In this report, AHURAKA YUSUF ISAH writes that President Muhammadu Buhari’s proposition that national security and interest take precedence over rule of law or citizen’s right is in line with the nation’s extant laws, Supreme Court judgement and world order, but that outrage against his statement has to do with his records as a former military head of state.
On Sunday August 26, 2018 made many Nigerians to abandon their church services and resting places when news breaking media quoted President Muhammadu Buhari as saying that the principle of rule of law must be subjected to the supremacy of the nation’s security and national interest.
Buhari, whose Vice President is a Law professor and senior advocate made the disclosure in the address he delivered at the opening ceremony of the 2018 Nigerian Bar Association (NBA) Annual General Conference in Abuja.
The president, whose democratic identification is still a subject of suspicion, not only because he once seized power from a democratic government but he ruled with strict policies and laws, made many Nigerians to develop instant pimples when he said where national security and public interest were being threatened, the individual rights of those allegedly responsible must take the second place.
Besides, he never sounded like a layman or person with limited knowledge of law when he said the rule of law must be subject to the supremacy of the nation’s security and national interest.
His words: “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.”
Of course, the former Chief Justice of Nigeria, Justice Mahmud Mohammed had held in Dokubo-Asari Vs Federal Republic of Nigeria (2007) ALL FWLR (Pt 375) 588, that “Where national security is threatened or there is real likelihood of its being threatened, human rights or individual rights of those responsible take second place. Human rights or individual rights must be suspended until national security can be protected or taken care of”.
He added that “The corporate existence of Nigeria as united, harmonious, indivisible and indissoluble sovereign nation is certainly greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual liberty or right may not even exist’’.
Several opinion leaders, legal practitioners and civil society organizations have however opposed the president, saying he misfired, and that the nation is in a democracy under which the three concepts must be balanced and not conflict or juggle with one another. National security, national interest and rule of law, they said are mutually compatible and not otherwise.
While Ebun-olu Adegboruwa said Buhari’s declaration was a great setback for Nigeria’s democracy and national development; just as he reminded him that national security neither definition nor limit. He stated that it is amorphous and pander to individual discretion. He stated that it is the rule of the Executive arm of government alone, being the one responsible for policy implementation and the determination of security imperatives.
On its part, Access to Justice expressed its displeasure over Buhari’s proclamation, saying he missed the mark when he gave the impression that national security and rule of law were competing or exclusive notions, or that a state must prioritise one over the other.
Also weighing in, the Citizens Advocacy for Social & Economic Rights (CASER) expressed disappointment at the president’s speech, saying even during a war, there was still respect for the rule of law.
This is just as Femi Falana (SAN) disagreed with Buhari, saying national security is subject to the rule of law. Falana, in his presentation at the NBA conference said Nigeria’s political history has subjugated the rule of law at the detriment of protecting the rights of Nigerians.
In a statement Thursday, Nobel laureate, Wole Soyinka mocked the president by saying Buhari had obviously given a deep thought to his travails under a military dictatorship and concluded that his incarceration at that time was also in “national interest.”
Buhari was imprisoned for years by the then General Ibrahim Babangida (rtd.) regime after his military dictatorship was overthrown in 1985.
“At his first coming, it was ‘I intend to tamper with Freedom of the Press,’ and Buhari did proceed to suit action to the words, sending two journalists – Irabor and Thompson – to prison as a reward for their professional integrity.
“Now, a vague, vaporous, but commodious concept dubbed “national interest” is being trotted out as an alibi for flouting the decisions of the Nigerian judiciary. President Buhari has obviously given deep thought to his travails under a military dictatorship, and concluded that his incarceration was also in the ‘national interest.’”
The communique of the NBA issued at conclusion of its 2018 Annual General Conference held that the Bar completely rejects the presidential statement subordinating the rule of law to National Security, restating that the rule of law is central to a democracy and that any national security concerns by the government must be managed within the perimeters and parameters of the rule of law.
