Dilemma over national security, rule of law

Villascope with Lawrence Olaoye

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When President Muhammadu Buhari took it upon himself to fight corruption and insecurity, he probably did not not know the enormity of the encumbrances besetting the task. In the last three years, corruption has turned itself into a cat with nine lives; ferociously fighting back. But Buhari has remained resolute to root out the menace.
Corruption constitutes a threat to national security and Nigerians are unanimous on the need to extirpate it and enthrone accountability, transparency and justice in the polity. They are also concerned about the rise in incidences of killings and insecurity across the country.
People are yearning for an egalitarian society where they could achieve their potentials, live in an environment without fear of being hacked down by faceless marauders. These, of course, are not too much to ask as they are taken for granted in some other climes.
The President recognised the imperatives of having to at least ‘kill corruption before it kills Nigeria’ and therefore declared war on those ‘termites’ eating the commonwealth, tipping the people into the abyss of poverty.
Considering the effects of corruption on the society, it can well be described as a veritable threat to national security. The ailing nation’s economy is a causality of corruption and corrupt practices.
Majority of Nigerians are unemployed now because funds meant for development of infrastructures in the past were mismanaged and sometimes outrightly embezzled by corrupt government officials. These corrupt men could be categorized as threats to national security. Ditto those politicians fueling insecurity across the country to gain political leverage.
The dilemma thrown up by the imperatives of observing the tenets of the rule of law and human rights in the prosecution of corrupt elements in the country was brought to the fore for national discourse by the President who declared recently that national security should not be slaughtered on the altar of the rule of law. To him, when national security clashes with the rule of law or personal liberties, the former should take precedence.
The President in his opening remarks at the 2018 Nigeria Bar Association (NBA) Conference held recently in Abuja, had said “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 may be responding to agitations by some human rights activists for the release of some suspects being held back in the gulag in spite of court orders granting them bail. The cases of Ibrahim El-Zakizaki and the former National Security Adviser (NSA), Sambo Dasuki, and others readily come to mind.
El-Zakizaki, the leader of the Islamic Movement of Nigeria also known as Shi’ites, who is currently facing various charges, including murder of a soldier during the bloody clash of his followers with soldiers in convoy in December, 2015 was kept by the Department of State Security (DSS) for about two years without trial.
The Federal High Court in Abuja had in December 2016 ordered his release from custody but the government held him back on the ground of national security.
Dasuki, the NSA to ex-President Goodluck Jonathan, who was arrested in December, 2015 on the allegation of misappropriating $2 billion arms fund had been granted bail by four different high courts in the country. But the government did not find it expedient to release him as he is still being kept by the DSS.
While agitators have been clamouring for their release, the government believe that they are better kept because they constitute security threats.
Yes, those held in detention deserve their freedom in accordance to the tenets of the rule of law and constitutional provisions of human rights, but the government, which is in possession of intelligence reports, feels that granting them freedom may hamper the peace of the nation and decided to hold on to them.
It is with this reality that some lawyers find the President statement curious. The statement has elicited robust debates in both social and legal circles. While some lawyers have described ‘national interest’ as being vague and ambiguous, depending on who is interpreting it, others hold that observing constitutional provisions of human rights is sacrosanct in a democracy.
They raise the fears that ‘public good and national interest’ could become an instrument of oppression in the hands of an intolerable tyrant against the opposition elements in the country. They equally submitted that such submission was unconstitutional.
But it appears the nation’s justice system, as it is today, is frustrating. Prosecution of cases of corruption in the nation’s courts take time before conviction is obtained. Ingenious lawyers exploit the lacuna in the nation’s constitution to delay the process of justice and this most often than not takes the steam out of the prosecution process.
Fantastically corrupt individuals granted bail by the courts mostly interfere and compromise the process of investigations by influencing their matters with their ill-gotten wealth.
This perhaps prompted the President’s comment of national interest superseding personal liberties. But lawyers and human rights crusaders disagree. The fear remains that elevating national security above acknowledged human rights could be a harbinger of tyranny. This is because the definition of national security is subjective; it depends on who is defining it.
But it must be stated clearly that democracy thrives on liberty and freedom as guaranteed by the constitution. A suspect is considered innocent until he is proven guilty and the onus of proof lies on the accuser.
In older democracies, rule of law is cardinal. An accused is expected to be charged to a court of law where his innocence or otherwise could be proven. Parties involved in legal duties are expected to abide by the ruling of the courts.
But the wheel of Justice in this country appears to be too slow. Smart men, especially the corrupt, exploit this window to either evade or delay justice. Cases of graft always drag for years before conviction is secured due to inherent inadequacies in the system.
These lamentable legal and systemic encumbrances have constituted themselves into a cog in the wheels of progress to the efforts being made by Buhari’s administration to combat corruption and insecurity in the country.
Nevertheless, there must be a way around the matter as corruption must be dealt with in the country for there to be economic growth.
To this extent, many have come with the suggestion of the establishment of special courts to expeditiously deal with cases of corruption. There have been complaints that the regular courts are being overwhelmed with both criminal and civil cases making the judges to sometimes grant frivolous applications for adjournment.
Some others have suggested that the government should approach the National Assembly with a bill to put a time-frame to prosecution of corruption cases. With the establishment of special courts and mandate on the judges to deliver their ruling within a specific frame of time, the issue of incessant adjournments would be addressed.
Other critics have suggested that the saying that a suspect is innocent until proven guilty be reversed through legislation in cases of corruption. They are suggesting that a suspect should be perceived guilty until he can prove himself innocent. With this, wealth suspected to have been corruptly accumulated may be seized by the state until the suspect could prove his innocence in the court of law.
Proponents of this believe that the limitless resources available to suspects facing corruption charges are being used to procure adjournments in order to frustrate their prosecution. The snag in this suggestion is that it could be used to witch-hunt perceived political enemies by those in power.
Some people have criticized the anti-graft agencies for not tidying up their evidences and investigations before effecting the arrest of persons suspected to be corrupt. Worse still, they hold that the suspects are being charged to court on countless unprovable charges making the judges to throw out their applications.
To ensure that water-tight charges are preferred against suspects, the anti-graft agencies should carry out in-depth investigations of the activities of the suspects and employ the services of experienced lawyers who would draw-up indestructible charges for their prosecution.
There is also the need to review the law specifying penalties for the convicted. There are some of the penalties stipulated by law that are considered obsolete, especially where they have options of fine. The amount stipulated by the law, as it stands now, remains ridiculous and any smart crook could just plead guilty and pay the fines without hassles and walk into unfettered freedom.
Perhaps, the President’s injunction to the men of learned profession has become instructive in the matter from here as he cautioned “As we gradually move into another season of intense political activities preparatory to the 2019 General Elections, I enjoin you to remember that by reason of your profession, you all have a responsibility to work for national cohesion and unity through your speeches and public positions and most importantly in your advocacy in court.
In the context of opinions and narratives about our past and present political and socio-economic experience, you cannot afford to jettison rational and proper analysis of issues in a manner which builds, rather than destroys the nation. I also urge you to work to uphold and improve the sanctity and integrity of our judicial and electoral institutions which play a fundamental role in the sustenance and growth of our democracy.”