President Muhammadu Buhari ruffled some feathers recently while addressing the 2018 Annual General Conference of the Nigerian Bar Association, NBA, in Abuja. On that occasion, he was reported to have said that the rule of law must be subject to the supremacy of the nation’s security and national interest. To stress this point, he quoted a ruling of the Supreme Court and averred that the apex court had 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 the society.
If the President’s intention was to stir a debate on the subject of which comes first between personal liberty and national security interest, he succeeded because the controversy arising from that assertion is yet to die down. Those in disagreement with the President allude to his military background which they perceive as the influencing factor in his disposition on the matter. Most of them are apprehensive of what could possibly happen when the rule of law takes a back seat especially if national security becomes ill-defined. Such claims, it is feared, may acquire the potential of becoming limitless, amorphous and can pander to individual discretion with all the corruptive influence it is capable of inducing. They also insisted that, interestingly, the environment in which the president is presently operating is overarchingly democratic and without any pretensions to the contrary. It is the rule of law that makes all the difference between democracy and dictatorship just as they stressed that the rule of law is an all-encompassing concept, which is the bedrock of law and order in a society.
The argument by those contradicting what the President was reported to have said also exposed the inexorable fact that the key tenet of any democracy is the rule of law which is the ultimate and far more supreme and superior provision as stipulated in the constitution as the ground rule for good governance. They went further to posit that the global democratic space accepts that the principle of the rule of law defines and upholds what national security is as well as what is of national interest. Even within the military, there is what is called the rules of engagement, violation of which, even in a war situation, is punishable. The proclamation that in war and in peace the language of the law remains the same, has a universal applicability. To that extent, therefore, the relevance of the rule of law which is understood to be the bulwark of civil society can be gleaned from the statement, ‘give me liberty or give me death’.
It is our conjecture that President Buhari had in mind to say that individual liberties and other fundamental rights can, in given circumstances, be subject to national security interest. For instance, in a state of emergency which derives its legitimacy, anyway, from the laws of the land, rights and privileges of the individual can be attenuated if they become inconsistent with national interest and to the extent that it is done in defence of overriding public interest.
This newspaper subscribes to the view that civil liberties of individuals can only be limited when they clash with issues relating to either national security or interest that are also of overriding public good. We note, however, that in a democracy, such interests are not necessarily as defined by the executive arm of government. The legislative arm and the Judiciary have key roles to play in highlighting what those interests are. In most cases, only the interpretative function of the judiciary can make such issues to accord with the rule of law and other fundamental principles of state policy.
It is also possible that the President, in our opinion, is trying to rationalise the deprivation certain persons are suffering contrary to court pronouncements. If that is the case, we think that an exhaustion of the court processes through judicial appeals up to the highest court in the land can go a long way in resolving any issue, no matter how intricate, that are inimical to national security and help ensure that individual liberties and fundamental rights are not inadvertently trampled upon.
We are by no means denying the President the power to govern which includes bringing to book politically incorrect characters and others who may find themselves on the wrong side of the law. The constitution is clear on his powers and duties in pursuit of good governance. The same constitution is unequivocal in its provisions as they relate to what citizens are to expect from the laws of the land and those put in charge of making, interpreting and implementing those laws for the overall good of the society.