Accordingly, it noted that: “As a corollary, NBA frowns at the present growing trend whereby government decides on which court orders to obey. The court has exclusive duty under a democratic dispensation to interpret the Constitution and other laws, and government and the citizenry must comply with court orders at all times until set aside.
“NBA emphatically objects to the issuance of Executive Orders in respect to matters already in court and observes that any such order is a breach of the principle of separation of powers.
“NBA emphatically Counsels that Executive Orders be issued for good governance and to manage operations of government, and not to encroach or usurp upon the constitutional powers of other arms of government, lest Executive Orders become attempts at decree-making’’.
However, by Friday August 31, 2018, Buhari retreated, even though he might not necessarily have surrendered, at least to appease his visitor, German Chancellor, Angel Merkel, assuring that notwithstanding his statement, his administration believes in the sanctity of the rule of law in governing the country.
According to Buhari’s spokesperson, Garba Shehu, the President said this while assuring German Chancellor, Angel Merkel, who visited the country on Friday that all agreements between the two nations will be fully respected.
“In his remarks during a bilateral meeting, the president said unity and harmony in every society can only be preserved by observing the rule of law, and ensuring that agreements reached in good faith are followed through to the mutual benefit of countries.
“President Buhari told Chancellor Merkel and members of her delegation that the rule of law embodies all the rightful mechanisms for conflict resolution, both within the country, and in dealing with all foreign partners, assuring that his administration remains focused on delivering a peaceful, economically viable and politically stable polity to all Nigerians,” Shehu said.
Reflection on the Past
The tumultuous adverse reactions from human right activists, lawyers, journalists and civil societies which trailed Buhari’s statement, ostensibly made following travails of insecurity and corruption ravaging the nation were equally triggered by records of his tenure as military head of state, even though he is now said to be a “born again’’ democrat.
Buhari’s barely two years military rule from 31st December 1983 to 27 August 1985, justified the military’s seizure of power by castigating the then civilian government as “hopelessly corrupt’’, arguing that “a flawed democracy was worse than no democracy at all”.
Buhari, who reduced the number of ministries to 18, retired 17 permanent secretaries and some senior police and naval officers and as well promulgated new laws to achieve his aim. These laws included the Robbery and Firearms (Special Provisions) Decree for the prosecution of armed robbery cases, the State Security (Detention of Person) Decree which gave powers to the military to detain individuals suspected of jeopardizing state security or causing economic adversity. Other decrees included the Civil Service Commission and Public Offenders Decree which constituted the legal and administrative basis to conduct a purge in the civil service.
He also mounted an offensive against entrenched interests. In 20 months as Military Head of State, about 500 politicians, officials and businessmen were jailed for corruption during his stewardship. Detainees were released after releasing sums to the government and agreeing to meet certain conditions.
The late Umaru Dikko affair was another defining moment in Buhari’s military government. Umaru Dikko, a Minister of Transportation under Shagari who fled the country shortly after the coup, was accused of embezzling $1 billion in oil profits. With the help of an alleged former Mossad agent, the NSO traced him to London, where operatives from Nigeria and Israel drugged and kidnapped him. They placed him in a plastic bag, which was subsequently hidden inside a crate labelled as “Diplomatic Baggage”.
The purpose of this secret operation was to ship Dikko off to Nigeria on an empty Nigerian Airways Boeing 707, to stand trial for embezzlement. The plot was foiled by British airport officers.
Buhari’s regime enacted three decrees to investigate corruption and control foreign exchange. The Banking (Freezing of Accounts) Decree of 1984, allotted to the then Federal Military Government the power to freeze bank accounts of persons suspected to have committed fraud. The Recovery of Public Property (Special Military Tribunals) Decree permitted the government to investigate the assets of public officials linked with corruption and constitute a military tribunal to try such persons. The Exchange Control (Anti-Sabotage) Decree stated penalties for violators of foreign exchange laws.
