President Muhammadu Buhari
President Muhammadu Buhari has been getting raps for asserting that
his government would continue to place the nation’s security and
national interests above the rule of law.
He reportedly argued that the individual rights of suspected
offenders would not be spared when national and public interests are
threatened. According to him, “Rule of Law must be subject to the supremacy of the nation’s security and national interest”.
Buhari claimed that his government took the position on the basis of
subsisting decisions of the Supreme Court. He made the declaration while
flagging off the 2018 Annual General Conference of the Nigerian Bar
Association in Abuja on August 26 2018.
There are several nuanced issues involved in Buhari’s remarks which
are lost by the simplistic condemnation of what he said and the even
more unrealistic defence of his posture:
One, Buhari was not wrong when he asserted that individual rights
could be abridged in defence of either national interest or national
security. Across the world this has been the trend since the emergence
of cyber crimes and terrorism altered the traditional balance between
civil liberties and the tools used in maintaining the imperatives of
national security/national interest. In the Western world, libertarians
– streams of thoughts which support the supremacy of individual rights
and personal freedoms over any kind of authority – have been bemoaning
the rapid erosion of civil liberties in the name of fighting terrorism
or perceived new security threats.
Buhari confused issues by framing it as a tension between the ‘rule
of law’ and ‘national interest’/ ‘national security’ rather than as a
tension between national security/national interest and civil rights.
They are not quite the same. This is because even when a government
decides to abridge people’s civil liberties – freedom of religion,
freedom of speech, freedom of the press, freedom of assembly etc, such
abridgements are legitimated by extant laws. For instance since the
terrorist attack in the USA on September 11, 2001, the U.S. government
has sought to enhance security by recalibrating the balance between
security and civil liberties.
A good example here is the USA PATRIOT Ac (October 26 2001) which
gives investigators (such as the FBI) the authority to use new
surveillance techniques such as Internet and phone surveillance and the
power to conduct ‘sneak and peek’ searches in which officials can
search a suspect’s property, informing the individual whose property was
searched only after the investigation. There are also ‘obnoxious’
investigative techniques like ‘mosque counting’ where the FBI uses the
number of mosques in an area to help determine how many search warrants
and wiretaps should be issued.
Abridgment of civil rights as in the above is usually legitimated
by an extant law which civil libertarians criticize. Such abridgments
may be obnoxious but not illegal. In essence, there is and should be no
tension between the law and national security. Libertarians quarrel with
the nature of the law so enacted to legitimate the abridgment of civil
liberties.
Two, when Buhari made the statement about subordinating the law to
what he called ‘national interest’ and ‘national security’ he forgot
that there is a deep-rooted distrust of governments across the world. By
talking of subordinating the law to national security, he gave the
impression of arbitrary rule, which is quite dangerous – and probably
not what he meant. All over the world there is an intense suspicion of
government, which is why Western countries do not joke with their
democracies because they believe their personal liberties are bulwarks
against any arbitrariness by the government.
Apart from the natural distrust of government, Buhari comes with a
huge baggage: his military rule was the most draconian in the country’s
political history – apart from Abacha’s. Though Buhari claims he is now a
born again democrat, many remain suspicious of his democratic
credentials while some see authoritarian impulses and nostalgia for his
dictatorial past in most of his political actions. In this sense,
Buhari’s declaration that he would trample on civil liberties in
protection of national interest or national security at the NBA
Conference, however well-intentioned, is undermined by his own personal
antecedents and also by suspicions that he was merely trying to justify
the continued detention of Sambo Dasuki and others – despite several
court rulings granting them bail. This is may therefore be one of the
instances when many people will argue that the messenger is the message.
Three, when a leader with questionable democratic credentials makes
remarks such as the above and employed three very vague concepts, he
opens his discourse to different deconstructions. Buhari employed three
key concepts that are emotionally appealing but very elastic in their
meanings. The first is ‘rule of law’. What does it really mean? Simply
put the rule of law is the authority and influence of law in the society
especially when viewed as a constraint on individual and institutional
behaviour. Though the use of the phrase had its origin in the 16th
century Britain, the Scottish theologian Samuel Rutherford used it in
the 17th century when he was arguing against the divine rights of kings.
But does the existence of a law tell us anything about the fairness and
justness of that law? For instance is a law that prevents people from
hawking on the streets fair because it applies equally to rich and poor
or does it embody inherent class discrimination?
Another vague concept used by Buhari was ‘National Interest’, a key
concept in International Relations, which carries a meaning according
to the context in which it is used. Often used to mean the totality of a
country’s goals and ambitions, it is a very elastic concept that can be
used to justify any action from war of aggression to neutrality and
pacifism. It is instructive that Hitler justified expansionist policies
in the name of “German national interests.”In the same vein, during the
Russian intervention in Afghanistan (1979-89) the same nebulous
‘national interest’ was used to justify it.
Another vague concept used by Buhari was ‘national security’.
Traditionally ‘national security’ is used to refer to the protection of
the state from military attack but security is now widely understood to
include non-military dimensions such as food security, economic
security, energy security, environmental security etc. In fact, the
United Nations Development Programme’s 1994 Human Development Report
developed a new paradigm for understanding national security, in which
the individual rather than the state is made the proper referent for
security. But critics have also argued that security seen in this way
has become so elastic that anything that threatens a person’s happiness
such as inability to get a wife or husband could become a security
issue.
So when Buhari talked about the rule of law being trampled for national security, what precisely did he have in mind?
Four, society is dynamic and the tools used in managing it must
constantly strive to meet with the changing challenges. This obviously
means that new security threats call for new tools for dealing with
them, and the new tools may affect the traditional balance between civil
liberties and the imperatives of national interest and national
security. This is why many libertarians have shifted grounds from
oppositions to some ‘draconian’ laws that abridge civil rights to
conversations on how they can be implemented without substantially
threatening people’s fundamental rights.
Some of the measures often proposed as a way of resolving the
tension include an insistence that investigation and prosecution of
suspects must be conducted in ways that are consistent with the
fundamental principles of the country’s justice system (i.e. rule of
law), respect to due process and right to counsel and an insistence that
the political system must remain open and free with citizens able to
challenge any trampling of their rights in law courts.
Other proposals include that when a government seeks to derogate
from existing civil rights, at a minimum, it must convince the general
public of the need for such measures. For instance, it is not enough to
tell us that Dasuki was denied bail on national security, it behoves on
the government to justify how that disregard of the rule of law services
national security.
Many libertarians also propose maintaining longstanding commitment
to the constitutional principle of due process for citizens and
non-citizens alike through such measures as opposing indefinite
detention of suspects, opposing government directives permitting
surveillance of attorney-client communications without demonstration of
probable cause to believe that such communications will be used to
perpetrate criminal activity and opposing administrative rulings that
designate citizens as ‘enemy combatants’ and thus not entitled to the
full range of due process rights.
By Jideoffor Adibe