It is actually not a false choice to place security and the national interest first, over the rule of law and human rights. It is a pragmatic exercise in statesmanship, guided by the doctrine of necessity and the preservation of the State. This by no means places an imponderable strain on the mind to comprehend. It is a basic rule in politics and statecraft when confronted by existential issues that require balancing between rights and necessity.
At a time when the overwhelming majority of Nigerians are yearning for decisive approaches to confronting national security challenges and ensuring a robust war against corruption, stymieing such efforts in the mire of controversy and constricted premises do not offer much of an alternative to us to look forward to. The narrowing down of the scope of action available to the State, and circumscribing it by imposing limitations ostensibly issuing from arguments predicted on the rule of law and observance of human rights, would not be of much help in urging action towards addressing such necessities.
Nigerians should realize that it does not help to take issues with the President at every opportunity however propitious. A modicum of reverent restraint is called for when dealing with pronouncements made by a leader, who sees matters from a parallax view rather than the narrow telescopic prism of the habitual critics and the self-appointed public commentators. I can only describe the recent spate of articles in which various sorts of people reacted to the assertion by President Muhammadu Buhari that the rule of law must sometimes be subsumed under national security interests, as puerile and a mere storm in a tea cup.
The President’s “doctrine of necessity” as I prefer to term it, has been viewed as an attempt to roll back aspects of the rule of law and respect for human rights, and therefore, the prelude to degeneration into dictatorship in Nigeria. Such alarmist interpretations and unfounded imputations to the President’s remarks made at a forum of legal practitioners, can only be described as unwarranted intrusions into the private recesses of the President’s mind. They seek to draw out from there unintended attributions of contemplated alterations to our statutes, that would allegedly have far-reaching consequences on the democratic dispensation that the country is now under.
Proclaiming that the rule of law can in certain situations, be subsumed under, and even be superseded by broader national security considerations, is a statement of transitional policy and not a doctrinal ascertain. It did not portend towards a long term or permanent alteration of the constitutional precepts and precedents that inform our philosophy of governance.
On the contrary, it provided a cerebral food for thought to the assembled legal luminaries at the Nigerian Bar Association (NBA) convention to broaden their views on how to reconcile certain “Acts of State” with their restricted understanding of human rights and rule of law. Those taking the President to task and hauling him before the public tribunal should understand the premise he was coming from, and the drift of his argument. The necessity of national security considerations sometimes overriding legal provisions can understandably be adjudged to be true under some limited or circumscribed conditions.
There is no doctrine known to me that says the enjoyment of human rights per se, or the application of the rule of law are absolute and have no limitations, and are therefore perpetual both in their conception and scope. The mere fact that the enjoyment of one’s human rights stops at the point where the rights of others are infringed upon, puts restrictions if not in principle at least in practice, on unfettered enjoyment of such rights. The law is precise and almost clinical in its construction.
Elasticity in interpretation renders the law superfluous and therefore, of little effect when seen as a framework for guiding individual conduct and establishing limitations on premeditated acts and activities. Even the indeterminate freedom of thought becomes an obstruction if a mental process is translated into activities that impede the enjoyment of life, liberty and happiness by others.
These are precisely the offshoots of corruption, terrorism and sundry threats to decent society and the national interest, that are conceived in the minds of people as premeditated actions, and deliberately carried out by the actors. Absolute freedom does not exist either in natural law or in positive law. Such constructs are bound by inherent limitations that can be invoked and applied under certain conditions. One such parameter is the overriding needs of national security and the defence of the State.
The State, in the mythical Hegelian construct, must perpetuate itself as a primary duty and responsibility, by any means possible. Such an outlook puts the State over and above any law, principle or doctrine including the abstract understanding of the rule of law and human rights, at least in theory. Even the doctrinal Marxian “withering away of the State” as conceived by Frederick Engels, is in itself a historical process in the accomplishment of which the State must use every means to defend itself and maintain its supremacy, in directing national policy before its theoretical obliteration.
All human rights and the rule of law can only be enjoyed under conditions of security and reasonable certainty about what tomorrow might bring. Giving primacy to law and order is simply laying the foundation for the security of life and property, as well as enabling the perpetuation of the rule of law and human rights. This in no way equates to a recrudescent approach or understanding of rule of law and enjoyment of human rights. The Defense of the Realm Act (DORA) was passed by the House of Commons at the “Mother of Parliaments” on 8th August, 1914 at the outbreak of World War I without a debate in the United Kingdom.
It was an anticipatory measure adopted to curb the potential threats to the State and all activities that could undermine the war effort. The Act severely restricted and even removed basic liberties like freedom of speech, press freedoms and allowed for imprisonment without trials, all in the national interest in war time. During World War II, Germans were interned in the UK on the grounds of the national interest and potential threats to the security of the realm. Similarly laws were passed in the United States, following the surprise attacks by the Empire of Japan on Pearl Harbour on 7th December, 1941.
