Democratic autocracy: What is the place of the rule of law in President Buhari’s government?

At the 2018 Annual General Conference of the Nigerian Bar Association which had in attendance the country’s most eminent jurists and lawyers, the Nigerian President Muhammadu Buhari inferred that the rule of law should be subject to the nation’s security and national interest. Since then, the Nigerian media have been filled with reactions to the president’s remark.

This view, for the first time, provides some level of insight into the president’s thinking that has led, for instance, to the continued incarceration of former National Security Adviser Sambo Dasuki who is being held despite several court-granted bail applications—including the ECOWAS court.

As would be excepted, the president’s comments elicited diverse reactions especially given the country’s current tense political climate due to the fast approaching 2019 presidential elections. Politicians in the opposition parties claim that Buhari’s views on the rule of law reflect his known lack of democratic credentials— Buhari was military Head of State from December 1983 to August 1985, a reign characterised by government repression and human rights restrictions. Even the president’s team appears to concede this view in a subsequent statement that averred the president’s commitment to the rule of law.

I do not, however, think that the president’s statement should be considered a mere political slip or the criticisms of his opponents be taken as part of an electioneering strategy. I do think that Buhari’s remarks are genuinely worrisome in view of not only his antecedents as military Head of state but also his disregard for court orders in his present role as president—most notably his refusal to release the nation’s former National Security Adviser, Sambo Dasuki, despite six bail orders by the country’s courts. Sambo Dasuki, who also obtained an order for his release from the regional ECOWAS Community Court of Justice, remains incarcerated ostensibly under the president’s instructions.

Addressing questions on a similar case of an incarcerated separatist leader, Nnamdi Kanu, who had been granted bail at the time, Buhari remarked: “Do you know he has two passports—one Nigerian, one British—and he came into this country without using any passport? Do you know he brought a sophisticated equipment into this country and was broadcasting for Radio Biafra… [and] you think he should be given bail to go away?”

The above quote suggests that in the president’s opinion suspects, in highly political cases, might not be freed on court-granted bails, based on the president’s own evaluation of the possibility of such persons jumping bail. Needless to say, the president appears to be sitting on appeal on the decisions of the courts in violation of the basic principle that no one should be a judge in his own case.

An important underlying issue is not simply whether national interests can override the rule of law but who defines, and what amounts, to “national interest”. It would appear, from the present circumstances, that “national interest and security” is defined around the perspective and opinion of the president. This was demonstrated by comments of the Senior Special Assistant to the President on Judiciary Reforms, Juliet Ibekaku-Nwagwu, when questioned on the Dasuki’s continued detention despite several bail orders. In her comments, the SSA insinuated that Dasuki’s detention was the result of ‘presidential directives’ which were issued in the interest of national security.

Interestingly, the presidency has not been able to clarify how releasing Dasuki on bail would affect national security. Rather, the language employed has resembled one of extrajudicial conviction and vindictiveness. For instance, while commenting on the precedence of national security over individual rights, Ibekaku-Nwagwu only made references to how Dasuki ‘sat back and allowed several human beings to be killed and slaughtered in the North-east’ without using allocated funds to purchase arms for the country’s military. Dasuki’s failure to purchase these arms, she asserted, had led to a ‘national security problem’ in the country. How his release on bail, as ordered by the courts, could portend a danger to national security remained a moot point.

This lacuna is also noticeable in the comments of the Attorney-General of the Federation (AGF), Abubakar Malami. Speaking on Dasuki’s indefinite detention, the AGF was quoted as saying: ‘Remember we are talking about a person who was instrumental to the deaths of over 100,000 people. Are you saying that the rights of one person is more important than that of 100,000 who lost their lives?’ One is therefore led to conclude that Dasuki’s continued incarceration, despite court-granted bails, is more punitive—perhaps based on his perceived role in the Boko Haram crises—than in the interest of national security. This necessarily brings us to the question of the rule of law.

The rule of law as originally espoused by AV Dicey emphasises the prominence of the law over discretion and the equality of every person before the law. These simply mean that the state must not have unregulated discretion and that no one should be above the law. It is difficult to imagine any circumstance where these principles should be departed from. Even in instances of national emergencies, where the law allows for greater executive powers and discretion, these remain regulated through rules—for instance, on when and in what circumstances are greater executive powers to be exercised.

It is possible that, by his utterances on the rule of law, President Buhari was referring to human rights. Of course, it is accepted that certain human rights, such as freedom of speech and liberty, can indeed be subject to other interests such as national security—this is why terror suspects can, sometimes, be detained for longer periods than normally allowed by a country’s constitution. But even in these cases, it is expected that the courts would be the final arbiters and that the executive would not ‘overrule’ the court. This is where the rule of law comes in—not concentrating all the powers of the state in one arm of government. Having the executive arm flagrantly disregard the decision of the courts is not accepted under any known national or international legal democratic order.

In his reaction to the government’s stance, one of the fiercest critics of the administration, Mike Ozekhome, remarked: ‘Once a court of law has made an order for the release of a citizen on bail, the president, government and all authorities must obey the order of the court. It is not for the government to pick and choose which order to obey and which not to obey in the so-called name of national interest. This is because in arriving at a decision to release an individual on bail, the court must have first heard the facts and argument of the case of both the government and the citizen’.

It would appear, from the present administration’s rhetoric, that the rule of law takes second place not to national interests or security but to questionable interpretations of those terms. To the common man in the streets, it could very well be the case that the rule of law is subject to political vindictiveness and extrajudicial “justice”. This should clearly not be the case for a country that has shown a lot of promise in terms of building its fledgling democracy.