Why Buhari is right, wrong on rule of law

It would be comical – if not scary – to think that, barely 20 years after Nigeria transited from military rule, our attempt at practicing the tenets of constitutional liberal democracy seems to be unravelling. Democracies ought to grow stronger as time passes. However, in Nigeria, it seems we have forgotten the foundational and settled concepts of liberal democracy. Ideas such as the sovereignty of the people, fundamental rights, independence of the judiciary, freedom of the press, and the separation of powers now mean little to us. It seems we only just want to vote every four years – and no more.

But, in the last three years, no principle of liberal democracy has riled up the current administration as much as the rule of law. This phrase triggers officials of the Buhari government into spasms of apoplexy, quickly stripping our democratic façade and exposing our political system for the anocracy that it really is.

The most recent rage against the rule of law came over the weekend when President Buhari remarked in a speech before the Nigerian Bar Association that “rule of Law must be subject to the supremacy of the nation’s security and national interest”.

I am not quite sure whether or not the president is really ignorant or just being disingenuous. The rule of law means that government powers are defined and limited by the constitutional laws of the state. Since the constitution also describes and defines the national interest, then the national interest is necessarily protected and promoted by observing the constitution – that is, the rule of law. And so it is that in a constitutional democracy, the national interest is inextricably linked to the rule of law whereas in a dictatorship, the national interest is linked to the opinion of the ruler – the rule of man. When it comes to ruling, there are basically two options: the rule of law or the rule of man, and President Buhari is rooting for the latter.

Naturally, many people – both from civil society and opposition parties – have kicked against the idea that the national interest can exist outside the ultimate law, the constitution. This protest is sensible and welcome, especially in the absence of good legal education from the lawyers surrounding the president. If Professor Itse Sagay – formerly respected constitutional lawyer and now model henchman for autocratic imposition – is any indicator, then, bad legal education is all the president is getting. It is a sobering example of Nigeria’s dysfunctional state that, despite the active involvement of high profile lawyers in this administration, the rule of law has nosedived more than at anytime else since Obasanjo vacated office in 2007.

However, an even more sobering consideration is that there may be some truth in president Buhari’s words – although perhaps not in the way he meant it. When we critically think of our political system, it is clear that, although our form and processes mimic those of a constitutional liberal democracy, the substance of our reality is something far different and far worse than an actual democracy.

Certainly, Nigeria was not founded on democratic principles. This country existed long before we attempted to practice liberal democracy. It is hard to say democracy is what binds us. Instead, Nigeria runs on an inter-ethnic patronage political system indirectly governed by an unchanging political elite (with the support of the military) and serviced by the aspiring middle class. The bulk of the population, over 100 million Nigerians, merely exist on the periphery of the state: involved only as election and census data and having no participation in policy direction or formation.

Within this political system, economic class and proximity to power enables legal rights and protections. The elite and middle classes often get the benefit of the legal system: enjoying access to quality legal representation, and able to negotiate with police and prosecutors, or even frustrate the court process. In this same system, thousands of ordinary Nigerians are arbitrarily harassed, arrested, and locked away without trial or legal protection. It is clear to the majority of our population that, as far as they are concerned, the rule of law is a sham. The rest of us must not pretend that they are wrong.

But President Buhari’s solution only worsens the situation.

The president does not seek to empower the underprivileged millions by ensuring substantive equality across board through radical legal and institutional reforms. Instead, he has simply capitalised on popular dissatisfaction and sought to empower himself above the elite by officially scrapping our pretence at the rule of law.

And now, we reach the fundamental question that will shape the next generation: do we want more equality for Nigerians against the political elite or do we want more power for the president against the elite? The clock is ticking loudly on Nigeria’s future.