12 October 2018

Nigeria: Rule of Law, National Interest and Buhari's Obloquy (II)


The rule of law is eminently positioned to address the challenges of social and economic inequality, injustice, poverty, un-equal access to opportunities, etc. These values themselves ought to be the central concern or interest of a nation steeped in the path of order and progress. Nigeria's single most defining characteristic as a democratic entity should be a strict adherence to the rule of law with its attendant attributes of the scope, scale and speed of its inherent change potentials. Vast changes in our modern world have left us trailing behind because our leaders are yet to understand, let alone grapple with, the basics regarding the march towards modernity.

Today, the relationship between the individual and the group or collective is changing rapidly and fundamentally. The role of society or the state for determining, for instance, the ingredients of what constitutes national interest particularly when they glaringly or even un-obtrusively conflict with official position regarding same, is reserved for the courts of the land to adjudicate upon. It is not the office or purview of the government to declare ex cathedra that it has a superior view on the subject matter, for instance, of the continuing detention of a suspect who the court had granted bail.

Government's advocacy or protection of a putative national interest in the light of a substituting court order to the contrary is non sequitur and will be facetiously laughed out of court. No one can tell how far Buhari's emergency doctrine will carry us. But we know that any attempt to further lower the stakes regarding the parametres of good government and particularly the tendency to want to dethrone the rule of law from its cherished position will bode resentment, rejection and ill-will for the government. Even as President Buhari's political philosophy appears not to have undergone any change considering his antecedents, he is at heart and has, in fact, remained a Social Darwinist. His harsh conviction is only tempered by the civility, innate kindliness and social conscience credentials of our corpus of laws and particularly of the constitutional provisions which he is obliged to obey or be guided by.

There are a number of important historical milestones on our giddy journey to the achievement of the rule of law. They cannot be ignored. The Magna Carta 1215 was not a sudden or spasmodic intrusion into English society and politics. Laymen had been applying its principles long before it was formulated into a reasoned aide memoire. The charter merely expressed the will of the people or that of the expressive representatives of the community. The writ of habeas corpus subjiciendum demanding the physical presence in court of a defendant or criminal suspect developed as a substantive remedy for prisoners or detainees to challenge the lawfulness of their detention.

This procedure gained more strength as it was re-inforced at a later stage with another writ seeking an order of certiorari (now called a quashing order) where the court orders the production before it of the decision of an inferior tribunal for it to be quashed. A most effective remedy against executive lawlessness later emerged in the form of a weapon otherwise referred to as judicial review where the courts take another look at the lawfulness of administrative action taken by others. This important remedy is itself one of the fall-outs of the gains of the gradual development towards the rule of law. Where a statute or statutory regulation empowers a specific officer (such as the Chairman of INEC or the Director of Public Prosecutions) or a specific body (such as a housing authority, a local government or the ports authority) to make a particular decision, it does not empower anyone else so to do. There is also a presumption that the decision made will be in accordance with the law.

By an order of mandamus, for instance, the court orders a person, corporation, minister or tribunal to perform a legal obligation where it had poorly performed such acts or had been derelict thereof. A writ of quo warranto, on its part, questions or inquires by what warrant or authority a person had exercised a particular duty. These antique milestones have immediate contemporary significance for the enjoyment of our status as members of the human community and as citizens of our various nations. The subject of the rule of law is of infinite importance as it has been suggested that we need leaders who better understand it.

The public interest in the subject matter has been fortified by concerns regarding a convenient misunderstanding of the inter-relationship between the rule of law, human rights and civil liberties on the one hand and "national interest" on the other. One such grievous misunderstanding of the matter was on display when President Buhari made his uncharitable remark concerning his presumed supremacy of "national interest" over and above the rule of law which presentation he made before an elegant gathering of the nation's learned men.



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