Buhari assaults rule of law

Lekan Sote

The other day, President Muhammadu Buhari committed yet another political gaffe. He declared that “The rule of law must be subject to the supremacy of the nation’s security and national interest,” in a statement he made before lawyers at the 2018 Nigerian Bar Association Annual General Conference in Abuja.

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He betrayed the default Freudian slip of the military types who are impatient with “dogo turenchi,” long grammar, or niceties that accompany standard legal procedures. It is the cloth from which arbitrariness is made; the arrogance that fuelled the audacity of the self-righteous military junta led by young Maj. Gen. Buhari to execute a trio of cocaine couriers with a decree that was backdated.

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He buttresses his argument: “Our apex court (the Supreme Court, that is) 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.”

You can now see why his government adamantly refuses to release the National Security Adviser to former President Goodluck Jonathan, Col. Sambo Dasuki (retd.), and, leader of Islamic Movement in Nigeria Ibrahim El Zakzaky, whom the Nigerian courts have released on bail many times over.

Recall the Emergency Economic Stabilisation Bill that President Buhari sent to the National Assembly in 2016. He wanted sweeping powers to set aside some laws, and obtain somewhat legislative powers that will enable him to “roll out an economic recovery plan.”

President Buhari must have been encouraged by Section 45 of the Nigerian Constitution which allows that “Nothing in Sections 37 (right to privacy); 38 (freedom of conscience); 39 (freedom of expression); 40 (freedom to assemble); and 41 (freedom of movement), shall invalidate any law that is reasonably justifiable in a democratic society.”

These “reasonably justifiable” conditions include: “The interest of public defence, public safety, public order, public morality, or public health; and the purpose of promoting the rights and freedom of other persons.”  These exceptions should serve the purposes of Mr. President.

The exceptions make it expedient and acceptable to quarantine patients of the communicable Ebola disease, invoke the Doctrine of Eminent Domain to acquire private property for public use, or place the onus of proof on those accused of insurrection, rather than on the state.

Nobel laureate, Prof Wole Soyinka, thinks the President just gave a warning shot, notice of intention to violate the law. He reminds Nigerians that in 1984, military Head of State Buhari openly declared that he would tamper with the Freedom of the Press. And he did.

He prosecuted and incarcerated Tunde Thompson and Nduka Irabor of The Guardian newspaper vide Section 1 of Decree 4 of 1984, which says, “Any person who publishes in any form, whether written or otherwise, any message, rumour, report or statement or report, which is false in any material particular, or which brings or is calculated to bring the Federal Military Government or the Government of a State or public officer to ridicule or disrepute, shall be guilty of an offence under this decree.”

Buhari had to go and invent a draconian decree for ordinary libel, in a country that already had libel laws, which Steven Gifis defines as “a false and malicious publication, printed (or broadcast), for the purpose of defaming one (that is) alive, or maiming the memory of one (that is) dead.”

The Executive Arm must not be able to breach the laws—for whatever reasons. When you recall the warning of Thomas Sowell, African-American economist of the Chicago School of Thought, that “Politics is the art of making your selfish desires seem like the national interest,” President Buhari’s attempt to assume the prerogative of the judiciary to interpret the laws must be, needfully, resisted.

Law is one profession that doesn’t like a breach of the rule of law, yet lawyers don’t always insist on “Fiat justita, pereat mundes,” or letting justice be done, even if the world perishes. Attorney Femi Falana’s pompous Latin maxim, “Salus populi supremalex,” or the law of the society will take precedence over individual liberty, should remind President Buhari that the law has already forsaken erring citizens.

Also, journalists, who have assumed the role of trustees of freedom of speech, do not insist on full disclosure that can subvert national security. But more than 200 years before journalists assumed this trusteeship, political philosopher Jean-Jacques Rousseau had said, “All which an individual citizen alienates to the state is only part of his power, his property, and his liberty…”

Rousseau adds: “The sovereign… (the state or the state actors) cannot impose any burden on the subject (or citizen)…” Therefore, Nigerians must stoutly disagree with President Buhari, and halt a possible violation of their personal freedom for a purpose that only he, as President, would determine.

Falana thinks President Buhari should let the courts (or the constitution) decide what constitutes a threat to national security, instead of encouraging security agencies to disobey court judgments, or government itself acting with impunity by disobeying extant laws.

Now that Afenifere chieftain, Ayo Adebanjo, wants to know who decides what qualifies to be national security, maybe President Buhari needs to send his damage control counsellors to explain to the elder statesman  at Ogbo-Ijebu.

The arguments by jurists that a rape victim who does not offer her attacker enough resistance to show that she is not a voluntary accomplice to the sexual assault has not met the legal requirement known as “utmost resistance,” informs the reasoning that silence on this matter may be interpreted as citizens’ acquiescence.

Nigerians must demonstrate open disagreement with the President’s stated hint of intent to rape the freedom of the people. The rule of law must be upheld, and no dictator, benign, severe, military, or civilian, must be allowed to violate citizens’ rights.

Gifis describes law as “the legislative pronouncement of rules which should guide one’s actions in society; the aggregate of those rules and principles of conduct promulgated by the legislative authority, (court decisions), or established by local customs.”

The least requirement to make laws work is for the government, and the people, to obey all laws always; that’s rule of law. There is no room for arbitrariness, where governments, and renegade agents of the law, choose which laws to obey.

If the rules have to change, it would have to be according to law. If, for instance, the law that places the burden of proof of guilt beyond reasonable doubts on the state must be set aside, it must be through legislation.

International relations scholar, Hans J. Morgenthau, observes that “The national interest of a… nation can only be defined in terms of national security, and national security must be defined as (the) integrity of the national territory, and of its institutions.”

Morgenthau said nothing about the security of the government, which is no more than an agency of the citizens. The security of state actors, who are dispensable, by the way, came with the leave that citizens granted them to serve.

It is however comforting that President Buhari has assured German Chancellor Angela Merkel that he would respect the rule of law. All should be well if he keeps his word.

Twitter @lekansote1

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