In 1984, Buhari passed Decree Number 4, the Protection Against False Accusations Decree, considered by scholars as the most repressive press law ever enacted in Nigeria. Section 1 of the law provided that “Any person who publishes in any form, whether written or otherwise, any message, rumour, report or statement […] 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 offense under this Decree”.
The law further stated that offending journalists and publishers would be tried by an open military tribunal, whose ruling would be final and unappealable in any court and those found guilty would be eligible for a fine not less than 10,000 naira and a jail sentence of up to two years. Tunde Thompson and Nduka Irabor, then of The Guardian newspaper were among the journalists who were tried under the decree.
Decree 20 on illegal ship bunkering and drug trafficking was another example of Buhari’s tough approach to crime. Section 3 (2) (K) provided that “any person who, without lawful authority deals in, sells, smokes or inhales the drug known as cocaine or other similar drugs, shall be guilty under section 6 (3) (K) of an offence and liable on conviction to suffer death sentence by firing squad.”
Bernard Ogedengbe (29), Bartholomew Owoh (26) and Lawal Ojuolape (30) were publicly executed under this decree. In another prominent case of April 1985, six Nigerians were condemned to death under the same decree: Sidikatu Tairi, Sola Oguntayo, Oladele Omosebi, Lasunkanmi Awolola, Gladys Iyamah and Jimi Adebayo. Gladys Iyamah was however the first woman in Nigeria to be sentenced to death.
In 1985, prompted by economic uncertainties and a rising crime rate, the government of Buhari opened the borders (closed since April 1984) with Benin, Niger, Chad and Cameroon to speed up the expulsion of 700,000 illegal foreigners and illegal migrant workers. This later led to a famine in the east of Niger that was named “El Buhari”.
Concerns for War Against Indiscipline (WAI) Brigades was beginning of wisdom against indiscriminate defecation, urinations in the public squares, use of pedestal bridges, queuing culture in public places like banks, respect for the flag and National Anthem. There was also an unexpected creation of new notes to halt currency smuggling and there was substantial refinancing of trade debt arrears
Buhari’s military regime also managed to reduce inflation, rejected all International Monetary Fund conditionality, such as the devaluing the naira, sharply reduced unnecessary imports, minimized oil bunkering and when bunkered oil was seized, he used it to get relevant commodities, equipment and machinery using the counter trade policy.
National Security Policy
There are several nuanced issues involved in Buhari’s remarks which are lost by the simplistic condemnation of what he said and even more unrealistic defence of his posture.
National security refers to the security of a nation state, including its citizens, economy, and institutions, and is regarded as a duty of government. Originally conceived as protection against military attack, national security is now widely understood to include non-military dimensions, including economic security, energy security, environmental security, food security, cyber security etc. Similarly, national security risks include, in addition to the actions of other nation states, action by violent non-state actors, narcotic cartels, and multinational corporations, and also the effects of natural disasters. Governments rely on a range of measures, including political, economic, and military power, as well as diplomacy to enforce national security.
Every nation has what is called, ‘National Security Policy’. For a country to design its national security policy and its human rights mechanisms as part of a perpetual and sometimes impossible balancing act is much more problematic between national security and human rights.
Nigeria’s national security policy was contrived into National Security Agencies Laws (Decree), enacted on June 5, 1986 and transmitted into National Security Agencies Act of the National Assembly[1986 No. 19.) Thus, it reads, “An Act to disband the Nigerian Security Organisation and to create three security agencies, charging each with the conduct of the relevant aspect of the national security and other related matters.
“There shall, for the effective conduct of national security, be established the following National Security Agencies: (a) the Defence Intelligence Agency (b) the National Intelligence Agency, and (c) the State Security Service.
According to the Act, general duties of the National Security Agencies directs that the Defence Intelligence Agency shall be charged with responsibility for the prevention and detection of crime of a military nature against the security of Nigeria; the protection and preservation of all military classified matters concerning the security of Nigeria, both within and outside Nigeria; such other responsibilities affecting defence intelligence of a military nature, both within and outside Nigeria, as the President, or the Chief of Defence Staff, as the case may be, may deem necessary’’.
