Speaking the Nations Mind

Upholding The Rule Of Law Through Concerted Efforts Against Terrorism By Philip Agbese


“A democratic freedom-loving society does not accept that investigation use any means to uncover the truth—at times, the price of truth is so high that a democratic society is not prepared to pay it.” Justice Barak of the Supreme Court of Israel

Yes, there have been debates about the rule of law and the implication for National Security in Nigeria. While I have hesitated to jump into the fray, I was somewhat challenged to put my thoughts in the public domain in an attempt to put issues in proper perspectives. As a start, one question comes to mind. And it is, can the rule of law be canvassed in a state of insecurity?

Off my head, the rule of law implies that every person is subject to the law. In a commentary titled “Protecting Civil Liberties and the Rule of Law in the Age of Terrorism” by the Henry M. Jackson Foundation and the Wilson Center’s Kennan Institute, Middle East Program, and Rule of Law Initiative, it was stated that “during times of war, individual liberties and certain protections under law may be limited and the society accepts this temporary loss of rights as a reasonable cost to defend the homeland and defeat an adversary”.

This brings me to the crux of this article in this week’s column, which is the rule of law in the age of terrorism in Nigeria. The first question I would like to ask is what the fundamental objective of democracy is. Democracy and the rule of law are whole concepts that make it possible for modern societies to function effectively and thus guarantee peace, harmony, and egalitarianism in the nation. It has also become the most fashionable and enduring form of government in modern times. On the other hand, the rule of law is the legal principle that law should govern a nation. It primarily refers to the influence and authority of law within society, mainly as a constraint upon behaviour.

It is therefore apt to state from the preceding that, the rule of law is the bedrock of modern constitutional democracy. It follows, therefore, that, to avoid tyranny and oppression of the citizens, the rule of law should equally embody the separation of powers, so that each organ or arms of government shall be a check on the other arms. It is on this premise that democracy can thrive in a state. However, there is a snag, which is the expression of the rule of law concept in the age of terrorism using Nigeria as an example.

Justice Barak of the Supreme Court of Israel in a 1999 decision of the Israeli Supreme Court dealing with the interrogation practices of the General Security Service—also known as “Shin Bet”—in using so-called “moderate physical pressure” in the interrogation of terrorism suspects, he stated that “This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. They strengthen its spirit and add to its strength and allow it to overcome its difficulties.”

The Israeli Supreme Court’s conclusion in the case applies equally to Nigeria in the sense that Nigeria’s success in fighting the threat of terrorism would increasingly depend on public confidence that the government can ensure the fair and impartial administration of justice for all Nigerians while carrying out its essential national security and public safety efforts.

It is also evident that in Nigeria, some view the government’s techniques and authorities as unnecessarily authoritarian. While others see those, who have concerns as uninformed and willing to needlessly sacrifice the country’s safety. Much of the debate is shrill and ill-informed on both sides. This is truly unfortunate and certainly does not foster the needed public confidence. By necessity, I believe, some of the government’s efforts have been aggressive. But are those decisions made in the interest of the wellbeing of the country as regards National Security?

As a researcher in human rights law , I am of the opinion that in dealing with terrorism, the focus could no longer be on just investigation and prosecution in tandem with the rule of law, but there should also be concerned about prevention and disruption, which has indeed elicited the litany of debates on the rule of law and national security in Nigeria. This has been the lot in Nigeria. I dare say that those that want the head of the president for dinner did so for two reasons. It is either they want just to express themselves or be seen to be contributing to the national discourse, or they merely acted out of sheer ignorance.

Yes, it is a fact that the rule of law is a critical factor in the advancement of democracy, rooted in equal rights and accountability. By strengthening the rule of law, we protect the rights of all people, advance inclusiveness, and limit the arbitrary exercise of power, which are the cornerstones of modern democracy. It must also be noted that National security is the podium of democracy and if democracy loses security imperatives, it has lost its real substance.

Professor Chai-Anan Samudavanija, a Thai political scientist, and one of the principal drafters of the 1997 Constitution of Thailand in his analysis of the role of the state in promoting democracy opined that the most critical function of the country is, in essence, to ensure security for itself and the people. National security means the sustainable development of which the nation enjoys freedom from poverty, ignorance, disease, and other forms of vulnerability. For the average Nigerian, democracy is only meaningful if it delivers what has become known as democracy dividends, which includes security of lives and properties and protecting the country from external aggression.

Taking the Boko Haram Insurgency into focus, it is evident that the Nigerian Army has played that pivotal role in restoring peace to North East Nigeria. And this came with a price. The nation has indeed lost hundreds of personnel in the fight against terrorism all in a bid to provide the much-needed security of lives and properties as much as preserving our democracy. Can there, therefore, be a democracy in an environment of insecurity and threat to national security? Can the rule of law be enforced in a state of uncertainty? Can there be meaningful development in the absence of national security? These and many more questions are begging for answers. Those that have chosen to misconstrue the stance of President Muhammdu Buhari as regards National Security and the Rule of law ought to have a rethink because as a first, it must be evident that for every human society there are laid down rule and regulations that guide our actions and inactions. If people act against these laid down laws, there are penalties. And if the actions and inactions of a people, group or organization constitute a threat to National security, the necessary decisions must be taken to prevent a breakdown of law and order because, in the absence of law and order, there would be no democracy in the first place. And if there is no democracy, there would be no rule of law, and if there is no rule of law, there would be no country.

I think that President Muhammdu Buhari has indeed delivered on the core fundamental which is ensuring that the necessary ingredients for our democracy to thrive are in place. And one of them is National Security. And as I mentioned earlier, National security is the podium of democracy.