Leesi Ebenezer Mitee Barrister and Solicitor of the Supreme Court of Nigeria

The Rule of Law and National Security

Copyright © 2018 By Dr. Leesi Ebenezer Mitee
30 August 2018 (First Published)

The current debate in Nigeria on the rule of law and national security has revealed that some lawyers don’t understand the profound ramifications of the sacred, omnibus concept of the rule of law. Some lawyers have wrongly used the principle of DEROGATION from human rights in Section 45 of the Constitution of the Federal Republic of Nigeria 1999 (Nigerian Constitution) to support their strange argument that the Rule of Law should be subordinated to national security. Some of them have stated that the Rule of Law can be SUSPENDED for the purposes of dealing with threat to national security. The said Section 45 (restriction on and derogation from fundamental rights) states:

“45. (1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society –
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other persons.

(2) An Act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of section 33 or 35 of this Constitution; but no such measures shall be taken in pursuance of any such Act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency:

Provided that nothing in this section shall authorise any derogation from the provisions of section 33 of this Constitution, except in respect of death resulting from acts of war or authorise any derogation from the provisions of section 36(8) of this Constitution.

(3) In this section, a “period of emergency” means any period during which there is in force a Proclamation of a state of emergency declared by the President in exercise of the powers conferred on him under section 305 of this Constitution.”

Additionally, some lawyers have also laboured to use the following pronouncement of the Supreme Court of Nigeria in Dokubo-Asari v. Federal Republic of Nigeria (2007) to support their argument:

“The pronouncement by the court below is that where National Security is threatened or there is the real likelihood of it being threatened human rights or the individual right of those responsible take second place. Human rights or individual rights must be suspended until the National Security can be protected or well taken care of. This is not anything new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation is certainly greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist.”

The pronouncement by the Court of Appeal, which the Supreme Court appears to have affirmed, to the effect that “human rights or individual rights [can] be suspended” is contrary to the inherent nature of human rights. The word “suspended” is definitely strange. Maybe the Honourable Justices thought it also meant “restricted” or “derogated from”, as used in Section 45 of the Nigerian Constitution 1999 (quoted above).

Human rights cannot be suspended. The Rule of Law stipulates the circumstances in which individual rights can be LAWFULLY restricted. For instance, a person convicted of MURDER loses his own right to life when the death penalty is imposed on him; a prisoner’s right to freedom of movement is restricted, etc. This curtailment of rights must be in strict conformance to the RULE OF LAW.

The rule of law is supreme; without it, the human society will degenerate into the bestial, primordial state of survival of the fittest and the ultimate destruction of human society and civilisation. Without it, the law cannot perform its native function as a veritable, indispensable instrument of social engineering.

The rule of law governs national security and everything that happens in every civilised society. Even during the unfortunate period of emergency and war, the rule of law governs what is lawful and acceptable. That is why there is the LAW OF WAR that regulates acceptable conduct and activities of soldiers, including the prohibition of the use of chemical weapons and weapons of mass destruction, prohibition of torture, and the treatment of prisoners of war.

It is reiterated that it is the Rule of Law, which is SUPREME, that determines what to do in every situation. This is the aspect that many people are missing. The Rule of Law dictates exactly what to do in any genuine instance of THREAT TO NATIONAL SECURITY. That means the relevant principles of law should govern the action of the State in such situation, not any arbitrary decision or action. This is why THE RULE OF LAW CAN NEVER BE SUSPENDED, NO MATTER THE SITUATION.

TREASON is an obvious example of threat to national security. The RULE OF LAW provides that a person accused of treason, like EVERY accused person, should be tried FAIRLY in accordance with the criminal justice system. If the person is lawfully CONVICTED, then the person can be sentenced accordingly. All the processes MUST comply strictly with THE RULE OF LAW.

The rule of law is the oxygen of every democracy. On this unimpeachable general, universal philosophy, Kenya’s Chief Justice David Marag stated thus: “The rule of law is the oxygen of constitutional democracy.” The United Nations authoritatively stated the following on the rule of law:

“The Secretary-General has described the rule of law as ‘a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.’ (Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies (S/2004/616).”

Communique of the Nigerian Bar Association (NBA) on the Rule of Law and National Security (58th Annual General Conference, 26 – 30 August 2018)

“The following resolutions were adopted during the conference.

1. Rule of Law and National Security

● Conference 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, Conference frowns at the present growing trend whereby government decides on which court orders 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. . . .”

Copyright © 2018 By Dr. Leesi Ebenezer Mitee
Legal Informaticist & Director of the Nigerian Legal Research and Legal Education Support Initiative

30 August 2018 (First Published)

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Dr. Leesi Ebenezer Mitee
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