By Frank Tietie
“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.”
–President Muhammadu Buhari, in his opening remarks at the on-going Annual General Conference of the Nigerian Bar Association holding in Abuja.
Even during a war, which is one of the most advanced form of armed conflicts, there is still the rule of law. There is what is referred to in international law as Law of War which is akin to the Law of Armed Conflict or International Humanitarian Law.
At no time in any democratic country and the international community, is law, especially human rights suspended, even in times of war or emergencies. When there are emergency powers, they are created and regulated by law.
President Muhammadu Buhari herein quoted above cannot use national security or national interest to justify government’s disobedience to orders of court directing it to either grant bail to specific citizens or commanding the government to perform specific acts.
It is in fact, the refusal of government to obey court orders that actually constitutes a threat to national security or national interest. A citizenry that is used to a government that has become a law unto itself would themselves as citizens, one day constitute themselves into a law unto themselves. That is what causes domestic implosion and ultimate disintegration of a state.
There is a reason for checks and balances in a democracy. The essence of the whole body of administrative law is for the delimitation of governmental powers to observe and enforce fundamental human rights with other rights guaranteed to the citizens by law.
The President was quick to cite the position of the Supreme Court in balancing national security and human rights or the rule of law but he has failed to recognise that it is only pronouncements from the courts that ultimately determine what is right or wrong. It is not the place of the government to determine what constitutes national security to warrant the disobedience of court orders. Rather it is the role of the courts to determine whether or not bail, for example, should be granted to a citizen, having considerations to national security or national interest.
There can no longer be any justifiable reason why the government would continue to keep Col. Sambo Dasuki in detention despite direct court orders granting him bail. The release of Col. Dasuki on bail cannot be plausibly shown to be of any threat to national security to the extent that the government would think the courts don’t know what they had done by granting him bail.
We should be ashamed as a country that the liberty of just one man like Dasuki would constitute a threat to national security to the extent that we would now allow the government to begin a process of destroying the foundations of our democracy.
Indeed, with all the arsenal of intelligence and organized force of Nigerian security agencies, it would be indeed shameful for a citizen like Dasuki, now an ordinary man, to pose such a threat and fear to the government. It would be wise for the govenment to make known its fears to both the courts and the Nigerian people.
Dasuki should be granted bail immediately because he is a citizen of Nigeria and more especially the courts have so directed.
President Buhari made the above assertion on the derogation of the rule of law in a large gathering of lawyers. The lawyers present at the occasion did not seize the opportunity to correct the President by stating to him that law, especially as pronounced by the courts, is supreme. Neither national security nor national interest as determined by one man or a few men in government should be the basis for disobeying court orders. The government must approach the courts with such evidence and they can continue to detain him if the courts agree and do say so.
Since the NBA missed the opportunity to correct the President at that gathering, it now has a duty not only to correct the President but to first convince itself that it is always in the best interest of a country and in furtherance of its national security, when all authorities, institutions and persons are subject to the rule of law as pronounced by the courts.
Frank Tietie is Executive Director, Citizens Advocacy for Social & Economic Rights (CASER)