The Buhari position on the rule of law

IT was quite absurd that President Muhammadu Buhari chose the podium of the Nigerian Bar Association (NBA) during its annual conference to launch a newfangled perception of the rule of law whereby it is to be made  subservient to national interest and security, last week. He said: “The rule of law must be subject to the supremacy of the nation’s security and national interests. Our apex court has had cause to adopt a position in this regard and it is a matter of judicial recognition that where national security and public interests are threatened or there is a likelihood of being threatened, the individual rights of those allegedly responsible must take a second place, in favour of the greater good of society.”

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But this is categorically not the case. In order for the society not to regress into the Hobbesian state of nature where life is nasty, brutish and short, the rule of law actually becomes a fundamental imperative through the principle of separation of powers in defining national security and public interests. It is the rule of law that gives life and meaning to the nebulous concepts of national security and interests, not any individual. As a matter of fact, it is the rule of law that gives life to the office of the president. President Buhari’s position on the rule of law therefore betrays either a scant understanding of the profound fundamentality of the concept or a mischievous interpretation of the Supreme Court’s ruling, or both.

It is impossible to conceive of any liveable human society, much less a democracy, outside the rule of law, except a totalitarian society presided over by a despot. To subject the rule of law to the nebulous concepts of national security and public interest is to stand logic on its head because the definition of national security and public interests must of necessity be at the instance of the three arms of government. Any other definition outside the notice of these arms is a prelude to dictatorship and must be resisted. It was actually an anticipation of fascist proclivities like that displayed last week that spurred theorists of the modern state to develop the idea of separation of powers and the institutionalisation of checks and balances. They are to prevent democracies from morphing into fascism in the hands of power-hungry individuals with despotic inclinations.

Pray, what kind of national security or public interest cannot be made known to the legislature and the judiciary? Surely, nobody has a greater stake in the country or its governance than others, and nobody is omniscient to the extent of retaining the exclusive prerogative to define any issue of national concern. Frankly, President Buhari and his cabinet members do not have a greater stake in Nigeria than the National Assembly and the courts. If they thought they did, it is time to put paid to such illusions of grandeur. National security and public interest are issues that should involve all the arms of the government and the tendency for any form of dictatorship to sprout must be comprehensively put down. The idea of an individual defining national security and public interest is absolutely strange to the theory of the modern state. This is one reason for the poor performance of democracy in Africa, as the people entrusted with power often arrogate to themselves what is completely beyond their mandates.

It is apposite to remind President Buhari how he was himself also once labelled as a threat to  national security during a military interregnum that suspended constitutional rule and had to be put away for a while by his former ally, the self-styled President Ibrahim Babangida. But then, that was not a democratic dispensation and it is certainly ill-advised and atavistic to re-enact the scenario in 2018. If, as is being speculated in certain quarters, this curious doctrine of making the rule of subservient to national security and public interest by quoting a Supreme Court judgment out of context is a ploy to deploy national institutions in establishing a revanchist policy to settle personal scores, would that not in itself be a threat to national security?

To put it mildly, we are disconcerted by this development which could endanger citizens’ liberty and tarnish the ideals of democratic rule. The fact that it is reminiscent of the dark days of military rule is unsavoury, not to say disgusting. Before becoming a civilian president, Buhari said he had turned over a new leaf. He should demonstrate that by not turning national institutions into weapons for personal vendetta. That is the stuff that democrats and statesmen are made of.