Buhari’s interpretation of ‘rule of law’, what he failed to say?

[FILE] President Muhammadu Buhari. PHOTO/TWITTER/APCnigeria

The reported speech of President Buhari at the Nigerian Bar Association (NBA) conference in Abuja on 26 August 2018 attracted much furore in the Nigerian press.

It was reported that the President had suggested that in some circumstances the national interest should take primacy over the rule of law.

I found most of the commentaries in response to the president’s sequencing of national interest and the rule of law fascinating, a bit reminiscent of undergraduate tutorials in Jurisprudence.

If this article has been a bit delayed in joining the discussion on what the President said, it is because of a self-imposed restraint in commenting about his administration.

But having considered the subject of discussion too important to simply watch it being coloured by political prejudices and narrow interpretation, I feel I should comment; at least to attempt bringing an element of political neutrality into the discussion.

I am therefore neither to reinforce those anti-Buhari sentiments, nor to defend him.

If it were about defending him, I am sure that amongst his enthusiastic supporters he has eminently qualified people to provide the riposte to the biased views against his comment on the subject.

The purpose of this article is to examine the meaning of “the rule of law” and to consider the circumstances, if any, that may give rise to its derogation, or when it might be relegated below national interest as the President suggested.

In Nigeria, the inquisition into the meaning of the rule of law seem to have gained traction since the inception of the present President Buhari’s administration and his public policy declaration of war on corruption; and his method of fighting that debilitating national malady.

What really is ‘’the rule of law’’? I quote, “No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgement of his peers or by the law of the land’’, – Article 39, Magna Carta (1215).

Magna Carta is the earliest known established body of rights of citizens for protection against the State. The rule of law has its origin in Magna Carta.

It is not a set of platitudes, but one of the fundamental principles on which a civil government is based and the validity of laws are measured. Its overall aim is to protect citizens from arbitrary despotic powers.

In his article on 28 August 2018 in ThisDay, Dr. Reuben Abati provided Prof. Albert Venn Dicey notions of the rule of law as told in 1885.

This is perhaps, a good place to progress with the discussion on the rule of law.

As acknowledged Dicey is the most celebrated modern exponent of this very British export to liberal democracies.

I will provide the abridged version of his notions of the rule of law or as some call them, the working principles.

They are; firstly, that the individual must not be punished arbitrarily but by a breach of law which are known and defined by ordinary courts.

Secondly, that there must be the equality of all before the law. Every individual must have equal subjugation to the law. No one should be above the law.

Again, it is for the ordinary courts to ensure that this happens. Thirdly, fair access and evenly enforced law.

Fourthly, is the requirement of competent and independent lawyers and judges.

The rule of law is not subject to the whims and caprices of rulers. It is the duty of the courts to interpret the constitutional laws and not the rulers.

Dicey notions of the rule of have not been without its critics. The criticisms have often been by way of highlighting the exceptions to the rule.

Before considering some of those exceptions to the notions, it is worth restating the underlying values of the rule and their importance.

The underlying values of the rule of law are; due process, fair access to justice, consistency, transparency, honesty and equality of opportunities.

Discussions about the rule of law outside the context of its underlying values are facile.

The question that must be answered for any society that wishes to be taken seriously as operating under the rule of law is, how prevalent are these underlying values of the rule of law in that society?

We have noticed from the established notions of the rule of law that the judiciary (courts) and access to them are critical in ensuring that the rule of law is upheld.

As the president of the British Supreme Court, Lord Neuberger in his lecture on 15 October 2013, titled – Justice in Age of Austerity (perhaps should have been – Justice in a Quasi Democratic Nigeria), said; access to justice has a number of components.

These in brief are; a competent and impartial judiciary, accessible courts, properly administered courts, a competent and honest legal profession, an effective procedure for getting a case to the court, an effective legal profession, effective execution of judgement and affordable justice.

