By Ajibola Abayomi,
August 29, 2018.
Two prominent Nigeria lawyers Dr Mike Ozekhome and barrister Wale Ogunade, the National President of Voters Awareness have disagreed on the recent position of President Muhammadu Buhari that security and national interest should be elevated above the rule of law,
In separate statements received by the TheLead Online both lawyers argued different positions.
While Ogunade was in favour of the President, Ozekhome thought otherwise.
Below are the full text of statements by both lawyers.
By: DR MIKE A. A. OZEKHOME, SAN, OFR, FCIArb, Ph.D, LL.D. CONSTITUTIONAL LAWYER AND HUMAN RIGHT’S ACTIVIST
I humbly disagree with President Muhammadu Buhari on his assertion that security and national interest should be elevated above the rule of law. He said this in his opening remarks during the 2018 NBA Annual General Conference currently going on in Abuja. Mr. President, with all due respect, is definitely wrong on this score.
The declaration reminded me of the locust days of Decrees 2 and 4 which decimated citizens’ rights and ousted the courts’ jurisdiction to inquire into breach of such rights. I was shocked when I beheld lawyers, who ought to have protested loudly at this legal profanity, clapping, laughing and “applauding” him. It was, to me, a desecration of the dignity of man.
Are we cursed, or are we under a spell or state of mental stupor and intellectual inebriety? Mr. President was literally suspending the Nigerian Constitution, by his statement. And lawyers were cheering!
Rule of law is the very anvil and foundation on which any society is anchored. It precedes society itself and predominates over national interest. Indeed, modern society itself emerged from pristine stone age irrationality through the operation of rule of law.
It was the violation of the rule of law in the Garden of Eden by Adam and Eve, when they ate of the forbidden fruit, that so upset God that he drove them out of this Eldorado, after giving them a fair hearing. Without rule of law, there can be no nation state. Without nation state, there can be no national interest. Rule of law is father of national interest. No society can exist without the Rule of law. It is immutable, ineradicable, and unchangeable.
Those deceiving Mr. President and writing warped “legal opinions” and speeches for him on sensitive national matters that could snowball into serious cataclysmic miasma capable of consuming all of us, just to keep their cheap jobs and serve the insatiable bacchannalian appetites of their gods at the ephemeral corridors of power, must remember the immortal words of the Supreme Court in Military Governor of Lagos State v Odumegwu Ojukwu (2001) FWLR (part 50) 1779, 1802, coran erudite Obaseki, JSC:
“The Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. Nigeria, being one of the countries in the world which professes loudly to follow the rule of law, gives no room for the rule of self-help by force to operate”.
The Constitution of Nigeria is the supreme law, the font et origo, the grund norm (section 1(1) of the 1999 Constitution).The Rule of law doctrine theorises, amongst others, that: all people and institutions are subject to and accountable to law; the principle of government of law. The rule of law means that no person or government is above the law; that there is restriction of arbitrary exercise of power by subordinating it to well-defined and established laws. It means that no person, however highly placed, is above the law, whether law makers, law enforcement officials, judges or persons in government.
As propounded by Professor A. V. Dicey, the rule of law means equality of all persons before the law; observance of all laws by persons and authorities, irrespective of status. Of course, it encompasses obedience to orders made by competent courts of law.
The Rule of Law thus presupposes that once a court of law has made an order for the release of a citizen on bail, for example, the president, government and all authorities, must obey the order of court.
It is not for the government to pick and choose which order to obey and which not to obey, in the name of so called “national interest” or “national security”. This is because in arriving at a decision to release an individual on bail, the court must have first heard the facts and argument of the case of both the government and the citizen. It is tantamount to executive lawlessness and governmental capriciousness and whimsicality to sit on appeal over a court decision to determine what amounts to national interest.
Such a stance is a clear descent into anarchy and chaos. The Nigerian apex court in the case referred to by Mr. President made its pronounce based on the peculiar facts of the case before it, the case of Dokubo Asari vs FRN (2007) 12 NWLR (Pt. 1048) 331. It was not a blanket statement authorising governments to disobey clear court orders.
The case did not state that rule of law should be subordinated to national interest or security.Only recently, a federal court in Washington D.C descended on the Trump administration, when he reversed a deportation of an immigrant mother and daughter who were plaintiffs in an asylum case that was pending before the judge. The judge, in anger, did something unusual.
He ordered that the Trump administration turn around the plane which has already exited to Central America and bring them back to the U.S. He indeed threatened to cite for contempt the Attorney General, Secretary of the Department of Homeland Security (DHS), Director of US Citizenship and Immigration Service (USCIS) and Executive Director, Office of Immigration Review (OIR), accompanied by their lawyers. Although the plane was not able to turn around, but the Department of Homeland Security ensured that the mother and child were not disembarked in El-Salvador but were duly returned to the US as ordered by the court.
The rule of law was thus allowed to operate to affirm this ruling of Justice Emmet Sullivan, District Judge of the District of Colombia.
Even in India, Justice M. Venugopal, of the Madras High Court once declared that “right or wrong, obey court orders, especially when the order is not appealed against or stayed”.
