Rule of law, national interest and Buhari’s obloquy

Muhammadu Buhari, President of Nigeria

When President Muhammadu Buhari stirred the hornest’s nest the other day at the serene conveniences of the venue of the distinguished gathering of the nation’s legal minds, he probably did not realise that its reverberations will go beyond the shores of Nigeria and will go to dispel any lingering doubts regarding the popularly–held view of his thinly-veiled disdain for the rule of law. The accompanying incidents of the rule of law, viz: the independence of the judiciary, equality before the law, fair and faithful exercise of the power of government by public officers, division of power among the various arms of government, fairness of the adjudicative procedures provided by state, obedience of court orders or pronouncements, the inviolability of the bundle of human rights provisions contained in the Constitution and the law. The notion that no one is above the law and that all are subject to the same law administered in the same courts is explicitly expressed in Dr Thomas Fuller’s (1654-1734) aphorism of Be you (n)ever so high, the law is above you.”

In Buhari’s scale or order of precedence, the rule of law should be considered a wrung or two lower than “national interest.” According to the President, the rule of law ought to be subsumed under the general rubric of national interest and should be informed by the demands of what the government conceives or conjures as national interest. It should be made abundantly clear that the President’s prescription is dangerous and bespeaks or foreshadows his projected governance poise. Nigeria is a proud signatory to many protocols, conventions, treaties, etc. embodying the recognition of the primacy or centrality of the rule of law to order, good government and governance best practices. In the modern world, Professor Dicey’s formulation regarding the place of the rule of law has come to be the standard gauge of governance according to law and of our inter-personal socio-political and economic relations. Policy positions abjuring or demoting the rule of law from its premier position will appear not to be in tandem with our professed desire to build a society of rules that prevents the conscious or inadvertent encroachment by authorities or individuals on our liberties. It is an indication of the un-sophisticated state of society to lay emphasis on general declarations of rights. The enthronement of the rule of law as the bulwark against arbitrariness or whimsical conduct in public office will seem to be specific and to have covered the field.

The principles of impartial justice have passed beyond the stage of general declarations and have been worked out in detail in an articulated form of modern law. Since several rights of individuals are both inconsistent with one another and at times, with the rights of the general public, isolatedly-expressed declarations of rights have been found to be of little value. Happily, the requirement of a regime of governance according to the rule of law has become universally cognisable and acceptable. The mere fashioning of representative institutions may be a dangerous illusion giving a false sense of security against arbitrary rule. The independence of the judiciary from the government is every bit as fundamental to the maintenance of a free society enjoying liberty under the law as is representative government or a multiplicity of political parties or the correct formulation of rules governing the relations between government and individuals, or between one individual and another.

As a result of the probable manipulative purposes to which the idea of national interest may be put particularly under a government with devious or deceitful tendencies, the promotion of “national interest” over and above the considerations of respect for the rights, liberties and freedom of the individual is gravely troubling. The difficulty of properly ascertaining what constitutes national interest is another riddle. The undue promotion of a nebulous national interest perspective will tend to abridge the constitutional provision of freedom of the individual as well as the policy of public accountability. Buhari’s strange jurisprudence appears to be re-enacting or recalling his infamous Decree no. 4 of 1984. National interest has been claimed as reason for the continuing detention of persons that have been granted bail by courts of competent jurisdiction; as justification for raiding the homes of suspected adversaries of the government in commando-style dare-devilry and as the ground for acting extra-judicially as in the case of an invidious presidential or Excutive Order dispossessing a suspect regarding alleged ill-gotten wealth or property.

•To be continued tomorrow.

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