By Kingsley Omose
Context or the set of circumstances or facts that surround a particular event, situation provides meaning of what is intended to be, or actually is, expressed or indicated; signification; import.
At the 2018 Annual General Conference of the Nigerian Bar Association in Abuja on August 27, President of the Federal Republic of Nigeria and the Commander-in-Chief of its Armed Forces, Muhammadu Buhari, gave a keynote address.
Speaking to an audience that included the Chief Justice of the Federation, Walter Onnoghen, the outgoing and incoming presidents of the Nigerian Bar Association, Abubakar Mahmoud and Paul Usoro, President Buhari is reported to have said: ”Rule of Law must be subject to the supremacy of the nation’s security and national interest”
When I saw news paper headlines on this development, my initial thoughts were that the quote ascribed to President Buhari were either made extempore or that he had been misquoted by the press.
To my shock, the quote which clearly meant that issues of national security and national interest had supremacy over the Rule of Law formed part of President Buhari’s written address delivered at the Nigerian Bar Association conference.
Ordinarily, any written address delivered or in modern day communication, tweeted from a tweeter handle by heads of the government of countries are no cheap talk and usually provide useful means of gauging their thoughts and policy directions.
And more importantly, the forum at which the speech is delivered or the circumstances under which the tweet is made by such leaders goes a long way in providing the surrounding context thereby giving meaning to what was said.
For President Buhari to have publicly declared in the presence of both the president of the Nigerian Bar Association and the Chief Justice of Nigeria, the supremacy of national security and national interest over the Rule of Law, was a very deliberate act.
Remember the Nigerian Bar Association acts as the guardian of the Rule of Law while the Judiciary is given constitutional powers of interpreting the law in the event of a dispute between individuals or an individual and the State.
The ordinary dictionary definition of the Rule of Law means the principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced; the principle of government by law (Dictionary.com)
The Merriam-Webster.com, on the other hand, says the Rule of Law is a situation in which the laws of a country are obeyed by everyone and where the courts uphold the Rule of Law.
Finally, Wikipedia adds that the Rule of Law means the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws.
Whichever of these straight forward dictionary definitions of the Rule of Law you choose to adopt, you at least get the sense that in its most basic form the Rule of Law means a society governed by laws which are applicable and enforced generally.
So when a president who derives his executive authority from the same Constitution that preserves the rights of the citizens and grants the Judiciary the right to interpret these laws declares otherwise you have to take notice.
According to President Buhari, issues of national interest and national security have supremacy over the Rule of Law, meaning a determination that national security needs to be protected can override the Rule of Law.
What this deliberate faux pas means is that preserving national security and national interest now becomes the primary goal in such a society and when the Rule of Law demands the contrary, the Rule of Law can be suspended.
The Grundnorm denotes the basic norm, order, or rule that forms an underlying basis for a legal system. The theory is based on a need to find a point of origin for all law, on which basic law and the constitution can gain their legitimacy (Wikipedia)
To President Buhari, the Grundnorm or point of origin for all laws in Nigeria on which basic law and the 1999 Constitution can gain their legitimacy is what is done by the government in the interest of national security or national interest.
But the elephant in the room becomes who gets to determine what is in done in the interest of national security or for the national interest, and whoever undertakes this determination, gets to live and operate outside the Rule of Law.
Under the 1999 Constitution, the Judiciary is allocated the adjudicatory role of determining who is acting outside the Rule of Law and its decisions in this regard ensures any infraction or contravention is declared null and void.
But to President Buhari, even the adjudicatory role of the Judiciary has its limitations because he sees issues of national security and national interest as having supremacy over the Rule of Law.
What this does is to inject a massive dose of arbitrariness and uncertainty into the conduct of human affairs in Nigeria by creating a class of super Nigerians who can live and operate outside the dictates of the Rule of Law.
So we have the likes of the Finance Minister, Kemi Adeosun, who despite not having served during the National Youth Service Corps or worse possessing a forged NYSC Discharge Certificate, has not been charged to court or sacked from her job.
We have the situation involving the former National Security Adviser, Sambo Dasuki and Sheik El Zazaky, the national Shiite leader, who both continue to be held in detention despite numerous court orders granting them bail.
While these three examples may be rationalized as being done in the national interest or national security, the danger here is that the determination of what these terms amount to is being done subjectively and by those exercising such powers arbitrarily.
It also means that those exercising these arbitrary powers outside the Rule of Law have no check anymore as their excesses once classed as being done in the national interest or national security, are no longer subject to review by the Judiciary.
For President Buhari to have made this deliberate faux pas in the presence of the Chief Justice of the Federal Republic of Nigeria and to the body representing the interest of lawyers, the Nigerian Bar Association, is a throwing down of the gauntlet.
Those who will not obey a court order granting bail to a criminal suspect because it is not in the national interest may likely also not obey the unfavourable judgment of a court of law over an election dispute claiming the interest of national security.
Nigeria has entered uncharted waters.
*This article was written on August 28, 2018, months before the January 23, 2019 removal of CJN Walter Onnoghen
Kingsley Omose is a Lagos based legal practitioner and public policy analyst