

    Maybe, President Buhari’s mind was operating in this direction when he made that remark, or perhaps, he was simply saying this to justify his government’s continuing disregard of the subsisting order of the court granting the detained former National Security Adviser, Col (rtd) Sambo Dasuki bail.

    In fairness to President Buhari, the Nigerian courts have had to take a position on this controversial issue and even appeared to lay credence to his argument. Indeed, President Buhari alluded to a Supreme Court decision that agrees with his view.

    Nevertheless, it should be clearly pointed out that the power to determine when the national interest or national security takes prominence over the rule of law is the exclusive reserve of the judiciary and does not domicile in any other arm or organ of the government. And this conclusion is usually reached after a careful evaluation of evidence and material particulars presented before the court. To do otherwise, is to descend into the era where life is nasty, brutish and short, according to the English philosopher, Thomas Hobbes. A lot more, however, needs to be done by the judiciary to restore public confidence in the administration of justice system and truly make it the bulwark of the nation’s democracy and bastion of hope for both the strong and the weak.

     

    • Okoro Gabriel, Esq.

    Lagos. 

  • Premium Times, SARS and rule of law

    LAST Tuesday, Acting President Yemi Osinbajo directed the Inspector General of Police (IGP), Ibrahim Idris, to overhaul the structure and operations of the Special Anti-Robbery Squad (SARS), a police unit unfortunately more famous for rights abuses than success in fighting robbery and kidnapping. Just one day after, Mr Idris announced a number of measures to restructure and refocus the anti-robbery squad. The measures were of course largely cosmetic, considering that they neither go deep enough nor offer fundamental understanding and revitalisation of the controversial squad. One proof that Mr Idris does not intend a fundamental reform of the squad is the arrest and detention of the Premium Times reporter, Samuel Ogundipe, by the police, with SARS deeply involved, for alleged offences unrelated to robbery and kidnapping. It was clear all along that the squad had achieved notoriety, and the police were content and frequently eager to deploy that fearsome notoriety for objectives that were in many respects unconstitutional and less than salutary and patriotic.

    Mr Ogundipe’s arrest came on the same day the acting president gave the directive on SARS. In a statement issued by his spokesman, Laolu Akande, Prof Osinbajo said: “Following persistent complaints and reports on the activities of the Special Anti-Robbery Squad (SARS) that border on allegations of human rights violations, Acting President Yemi Osinbajo, SAN, has directed the Inspector General of Police (IGP) to, with immediate effect, overhaul the management and activities of SARS and ensure that any unit that will emerge from the process, will be intelligence-driven and restricted to the prevention and detection of armed robbery and kidnapping, and apprehension of offenders linked to the stated offences, and nothing more. The acting president has also directed the IGP to ensure that all operatives in the emerging unit conduct their operations in strict adherence to the rule of law and with due regard to International human rights law and the constitutionally guaranteed rights of suspects. The operatives should also bear proper identification anytime they are on duty.”

    The directive is unambiguous. In fact, one of the sentences contained in the directive to the police is poignantly specific. It orders the reformed squad to restrict itself to the “prevention and detection of armed robbery and kidnapping, and apprehension of offenders linked to the stated offences, and nothing more.” Nothing in the allegations against Mr Ogundipe, not to talk of the charges filed against him in court, suggests robbery or kidnapping. Yet, SARS played a leading role in his distress. Indeed, many analysts who grudgingly welcomed the directive to reform and restructure the squad showed deep scepticism about both the capacity of the police leadership to carry out the ordered reforms and the willingness to remedy the damage the squad has done to policing in Nigeria. The sceptics were even more afraid that going by the appointments made into police leadership over the years, the law enforcement agency did not seem able to demonstrate the emotional and intellectual capacity to reform the entire Force, especially the squad they love to describe as dreaded.

    Less than 24 hours after the presidential directive to restructure and revitalise SARS, the police hierarchy immediately announced wide-ranging measures to demonstrate their compliance. They did not give themselves time to study the problems they were being asked to manage and reform, and they also took no time to empanel some of their best brains — surely they have them — to meet minds on the abuses Nigerians had complained about, and which the presidency latched onto to order fundamental remediation. Instead, more officiously than substantially, the police hastily centralised the operations of SARS under a commissioner of police answerable to the IGP in the mistaken belief that one of the squad’s weaknesses was the lack of high-level supervision. The police hierarchy then listed a number of measures that do nothing but tinker with the structure and operations of the squad along lines that had proved nugatory in the past years.

    The cosmetic police measures, more than anything else, indicate that it will be business as usual. The treatment meted out to Mr Ogundipe, the arbitrary freezing of his bank account, the hostility of the SARS operatives who interacted with the Premium Times editors, and the intimidation of the detainee and his media establishment all point to the fact that fundamentally nothing has changed or will change in the structure and operations of the police to elicit the new police envisioned by the acting president. The problems of the police are deeply fundamental, and involved the anomalous and inoperable political structure of the country itself. Neither the acting president nor the police boss has suggested in words or actions that they acknowledge this problem. Even as far as tinkering goes, the police, as currently constituted, are not properly managed, supervised and funded to deliver the change the country desires.

