False choice between human rights and national security

In his speech at this week’s Nigerian Bar Association (NBA) Conference, President Buhari made the controversial argument that the: “Rule of Law must be subject to the supremacy of the nation’s security and national interest. Our apex court has had cause to adopt a position on this issue in this regard and it is now […]

In his speech at this week’s Nigerian Bar Association (NBA) Conference, President Buhari made the controversial argument that the: “Rule of Law must be subject to the supremacy of the nation’s security and national interest. Our apex court has had cause to adopt a position on this issue in this regard and it is now a matter of judicial recognition that; where national security and public interest are threatened or there is a likelihood of their being threatened, the individual rights of those allegedly responsible must take second place, in favour of the greater good of society.” The President was most likely trying to rationalise the repeated decisions of his Government to disregard court orders, which is blatant disregard for the rule of law. No democratic State can decide what court orders it would obey or disregard.

This view of deciding what judicial orders to obey or disobey based on the notion that you can set aside the rule of law is taken as the gospel truth within Nigeria’s security and intelligence agencies. This means that the doctrine of our security agencies has not made the transition to democratic values. It is important to recall that in Nigerian history, the colonial security apparatus was established to control and extort the people and not to protect them. Not surprisingly, the security culture that developed within the traditional actors was one of repression with an emphasis on coercion and general lack of civility towards the civilian population. The result has been corruption within the services and an attitude of serving the power elite rather than the people. Following independence, the democratic regime lasted only six years before the military took over. This meant that democratic culture did not have enough time to impregnate the security forces. 

The Second Republic was short lived and the Third Republic was still born. The Fourth Republic which has lasted eighteen years so far has been our opportunity. Unfortunately, the fact that the first President, Olusegun Obasanjo, was from the military tradition and tried to force through a third term in office meant that things have been slow to change. After the short Umaru Musa Yar’Adua and Goodluck Jonathan interregnum, we returned to a General with the Buhari Administration. It is therefore not surprising that we have retained state-centric rather than a people-centred approach to security so national security remains equated to state security, which in turn is seen as the security of those who occupy public office. 

The Nigerian citizen has long endured a culture of intimidation by the country’s security forces. Law enforcement agents have since colonial times developed a culture of reckless disregard for the rights of the people. The legal framework has not helped matters given our colonial heritage of laws against vagrancy, illegal assembly, wandering, and illegal procession. The state is constructed as an edifice against citizens who are assumed to have a natural tendency to break laws and must therefore be controlled, patrolled and constantly surveyed. Not surprisingly, citizens learn to fear and avoid law enforcement agents. The ordinary Nigerian sees security agents as potential violators of their security rather than providers of their security. The reality of state security for ordinary people then becomes the perception of insecurity. 

It is important to emphasise that security is a good thing. It is the function that guarantees that people and states are free from violence at the local, national and international levels. Security is conceived in modern states to provide the framework that guarantees that the ordinary people are free from external aggression by enemies of the community and internal subversion that can ruin their lives. This means that the purpose of state security is not to protect the people who occupy positions of state power but to protect the ordinary people. The current reality in the country is that ordinary Nigerians have never been as insecure as they are currently with the Boko Haram insurgency, the farmers-herders clashes, rural banditry and kidnapping in a context of generalised criminality. Adding the removal of judicial protection into the mix can only reduce public safety.

In democracies, there is no choice at any moment between the rule of law and national security. On the contrary, the security of the citizen is predicated on the absolute respect for the rule of law. Democracy is based on the affirmation of the principle that the governance of human society should be based on law rather than the whims and caprices of human beings who occupy public office. The characteristics of the rule of law are that the laws are made by the legitimate authority empowered to make them and that they are obeyed by all. This means that the laws apply to everybody so all persons are equal before the law including the lawgivers. The most basic principle is that members of the society are citizens and therefore have rights that must be protected by the law. It is for this reason that you cannot set aside the law for the sake of national security. Without the edifice of law, the security of the citizens gets lost in arbitrary action of those who wield state authority.

The rule of law therefore, says Black’s Law Dictionary, is: “A principle of governance in which all persons, institutions and all 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.” The rule of law is the essence of the spirit and values of democracy and accountable governance. For this reason, the protection of civil and political rights is an integral part of the rule of law. The Nigerian Constitution in its Chapter 4 on fundamental human rights integrates these rights into our principles of the rule of law. In understanding the rule of law, citizenship is an important notion because it defines the constitutive elements of the democratic state and spells out the relationship between state power and individuals. It is the rule of law that spells out procedures and sets of practices defining the relationship between the nation state and its individual members. Citizenship implies that power must not be used in an arbitrary manner and those who control force and arms in society cannot use it to their own advantage. State security must be reconceptualised to enhance the consolidation of democracy.