Ogunade: Buhari Right On National Security And Interest And The Rule Of Law
President Muhammadu Buhari some few days ago while flagging off the 2018 Annual General Conference of the Nigeria Bar Association (NBA) in the nation’s capital city Abuja, was reported to have asserted the supremacy of national security and interest over and above the rule of law on the premise of the judgement of the Supreme Court which is a law.
He said: “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 the society”.
Ever since President Buhari made that statement, the public space has been awash with reactions and commentaries from Nigerians of all divide and profession including lawyers on the proprietary or otherwise of Mr. President statement. As expected, there are two opposing schools of thought on the matter with some justifying the president’s statement and the opposing views against it.
However, as active stakeholders in the political development of the country, it becomes imperative to examine the statement dispassionately and objectively for the collective good, while taking cognizance of the positions canvassed by the differing schools of thought as a guide for the discuss.
While it is a recognized fact that the rights of citizens are fundamental according to the constitution and international treaties of which Nigeria is a signatory, it’s also a fact that such rights are not absolute on their own, but with limitations. For example, the right to free speech is limited by the aftermath of libel or slander by whoever has been defamed.
Also, the fundamental right of a citizen to free movement can be limited in the public interest or national security , if his or her actions constitute a threat to societal order through the provocative act of assaulting public sensibilities by for example, exercising this right to movement stark naked. Again, the right of an individual or group to practice his/their religion is not an absolute right to permit the infringement on the rights of other citizens through making the public space inaccessible to them in the discharge of one’s religious rights which is tantamount to a threat to public or national interest.
Again, the fundamental right of association of citizens, of being members of an ethnic nationality or group does not confer on them, the absolute right to undermine national security by deriding and threatening the lives of other citizens who are not of same ethnic stock, this act if not curtailed is a threat to national security and interest.
Furthermore, under our laws, an individual right to property can be abridged in the public or national interest by the state, through acquisition and the right of the former owner can only be remedied by compensation in most cases only on the basis of the owner having legal documents to the property. This again is a reaffirmation of the fact that where national or public interest comes into contact with individual right, the latter becomes subsumed.
From the above analysis, one can see clearly that Mr. President’s statement takes it’s foundation from the fact that, the rule of law can only exist when the national interest and security is secured in a state of peace and tranquility, otherwise, it is a farce.
Buttressing it further, section 45 (1) of the 1999 constitution states explicitly that:
“Nothing in sections 37, 38, 39, 40 and 41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society –
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other person’s.
Therefore, instead of dissipating energy of whipping up emotions and sentiments in condemning Mr. president’s statement which is in alignment with provisions of our constitution, we will be more interested in extensive public engagement on this matter if and only if genuine and legitimate concerns are directly focused towards curtailing the abuse of power likely to arise from the power to determine what constitutes a threat to national security and national interest which is solely vested in the executive arm of government for now because like the French philosopher Jean Montesquieu posited, power corrupts and absolute power, corrupts absolutely.
Unless and until the law is rejigged through an amendment to take care of the concerns noted above, President Muhammadu Buhari statement at the AGC of the NBA is a restatement of the provisions of the laws of the Federal Republic of Nigeria which is indisputably right.
In the case of Oba Aladegbami v. Oba Fasanmade (1988) 3 NWLR (PT. 81) 131; (1988) 6SCNJ. 103.” Per I. F. OGBUAGU, J.S.C., it was held:
“It is now firmly settled that a court Order, must be obeyed even if such Order, is perverse, until such a time that the Order is set aside by a competent court.
In the case of LABOUR PARTY v. INEC (2009) LPELR-1732(SC), the apex court held that:
“It is now firmly settled that a Court Order must be obeyed even if such Order is perverse, until such a time that the Order is set aside by a competent Court. See the case of Oba Aladegbami v. Oba Fasanmade (1988) 3 NWLR (Pt. 81) 131; (1988) 6 SCNJ 103.”Per OGBUAGU, J.S.C (P. 25, paras. C-D).
Also, in the case of AG ANAMBRA STATE v. AG FRN & ORS (2005) LPELR-13(SC), the Supreme Court held that:
“The law in this instance is clear that it is settled that it is the unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged and this the moreso, where the person affected by the order believes it to be irregular or void. In so far as the order exists, it must be obeyed to the letter. See Military Governor of Lagos State v. Ojukwu & Anor. (1986) 1 NWLR (Pt. 18) 621 SC. An order of court, no matter the fundamental vice attaching thereto, remains legally binding and valid until set aside by due process of law.”Per TOBI, J.S.C (P. 54, paras. C-F).
Nations are built on precepts which clearly limit the scope of governmental involvement in individual’s life and existence. Any violation of an individual’s rights and civil liberties is tantamount to a clear subversion of the nation itself. This is because without liberty and fundamental rights, the nation ceases to exist as a coherent entity.
“National Security” or “National Interest” is a veritable smokescreen under which a tyrannical and lawless government hides to promote its own dubious agenda against the hapless masses, thus jettisoning all known provisions of the Constitution and the Bill of Rights. I hereby reject such illegal and unconstitutional theory.