A nation is a creation of law and it must be governed by law. Its interests must, therefore, be subordinated to law and be seen gazing through the law. National interest that is placed above the law is hogwash; it has no foundation and it can only lead to acrimony, conflict, violence and more violence, and disaster. The Rule of Law is the first evidence of civilisation, for it curbs human tendencies and peccadilloes and separates man from animal and states from a jungle and the land of chaos. It confines a society to a moral compass. It gives a citizen the sense of being. With the Rule of Law behind him a citizen feels on top of the mountain, unreachable and unapproachable. He is free from harassment, intimidation and abuse of the man of power. He is free from the Rule of Man and being a victim of arbitrariness. It subordinates the Rule of Might under the Law. In a clash between the Rule of Might and the Rule of Law it is the Rule of Might that is invariably worsted. The Rule of Law protects every person’s claim to dignity. This Rule of Law is under the protectorate of the officers in the Temple of Justice. There is more to say about the primacy of the Rule of Law.
The attempt by President Buhari the other day to subjugate the Rule of Law under the bogey of National Security and National Interest struck alarm in the hearts of a great many Nigerians. He fired his canon in the heartland of justice itself with the Chief Justice, several justices and senior lawyers seated! The timing was wrong. The mood of the nation would not sanction it and it was made to a totally wrong audience. Hear President Buhari: “The Rule of Law must be subject to the supremacy of the nation’s security and national interest. Our apex court has had cause to adopt a position in this regard and it is now a matter of judicial recognition that, where national security and public interest are threatened or there is likelihood of their being threatened, the individual rights of those allegedly responsible must take second place in favour of the greater good of society.”
The crucial point it would appear the president glossed over was that even if the Supreme Court came to the conclusion under reference, it was still a product of the Rule of Law. The stance must have been in consequence of a matter of grave national interest brought before the justices. It came before them in the cause of due process which is indeed the elixir of the Rule of Law. It was different from one man or a group of people determining what is national interest and what is national security. Those suspected of being on the way of constituting national security risks and who must be prevented from breaching national interest can only be apprehended and handed over by security agents to the judiciary and even then under the presumption that they are innocent. It is the judiciary that has been empowered to determine whether the charges against them are true or false, if true to mete out sanctions and if false, set them free no matter how strongly the executive arm of government may feel about it. For the executive to begin to constitute itself into a jury in its own case would amount to self-help for which it can be sanctioned. The president is no more than a servant of the law. The presidency is a creation of the law and cannot, therefore, be greater than what brought it into being.
The supremacy, beauty and triumph of the Rule of Law were on display on 09 August, about a month ago, in the United States, when the judge of the District Court of Colombia, Justice Emmet Sullivan, ordered the United States President to cause his Attorney General Jeff Sessions and the Homeland Security Secretary Kirstjen Nielsen to get an immigrant woman and her child who had sued the Trump Administration returned to the US. She was fighting deportation. The woman was seeking asylum in the U.S. complaining of domestic violence by her husband even after they separated. She was also fleeing from a death threat in El-Salvador from a gang. Her asylum application was rejected and her case was taken up by American Civil Liberties Union and Centre for Gender and Refugee Studies in combined efforts.
The case, brought by the two Non-Governmental Organisations under what was called “Emergency Motion”, was pending when the Homeland and Immigration had the woman and her daughter deported. By the time the NGO lawyers drew the attention of the court to the deportation, the plane ferrying her and the daughter was already airborne on the way to El- Salvador. Although the aircraft could not turn mid-air because aviation rules give pilots unquestionable right of decision in the air, the Trump Administration powerful as it is and cocky as Mr. Trump is, ensured that the order of the court was carried out as the Homeland Security Secretary took steps that the flight was contacted to return the lady and her daughter to America. She and her daughter were not disembarked. The same aircraft returned them to the United States to the relief of the American government and its functionaries in compliance with the court order. For them there could not be a plea of a fait accompli, and that the court order had been made in vain. The judge had said he was going to commit the Attorney General and Homeland Security Secretary Kirstjen Nielsen for contempt. The rule of law is, indeed, the first sign of a civilised society. Its victory is always sweet and reassuring.
