*By Emmanuel Onwubiko*
Did we just read that president Muhammadu Buhari told lawyers that if you put national security side by side with the rule of law, that national security comes first?
This is an unmitigated assault on constitutional democracy which must not be allowed to be swept under the carpets because it is manifestly erroneous and obscenely illegal. His resort to holding on to a so called supreme court’s decision which he refused to disclose the particulars makes the entire claims puerile, spurious, unbelievably shallow and therefore a nullity to the extent of its inconsistency.
Shamefully, the lawyers sat down as the head of the executive arm of government embarked on this one man show of intellectual shame. The President has wounded the truth and must be corrected with all the speed that can be mustered. We will first determine the essence of constitutionalism which is the be all and end all of the form of government in practice in Nigeria without which there would be formlessness.
Can I therefore state here and now that the essence of constitutional democracy is defined from the prism of prime respect for the principle of rule of law because if you make law secondary over and above any other thing, what will inevitably come out of this obscene marriage is illegality. National security is a child of the law and not the other way round. National security just like the concept of nationalism is only but a part and not the whole but the law encapsulates the whole. The law is bigger than the whole so to say. It is within the larger concept and contexts of the law that society is captured.
The society is what it is because of the law and you can’t speak about national security without the law. In fact you can’t speak to the issue of the office of the presidency without first and foremost laying your foundational argument from the law. The President as the head of the executive arm of government is not bigger than the law from which his powers and functions are generated/evolved.
President Muhammadu Buhari should kindly spare time out of his busy presidential schedules to school himself in the scholarly works of Dr. Tunji Abayomi titled “Constitutional Powers and duties of the president” and read other equally edifying works even much more elucidating and ennobling than the aforementioned book by Dr Abayomi which I find too patronising to the holder of the Presidential office.
Dr Abayomi made a very interesting, intriguing but valid statement regarding the essence of the constitution when he wrote thus: “Simple arguments against the origin and consequent legitimacy of the 1999 Nigerian Constitution ascertain the validity of its unconstitutionality. For it should be clear that it is never a government that gives a nation a Constitution, rather it is a Constitution that gives a nation a government.
As a valid Constitution must take its origin from the consent of the people and be subjected to it only, when freely given, usually in an uninhibited uniform manner, a Constitution becomes not an ordinary law and cannot be a law. As it should be clear, an ordinary law is made by a legislative department, which, in itself, is a consequence, usually of a Constitution. As to the Constitution, the authority and source of all valid Constitutions lie in the people themselves.”
Writing on the title of the decline of the ideal state, one of the most venerated fathers of philosophy Plato completely faulted the logic of the affirmation by president Buhari that the law becomes secondary to national security.
Indeed Plato made us to understand that the law is supreme and must enjoy a prime position in the affairs of human society.
Hear him: “The decline of the ideal state if the state is “man writ large,” then, said Plato, a state will reflect the kind of people a community has become”.
An analyst offered a profound explanation by asserting that What Plato had in mind was that although the nature of man is fixed, in that all men possess a tripartite soul, the kind of men people become will depend upon the degree of internal harmony they achieve.
“The state will therefore reflect these variations in human character.”
For this reason, Plato argued that “constitutions cannot come out of stocks and stones; they must result from the preponderance of certain characters which draw the rest of the community in their wake.”
As a thinker of the most refined mode, Plato also stated as follow: “So if there are five forms of government, there must be five kinds of mental constitution among individuals. And these five forms of government are aristocracy. Timocracy, plutocracy, democracy, and despotism.”
“Plato considered the transition from aristocracy to despotism as a step-by-step decline in the quality of the state corresponding to a gradual deterioration of the moral character of the rulers and the citizens. His ideal state was, of course, aristocracy.
In Aristocracy, Plato said the rational element embodied in the philosopher-king was supreme and where each person’s reason controlled his appetite.
Plato emphasized that this was only an ideal. Though significant, nevertheless, as a target to aim at.
He was quoted as been deeply disenchanted with politics, particularly because of the way Athens had executed Socrates and had failed to produce consistently good leaders.
Plato was credited with saying that: “As I gazed upon the whirlpool of public life,” he said, “[I] saw clearly in regard to all states now existing that without exception their system of government is bad.” Still, the norm for a state is aristocracy, for in that form is found the proper subordination of all classes.”
Another vastly respected scholar is the Metropolitan Archbishop of Abuja and the most senior catholic clergy in Nigeria John Cardinal Onaiyekan who only recently marked over four decades as a Bishop.