One consequence of these laws was the internment of more than 100,000 Japanese in that country for the duration of the War. As recent as a few years ago, the United States introduced sweeping measures under its Homeland Security provisions, after it came under surprise terrorist attacks on 11th September, 2001. Subsequent to those attacks and its declaration of “war on terror”, the United States made several alterations to its position on the rule of law and human rights, allowing for such things as involuntary rendition of suspects and extraction of information under duress (by means of torture such as water boarding or other extreme interrogation measures). One is not here defending the positions adopted by the United States in those difficult times and unprecedented state of confusion and bewilderment that confronted its successive administrations since the so-called 9/11 attacks.
One is simply making a point that under extreme considerations and momentous difficulties, States are obliged to dispense with certain expedients that are predicated on principles and normative standards, and adopt practical and occasionally painful measures that could sometimes contradict the rule law and even morality.
Such situations should not be a normal state of affairs, but should be considered as aberrations and extreme measures occasioned by, and forced upon the State to adopt, to protect itself and its citizens against egregious threats and distractions that undermine
the commonwealth and the national interest. That was to my understanding, what President Muhammadu Buhari was precisely advocating when he so candidly and courageously barred his mind at the Nigerian Bar Association (NBA) national convention.
Stating such a weighty proposition before an audience of so discerning and learned men and women, attests to the President’s frame of mind as a reformer. He is an honest and transparent leader who seems exasperated by the convoluted system of justice and tortuous juridical process, that sometimes fail to distinguish between national emergency situations, and other sundry issues related to rule of law and human rights. Any leader with a millenarian mindset but with a limited time and circumscribed situation, is bound to feel constrained by the boundaries that are artificially set by the law in apprehending and reversing the state of decay in our country today.
The pace and tempo with which the law responds to the need for action in addressing those issues that threaten national security such as pervasive corruption, terrorism, communal unrest etc, would seem unrealistic and therefore painfully slow, to be of utility to the leader in registering success in tackling the identified existential threats to the nation. Both the rule of law and human rights aim to establish the wellbeing of the community, without which they become meaningless. Invoking the two principles and applying them concurrently to an individual animal living in the state of nature would be a redundant and meaningless exercise.
They can only have effect and meaning when applied in the context of their efficacy on a living community of human beings, engaged in various types of transactions at both the individual and group levels. It is in such contexts that the rule of law can be invoked, and human rights can be established to ab initio guard the parameters of individual and group interests and responsibilities.
President Muhammadu Buhari’s views therefore, can be welcomed from the radical perspective, especially as they challenged the sterile and perfunctory bourgeois conception of the rule of law and human rights. His bold and radical alternative proposition about the supremacy of the national interest cannot be faulted from the point of view of history, even if challenged from the bourgeois legal perspective.
Alternative facts do not necessarily mean rewriting the rules or repositioning the manifest truths. They mean adopting new and different approaches to issues and matters that relate to the propagation of ideals that foster progress and protect the common good. From this perspective, Nigerians must be weaned from their libertarian inclination towards the rule of law and unrealistic claim on the unfettered enjoyment of human rights under all circumstances.
Rights in all circumstances must be balanced with privileges. This means that those claiming the prerogative of rights and seeking protection under the law must first be responsible for their actions and be accountable for their deeds. They must also know the limits set by the law itself to the enjoyment of human rights either as prescribed by international norms or established by national juridical frameworks.
This should equally lead to the understanding that the rule of law is of little utility without the corollary invocation of responsibilities of the individual and the group towards the commonwealth. Important rights such as the right to life and property, promotion of human dignity, and preservation of activities and practices that are not contra bonos mores (against good morals, and not harmful to the larger society) must all be premised on the existence of order and preservation of security.
Without venturing too far into the recondite intricacies of the law (one can readily consult Blackstone on that), one can conclude by maintaining that there is continuous antagonism between Natural Law and Rights on one hand, and Positive Law and Rights on the other. Today’s human rights discourse is delineated along the lines of balancing of the conflicting understanding of these two legal parameters.
Human rights as prescribed first in the Universal Declaration of Human Rights (UDHR) and subsequently in other processes such as the Nuremberg Laws etc, must ultimately be predicted upon securing the peace and harmony in the society.
As so rightly observed by Cardinal John Henry Newman, there can be no community without order. President Muhammadu Buhari was therefore right and cannot be so easily faulted there. People of vague enthusiasm who rush into the fry without thinking twice should take time to reflect on his infrequent but forthright pronouncements before crucifying him on the their hastily constructed and transient alters of self-righteousness and absence of foresight.
Amb. Sarki was a former Permanent Representative of Nigeria to the United Nations