Position of law on national security

“The rule of law must be subject to the supremacy of the nation’s security and national interest.” The above statement was made by President Muhammadu Buhari while flagging off the recently concluded 2018 Annual General Conference of the Nigerian Bar Association in Abuja.

To justify his position, he stated further that “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.

Since the president made the statement, there have been mixed reactions and endless controversies. In truth, many of the commentaries are flavoured with political sentiments as the members of the opposition subjected the president to public attack by way of criticisms, whereas the pro-APC folks have thrown their weight behind the president; both sides justifying their positions with the aid of legal authorities.

Since sentiment is very dangerous in a legal commentary like this, the attempt to clarify the issues arising there from, without necessarily being partial or sentimental, remains sacrosanct.

President Buhari, is both right and wrong. His general stance on rule of law is very wrong. Rule of law is the political and constitutional principle that stipulates the supremacy of the law over the ruler, the ruled and all decisions taken in the country. In a constitutional democracy like we ‘practice’ in Nigeria, the place of rule of law is indispensable.

In the absence of rule of law, what obtains is lawlessness, arbitrariness, abuse of power and near-dictatorship. The place of rule of law is so potent that it is the bedrock upon which any democratic state is built.

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On Buhari’s second stance 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”, he is very correct. The President’s position here tallies with the firm decision of the Supreme Court in the controversial case of Dokubo-Asari v. Federal Republic of Nigeria (2007) 12 NWLR (pt. 1048).

Respectfully, the position of the court in the above case is not a verdict to subject rule of law on the altar of national security. In fact, in that case, the court was not referring to rule of law. Neither was it creating the impression that where there is a clash between rule of law and national interest or security, the latter should prevail.

Interpreting human rights to mean the same as rule of law is the point the president erred. And this erroneous position needs to be corrected not just for posterity but for the general interest of our democracy.

Festus Ogun,

festusogunlaw@gmail.com