Sadly, in Nigeria no organ of the State has played a more sinister role in recent times in subverting the rule of law than the judiciary. Our judges have acquired notoriety for delivering perverse judgements.

Criminally minded lawyers in cahoots with bent judges routinely use spurious arguments to delay and frustrate hearings (often in matters of significant national interest).

Procedural impropriety is commonplace in the Nigerian judiciary.

This is why election riggers with their bulging wallets dare their opponents to challenge them in courts, in the safe knowledge that a favourable court verdict always await the highest bidders.

It is only in Nigeria that a judge would boldly grant a perpetual injunction against a legally established investigative body from interrogating a person for a possible gross economic crime.

The toleration of this absurdity has now become a hindrance to the work of the Economic and Financial Crimes Commission (EFCC).

It’s become a common practice for most politically exposed persons invited for questioning by the EFCC to apply to a court for an injunction in the hope of getting a compliant judge who would at a price grant them their request.

The sordid behaviours of our courts are most acute in disputed election cases. In some states their governorship elections have fallen out of sync.

The consequence of judges and their legal practitioners’ friends delaying the timely adjudication of elections disputes, have resulted in duly elected persons often assuming their offices later than expected.

The poor reputation of the judiciary is better gauged in the lower ranks of the society where the common people have lost any hope of getting justice in courts.

For the rule of law to have a meaning in any society its arbiters (courts/tribunals) must be of unimpeachable characters interested in dispensing substantive justice.

It is a fact that a society that operates under the rule of law ensures that it also serves the interest of justice.

If we engage in debates about the rule of rule ignoring its intrinsic values, we would not only hollow the word, but help to perpetuate the injustices in our society.

I think, this is what Dr Martin Luther King Jr., in his 1963 letter from Birmingham jail, Alabama, reminded his critics, that all advocates of the rule of law must equally sign-up to seeking justice for all.

Or, they are cruel if they insist on endless obedience to manifestly unjust laws.

For the benefit of doubt, it is conceivable that President Buhari at the NBA conference had in mind an exception to the rule of law by suggesting that in some circumstances the national interest should trump the rule of law.

Unfortunately, he failed to elaborate on the state of affairs he had in mind.

Could it have been the immunity provision in the Constitution, which exempts executives from being tried for acts committed while in office?

This provision is an exception that offends the rule of law’s notion of equality of all before the law.

Though, the immunity clause is accepted as necessary for a functioning democracy, maybe Buhari is concerned about its very liberal interpretation in Nigeria.

Its erroneous interpretation by our courts has been ceased upon by roguish governors as blank cheque to stripe bare their states’ treasuries.

This may be riling the President who wishes the courts like him to see corruption as an existential problem.

For the President, the protection of public assets should take precedence over the rule of law. If this was in his thought he has a point.

Immunity clause is about protecting those genuinely interested in democratic ideals and not about legitimising criminalities.

Rebellions, emergencies or breakdown in law and order have caused Nations to suspend habeas corpus, an integral part of the rule of law?

Habeas corpus is the common law right of individuals requiring that – no individual should be held against their will for an unknown amount of time without a reason behind their detention.

An exception to this principle was provided by the American Constitution.

Article 1, Section 9 states, “the privilege of the writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety requires it.”

The British Parliament suspended habeas corpus in 1794 to curb the activities of radicals wishing to emulate the French revolutionaries of 1789.

Since then there have been few instances when for public and national safety habeas corpus have been put under pressure, including the UK, Prevention of Terrorism Act – 2005.

It must be added, none of the decisions to restrict habeas corpus have ever been taken lightly in Western democracies.

Any government that dares it always meet serious opposition even with a credible claim of protecting national interest.

Therefore, if President Buhari wants to detain people and seek the courts’ support, he must make a strong patriotic case for it.

The definition of national interest, I am afraid, is not the exclusive preserve of a President. The p•eople must be invited to have a say in defining their national interest.

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