Known for his high erudition in the universal concept of peace building and conflicts resolution, Onaiyekan recently penned a beautiful booklet titled: “Thy Kingdom Come: democracy and politics in Nigeria today: a Catholic perspective”.
John Cardinal Onaiyekan rated respect for rule of law and adherence to the time- tested and time-honoured human rights laws as the most important element of political leadership in any constitutional democracy.
Hear him: “Then there is also the issue of the dignity of the human person. Man is an absolute value in himself, precisely because God has put his Spirit in each and every human being. (Gen 1:27; 2:7) There is an element of the divine in each person. This is not why human being has any absolute right over another, nor can the state claim to own its citizens.”
The top clergy argued that this is the basis of the famous fundamental human rights which no one and no state has any right to take away from the individual citizens.
“Obviously the individual too has the corresponding duty to live up to his dignity and use his freedom in the right way so as to ensure good relationship with others who also have their own rights. There is therefore the inter-relationship between the absolute power of God, the relative power of the state, and the absolute dignity of the human person, all working in harmony for the common good of the society and to the greater glory of God.”
A versatile human rights legal mind supports Cardinal Onaiyekan well informed positions that has deep rooted theological basis.
“The availability of legal remedy to an injured or aggrieved party is critical to the efficacy of a legal right, and is therefore a fundamental right in itself which must be accorded equal recognition and protection as the guaranteed legal rights under the Constitution”.
The lawyer Frank Agbedo said the machinery for the attainment of this remedy is through the process of litigation or adjudication, where the lawyers deploying effective application of law and rules of procedure, espouse the cause of the applicant or injured party towards the due enforcement of these rights in a Court of law.
The foregoing is even more apposite in relation to matters that pertain to enforcement of fundamental rights of citizens even as he asserted that the 1999 Constitution, as amended, accords special recognition to such rights by devoting whole chapters and creating a special procedure for their enforcement. This therefore places them on a higher pedestal than ordinary civil matters..
He argued further: “Implicit in this special recognition is the fact that unlike in ordinary civil matters, in an application for enforcement of fundamental rights, once the applicant has proved the violation of his fundamental right, in relation to unlawful arrest or detention, by the respondent, he is entitled to damages in the form of compensation and an apology. This is treated as a matter of cause, even without specifically proving the damages.”
The growth and development of human rights in Nigeria he observed had therefore been spurred by the evolution of special procedure for enforcement of fundamental rights, with the Courts being conferred with special jurisdiction to deal with cases of violation of human rights timeously.
It was therefore in this light, he posited that the first special procedure for enforcement of fundamental rights, known as The Fundamental Rights (Enforcement Procedure) Rules, 1979 was made and promulgated into law by the Chief Justice of Nigeria at that time.
Unfortunately, he noted, the 1979 Rules hardly met the expectations of the populace as it was bedeviled with several procedural impediments which had impeded the realization of its objectives of securing and expanding access to judicial remedy by victims of human rights violations.
“This had paved the way for the coming into force of the current 2009 Rules, made by the former Chief Justice of Nigeria, Hon. Justice Idris Legbo Kutigi, in his avowed commitment towards eliminating the said procedural technicalities, associated with the old rules. Consequently the previous rules became ineffective, particularly the vexed issues of locus standi and requirement of leave as preconditions for the commencement of action. (HUMAN RIGHTS LITIGATION IN NIGERIA: LAW, PRACTICE AND PROCEDURE with Forms and Precedents By FRANK AGBEDO).
It is therefore incongruous to understand how President could have found a supreme court’s verdict which will support his current disposition to bypass binding judgments of the competent courts of law in the guise of some nebulous national security interest which he has on his defined as disrespecting the courts in any matter he deems above the rule of law.
Nigerians should demand to know the particulars of this verdict he sort to quote as supporting his decisions not to respect many valid court judgments in the cases of Colonel Sambo Dasuki and Sheikh Ibrahim Elzackzacky. I ask again if the Chief justice of Nigeria and the leaders of Nigerian Bar Association were asleep when Buhari chose to say that national security is higher in value than the principle of rule of law?
President Muhammadu Buhari was indeed quoted as stating that the rights of individuals in the society must always take a second place where national security and public interests are threatened.
President Buhari said this while declaring open the 58th Annual General Conference of the Nigerian Bar Association (NBA) in Abuja with the theme: “Transition, Transformation and Sustainable Institutions’’.
He said although his administration subscribes to the rule of law as the foundation of the society, it is also guided by the belief that the 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 Buhari said.
Mr. President! This your assault on human rights must not stand because it will result in fascism and tyranny.
*Emmanuel Onwubiko heads the Human Rights Writers Association of Nigeria (HURIWA)