Most rulers—governors and presidents, dictators and pseudo-dictators—all have contempt for the rule of law. They find the Rule of Law and the due process that it evinces inconvenient and constraining. From land to land and from country to country, they are uncomfortable and impatient with the Rule of Law. Mr. Trump is in a running battle with The New York Times and CNN. And using executive orders as a cover he sought to bar immigrants from war-ravaged Moslem countries from entering America. But for the Rule of Law, those he described as undocumented immigrants would have been fished out and sent out of the United States. Opposition and critics in the developing countries are considered irritants and labelled as merchants of hate speech and security risks. They want houses demolished without a court order. How they would have wished that their pronouncements were both law and deed. James Abiri’s ordeal is a case in point. Abiri, a publisher of a weekly magazine, Weekly Source, in Bayelsa, was locked up for two years without trial in the national interest, and in his own account, tortured. President Buhari is determined to wrestle corruption to the ground. He has repeatedly said he would send looters to jail, what he has no power to do. Justice Nnaemeka Agu said years ago that the only institutions that can fight corruption are the police and the judiciary. In my view, how true.
However, Rule of Law is one thing, its administration is another. The frustration of President Buhari is therefore, understandable. Of course, his background as a military general cannot totally be divorced from his irritation for the Rule of Law and impatience. It is the frustration of a great many in the land as well. Cases take ages to conclude. If a case goes on appeal from high court to Appeal Court then to the Supreme Court, it can last up to 20 years. The delay is not only justice denied, it also has cost implications. Out of frustration, many resort to self-help. That cannot be the Rule of Law desired by any decent society.
The problems of the judiciary are well known among which are inadequate funding, lack of modern equipment and assistants to judges to aid quick dispensation of cases. There have been promises of reforms by successive Chief Justices. They have not been able to make sure the reforms are not cosmetic. There is not much to cheer as of now. Senior lawyers more concerned with making money than rendering public service shun opportunities on the Bench. Even where the equipment has been reasonably provided as in the case of Lagos, credit to the current Vice-President, Yemi Osinbajo while he was the Attorney General and Commissioner for Justice in Lagos, not much has changed in the administration of justice in a state expected to set the example.
Even then, the delay cannot be used as an excuse to vitiate the importance of the Rule of Law. The administration of Law and the lofty concept of the Rule of Law are two different things. The Rule of Law is up there, sacrosanct and unapproachable. Its concept springs from loftiness unassailably high. It is a precipitation from the Law that governs the entire Creation. It permeates everywhere, every creature. Through it we breathe. We swim in it. It is adamantine, unchanging from eternity to eternity, and self acting. It is Law before which every creature is powerless and helpless, man or animal, aware of it or ignorant of it. It is the Power of the Holy Spirit, Who is Law and Justice of the Almighty God. He is His Will. The Creation Laws express this Will. That is why everyone carries within him the longing for justice and the Rule of Law. All human beings, all Globes, celestial or terrestrial, are in existence in consequence of the outworking of the Law known to us human beings as The Rule of Law.
It cannot be for nothing that justices are addressed as Lords and magistrates as “Your Worship”. It is because they are regarded as next to the Almighty Creator. Judges from the High Court upwards to the Supreme Court alone have the power of life and death over their fellow men. They can order the dissolution of governments. Before them both government and the citizen are juristic persons.
The assembly of lawyers did well by sitting calmly and allowing the president to deliver his address however awkward and alarming it was. Many clapped, a good number smiled. All that is routine. It did not mean approval. Very many wrinkled their faces in disbelief. It would have been ugly to engage Buhari at a gathering of learned and civilised men. There are standards for such a gathering. After all, they would have all the time in this world outside of the hall to dissect and tear the speech to pieces and throw it away, fit only for spiking. And they did and promptly, too, after they had lived up to expectation as a body of gentlemen and civilised people. In their reassuring statement, their association, NBA, said:
“The NBA completely rejects the presidential statement subordinating the rule of Law to National security. The NBA restates that the Rule of Law is central to a democracy and any National Security concerns by the government must be managed within the perimeters and parameters of the Rule of Law. As a corollary, the NBA frowns on the present growing trend whereby government decides on which court order to obey. The court has exclusive duty under a democratic dispensation to interpret the constitution and other laws, and government and the citizenry must comply with court orders at all times until set aside.”
The beauty of the president’s outing on that occasion is that we all now know how his mind is working, his contempt for law which is signal that the courts and the lawyers as defenders of liberty and freedom have to fasten their loins, and the citizenry on the alert. The Buhari Administration already has a litany of issues to prove that it actually means business.
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