    The directive on SARS is unlikely to deliver more than a short-lived cosmetic change. Mr Idris cannot give what he does not have, and his men are too far gone to help him or help nudge the Force in the right direction. The police will continue to expose a few of the bad eggs in their midst, but they have proved incapable of asking themselves why the corruption and brutality in SARS and the wider police establishment subsist, or why these maladies have proved difficult to tame for so long. Even the presidency has been incompetent to ask itself why the police have been unamenable to change, why the military have nurtured a culture of brutality over the decades, as the 2015 Zaria killings illustrate, and why the Department of State Service (DSS), especially under its immediate past director-general, perpetrated appalling abuses right under their noses.

    This is, however, not to say that Premium Times could not have managed the story that pitched them against the police better. Publishing the bromide of the IGP’s official report barely a day after it was submitted to the acting president seems to be sailing near the wind. Premium Times could have paraphrased the outcome of the investigations, intentionally omit some of the details, and attribute items of the report to sources within or close to the police hierarchy. It is not clear whether it was altogether a wise idea to slam everything on their web site.

    Nevertheless, the media in Nigeria must be grateful that Premium Times baited the police and helped to expose their dilatoriness, not to say their incompetence and lack of professionalism. When the smoke of battle clears, the media are likely to embark on rigorous self-examination to help them determine whether in the circumstances and chronology of events surrounding the IGP’s interim report on the DSS invasion of the National Assembly, the news reports and journalistic investigations, complete with evidence of bromides of official letters, were well handled.

    Given their customary haughtiness and lack of vision, the police are unlikely to embark on that beneficial and extraordinary self-scrutiny.

    Even though Prof Osinbajo has understandably not taken far-reaching measures on SARS as an ailing subset of the police, he must be commended for broaching the topic and doing something about it, no matter how ephemeral, and regardless of the vacillations of the past. Given his law background, it is doubtful whether he does not appreciate that it will take more than a directive and a few suggestions to get the police performing its role in accordance with the rule of law and the constitution. He must know that very fundamental measures are required to birth a new and effective Police Force.

    The presidency of which he is a ranking member has done little to midwife the change required in that law enforcement sector. After all, the long-standing complaints against SARS and the campaigns of the #EndSARS warriors that lasted for many months did not receive any serious attention until early this week, probably against the run of play.

    Worse, who can forget that the police themselves feigned ignorance of the issues advocated by critics of SARS, even as they attempted to blackmail the public for demanding an end to the high-handedness and arbitrariness of the police and the anti-robbery squad? Hopefully both Prof Osinbajo’s directive and the desultory response of the IGP will constitute the first tentative steps in getting an elected government to respond appropriately and sensibly to the yearnings and aspirations of those who voted them into office.

  • Olubadan to govt: respect chieftaincy law

    The Olubadan of Ibadan, Oba Saliu Akanmu Adetunji, Aje Ogungunniso I, has urged the public to perish the thought that the controversial approval of beaded crowns by the Oyo State government to Ibadan high chiefs and baales is irreversible.

    The frontline monarch stressed that “our case against the state government is alive”.

    In a statement yesterday in Ibadan, the Oyo State capital, by his Personal Assistant/Director of Media and Public Affairs, the Olubadan urged Governor Abiola Ajimobi to be mindful of the court on the controversial chieftaincy review and respect the rule of law.

    Apparently reacting to a statement credited to Ajimobi while distributing cars to 36 traditional rulers, Oba Adetunji recalled that a judgment delivered  by Justice Aiki of the Oyo State High Court had declared the chieftaincy reform illegal, null and void.

    He said: “Afterwards, the Oyo State government decided to file an appeal at the Court of Appeal. My position is that if a case is in court, it is no longer open for discussion, as this statement is automatically subjudice. If it is not reversible, why did the two parties have to go to court?”

    Oba Adetunji also faulted the statement that the controversy which followed the crowning of Ibadan traditional rulers was political, saying the issue raised is customary and traditional.

    He said: “My humble opinion is that the procedure for approval of beaded crowns for any chief or baale in Ibadan was not discussed at the Olubadan-in-Council level. If it was discussed, how would any of the high chiefs bear two titles at the same time? Oba and high chief! An abomination!”

    The Olubadan, who said though he did not oppose the government’s presentation of cars to traditional rulers, urged Ajimobi to prevail on the kings to release the 11-month salaries of palace workers they have allegedly been withholding with Olubadan’s salary cheques, when the allocations to traditional councils had been released.

    According to him, it is to avoid a breakdown of law and order in Ibadan and beyond he had maintained dignified silence.

    Oba Adetunji noted that if the motive behind the reform was to modernise tradition, the move had bred indiscipline and what he called “gangsterism”.

    The Olubadan recalled what he called a failed attempt by “the so-called new kings, backed by the Oyo State government, to undermine the authority of the Olubadan, who decreed ‘no masquerade dance’”.

    He added: “Even when all masqueraders under the leadership of the Olori Alagbaa, Baale Labala and Aare Isese of Ibadan complied with the order, the state government with one of its commissioners went on propaganda spree, saying the Olubadan’s order had been disobeyed as masquerades danced in one of the embattled high chief’s compound.

    “We told them to produce the pictures on newspaper pages or television screen. Was Atipako there? Was Alapansanpa there? Was Olunlade there? Was Oloolu there?”

    On the purported statement credited to Alaafin of Oyo, Oba Lamidi Adeyemi, decrying long-term reservation of Ibadan to have more monarchs, Oba Adetunji advised the Oyo top monarch to recommend his high chiefs to become crown-wearing obas, if it was so desirable.