Accordingly, the National Intelligence Agency shall be charged with responsibility for the general maintenance of the security of Nigeria outside Nigeria, concerning matters that are not related to military issues; while the State Security Service shall be charged with responsibility for the prevention and detection within Nigeria of any crime against the internal security of Nigeria. The state security service is also to protect and preserve all non-military classified matters concerning the internal security of Nigeria; and such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, as the case may be, may deem necessary.
“The provisions of subsections (I), (2) and (3) of this section shall have effect notwithstanding the provisions of any other law to the contrary, or any matter therein mentioned’’. Of course, this is what gives authority to President Buhari’s supremacy theory of the national security and national interest holding precedence over rule of law”.
Section 2 (5) of the Act states also that,’’ in this section, “classified matter” has the same meaning assigned thereto in section 9 of the Official Secrets Act. And Section 9 which is an ‘’Interpretation’’, “classified matter” means any information or thing which, under any system of security classification, from time to time, in use by or by any branch of the government, is not to be disclosed to the public and of which the disclosure to the public would be prejudicial to the security of Nigeria.
This law which enacted by colonialist in 1926 was re-established in Nigeria in 1962 and still in force till date. Itdeals with nuances of Journalism in the country which nobody has risen to condemn, proposed legislation to repeal.
Section 1 of Official Secrets Act, (Cap 03, Law of the Federation of Nigeria 2004), makes it an offence for any person to transmit, obtains, reproduces or retains any classified matter.
The press and government in Nigeria are like two strange bed fellows. Other anti-press laws which were enacted by the colonial masters and still in use include the Newspaper Ordinance which was re-baptised in 1964, the Official Secrets Acts (1962), Defamation Act (1961) the Seditions Publication Act (1961). A host of draconian decrees under the various military government such as Decrees 2 (State Security), Decree 4 and decree 11 (Protection Against False Accusation), decree 12 (Prohibition of circulation) just to mention a few.
Other laws that provide restrictions for the release of public information include the Public Complaints Commission Act, Evidence Act, Criminal Code and Statistics Act. Of course, with these kinds of Acts still in existence, accountability and transparency may never be attained in the country.
In any case, Buhari was not wrong when he asserted that individual rights could be abridged in defence of either national interest or national security. Across the world, this has been the trend since the emergence of cybercrimes and terrorism altered the traditional balance between civil liberties and the tools used in maintaining the imperatives of national security/national interest.
Developed World Security Policy
It is noteworthy that Nigeria is not in isolation, other so-called democratic countries are more involved in right abuses in the guise of national security and interest.
This section of the world may not be paying heed to the evil of the VPN services located in 14 Eyes countries and territories. A virtual private network (VPN) extends a private network across a public network, and enables users to send and receive data across shared or public networks as if their computing devices were directly connected to the private network. Applications running across a VPN may therefore benefit from the functionality, security, and management of the private network.
The 14 Eyes countries and territories, segregated into two are Five Eyes (United States, United Kingdom, Australia, Canada, and New Zealand); Nine Eyes (Denmark, France, Netherlands, Norway, Germany, Belgium, Italy, Sweden, and Spain).
In short, these are just international surveillance alliances representing various countries around the world. These surveillance alliances work together to collect and share mass surveillance data. In other words, they are essentially acting as one global-surveillance entity to spy on you and record your activities. It is no surprise that some of the Five Eyes countries listed above are also the worst abusers of online privacy.
Even where the exercise of national security is subject to good governance and the rule of law, a risk remains that the term national security may be become a pretext for suppressing unfavorable political and social views. In the US, for example, the controversial USA Patriot Act of 2001, and the revelation by Edward Snowden in 2013 that the National Security Agency harvests the personal data of the general public, brought these issues to wide public attention.
Among the questions raised are whether and how national security considerations at times of war should lead to the suppression of individual rights and freedoms, and whether such restrictions are necessary when a state is not at war.