Rule of law is the very anvil and foundation on which any society is anchored. It precedes society itself and predominates over national interest.
Mike Ozekhome
I humbly disagree with President Muhammadu Buhari on his assertion that security and national interest should be elevated above the rule of law. He said this in his opening remarks during the 2018 Nigerian Bar Association (NBA) annual general conference currently going on in Abuja. Mr. President, with all due respect, is definitely wrong on this score.
The declaration reminded me of the locust days of Decrees 2 and 4, which decimated citizens’ rights and ousted the courts’ jurisdiction to inquire into breach of such rights. I was shocked when I beheld lawyers, who ought to have protested loudly at this legal profanity, clapping, laughing and “applauding” him. It was, to me, a desecration of the dignity of man.
Are we cursed, or are we under a spell or state of mental stupor and intellectual inebriety? Mr. President was literally suspending the Nigerian Constitution, by his statement. And lawyers were cheering!
Rule of law is the very anvil and foundation on which any society is anchored. It precedes society itself and predominates over national interest. Indeed, modern society itself emerged from pristine Stone Age irrationality through the operation of rule of law. It was the violation of the rule of law in the Garden of Eden by Adam and Eve, when they ate of the forbidden fruit, that so upset God that he drove them out of this Eldorado, after giving them a fair hearing. Without rule of law, there can be no nation-state. Without nation-state, there can be no national interest. Rule of law is father of national interest. No society can exist without the rule of law. It is immutable, ineradicable and unchangeable.
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Those deceiving Mr. President and writing warped “legal opinions” and speeches for him on sensitive national matters that could snowball into serious cataclysmic miasma capable of consuming all of us, just to keep their cheap jobs and serve the insatiable bacchanalian appetites of their gods in the ephemeral corridors of power, must remember the immortal words of the Supreme Court in Military Governor of Lagos State v Odumegwu Ojukwu (2001) FWLR (part 50) 1779, 1802, coran erudite Obaseki, JSC:
“The Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. Nigeria, being one of the countries in the world, which professes loudly to follow the rule of law, gives no room for the rule of self-help by force to operate.”
The Constitution of Nigeria is the supreme law, the font et origo, the grund norm (section 1(1) of the 1999 Constitution). The rule of law doctrine theorises, among others, that: all people and institutions are subject to and accountable to law; the principle of government of law. The rule of law means that no person or government is above the law; that there is restriction of arbitrary exercise of power by subordinating it to well-defined and established laws. It means that no person, however highly placed, is above the law, whether lawmakers, law enforcement officials, judges or persons in government.
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As propounded by Professor A.V. Dicey, the rule of law means equality of all persons before the law; observance of all laws by persons and authorities, irrespective of status. Of course, it encompasses obedience to orders made by competent courts of law.
The rule of law thus presupposes that once a court of law has made an order for the release of a citizen on bail, for example, the President, government and all authorities must obey the order of court. It is not for the government to pick and choose which order to obey and which not to obey, in the name of so-called “national interest” or “national security.” 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 is tantamount to executive lawlessness and governmental capriciousness and whimsicality to sit on appeal over a court decision to determine what amounts to national interest. Such a stance is a clear descent into anarchy and chaos. The Nigerian apex court in the case referred to by Mr. President made its pronouncement based on the peculiar facts of the case before it, the case of Dokubo Asari vs FRN (2007) 12 NWLR (Pt. 1048) 331. It was not a blanket statement authorising governments to disobey clear court orders. The case did not state that rule of law should be subordinated to national interest or security.
Only recently, a federal court in Washington D.C. descended on the President Donald Trump administration, when he reversed a deportation of an immigrant mother and daughter who were plaintiffs in an asylum case that was pending before the judge. The judge, in anger, did something unusual. He ordered that the Trump administration turn around the plane which had already exited to Central America and bring them back to the U.S. He indeed threatened to cite for contempt the attorney-general, secretary of the Department of Homeland Security (DHS), director of US Citizenship and Immigration Service (USCIS) and executive director, Office of Immigration Review (OIR), accompanied by their lawyers. Although the plane was not able to turn around, the DHS ensured that the mother and child were not disembarked in El-Salvador but were duly returned to the US as ordered by the court. The rule of law was thus allowed to operate to affirm this ruling of Justice Emmet Sullivan, District Judge of the District of Colombia.
Even in India, Justice M. Venugopal of the Madras High Court once declared that “right or wrong, obey court orders, especially when the order is not appealed against or stayed.”
In the case of Oba Aladegbami v. Oba Fasanmade (1988) 3 NWLR (PT. 81) 131; (1988) 6SCNJ. 103.” Per I. F. OGBUAGU, J.S.C., it was held:
“It is now firmly settled that a court order, must be obeyed even if such order is perverse, until such a time that the order is set aside by a competent court.”
In the case of Labour Party v. INEC (2009) LPELR-1732(SC), the apex court held that:
“It is now firmly established that a court order must be obeyed, even if such order is perverse, until such a time that the order is set aside by a competent court. See the case of Oba Aladegbami v. Oba Fasanmade (1988) 3 NWLR (Pt. 81) 131; (1988) 6 SCNJ 103.” Per Ogbuagu, J.S.C (P. 25, paras. C-D).
Also, in the case of AG Anambra State v. AG FRN & Ors (2005) LPELR-13(SC), the Supreme Court held that:
“The law in this instance is clear that it is settled that it is the unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it, unless and until that order is discharged and this the more so where the person affected by the order believes it to be irregular or void. Insofar as the order exists, it must be obeyed to the letter. See Military Governor of Lagos State v. Ojukwu & Anor. (1986) 1 NWLR (Pt. 18) 621 SC. An order of court, no matter the fundamental vice attaching thereto, remains legally binding and valid until set aside by due process of law.” Per Tobi, J.S.C (P. 54, paras. C-F).
Conclusion
Nations are built on precepts, which clearly limit the scope of governmental involvement in individuals’ life and existence. Any violation of an individual’s rights and civil liberties is tantamount to a clear subversion of the nation itself. This is because, without liberty and fundamental rights, the nation ceases to exist as a coherent entity.
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“National security” or “national interest” is a veritable smokescreen under which a tyrannical and lawless government hides to promote its own dubious agenda against the hapless masses, thus jettisoning all known provisions of the Constitution and the Bill of Rights. I hereby reject such illegal and unconstitutional theory.
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Does president or faction of Senate have power to reconvene upper legislative chamber on vacation? (2)
Curtain call
Last week, we started this above intriguing issue. We have so far shown that it is only the Senate President or, in his absence, the Deputy Senate President, that can reconvene a properly adjourned session when the Senate is on its annual recess. This week, we shall continue our discourse on the issue.
It is a question of fact, not of law, if there exists a division in a party. In the case of APC, 24 states held parallel congresses before the national convention. Can there be any better or stronger evidence of a division in a party? I think not! To add to the gravity of this internal implosion and vertical and horizontal schism, a new wing, r-APC emerged from the APC at the national level. It is headed by no less a person than Buba Galadima, a tested political strategist, Buhari’s right hand man and former secretary of Buhari’s CPC.
Although APC leadership had dismissed the breakaway factional members that have fecund Kassim Afegbua as their spokesman, the wind was removed from their sails when they commenced frantic fire brigade appeasement missions to the respective homes of these aggrieved members. They did these ‘nichodemously’ at wee hours of the night, even when they had claimed they would not lose sleep. They lost plenty sleep.
The Pandora’s box has since been broken as three governors, Senate President, 15 senators, over 40 House of Representatives members, local government chairmen, councillors, commissioners, etc, have defected in droves to the PDP, and some others to ADC and SDP. And still counting… So, all the legislators, including Dr. Bukola Saraki, are constitutionally covered and immune from removal from office, because their APC party is eventually irredeemably broken into smithereens and totally factionalized.
Must Saraki and Yakubu Dogara (I can bet he will soon defect) lose their leadership positions as Senate President and Speaker of the House of Representatives, respectively, by this defection? The answer is a categorical no. There is nowhere in the extant 1999 Constitution where it is provided that the ruling party must provide these principal heads of the bicameral legislature. Indeed, APC was lucky in June 2015, when Saraki, then in APC, was narrowly elected Senate President and Ike Ekweremadu of PDP as his deputy. It could have been the other way round as has happened many times in the USA, and heavens would not have fallen.
Section 47 of the Constitution provides that the Senate shall consist of 109 members and the House of Representatives 360 members. By virtue of Section 50(1) (A) of the Constitution, the President of the Senate and the Deputy President of the Senate shall be elected by members of the Senate. By Section 50(1)(b), the Speaker and Deputy Speaker of the House of Representatives shall be elected by members of the House. There is nowhere where it is stated that such officers must come from any political party, whether ruling or opposition.
(To be concluded next week)