Ehiwe O. Samuel is a Lagos based lawyer with one of Nigeria’s foremost commercial law firms and the President of the Advocacy for Justice in Africa. In this paper, he addressed the issues of the subservience of individual rights to National interest/security.
So much has been said about which has a higher weight between ‘National Interest’ and the ‘rule of law’ [individual rights]. This is in fact not a new subject, it has been a topical issue from the days of yore. In his comment on what a government must do to fight corruption in a corrupt system, Vladimir Putin, the President of Russia said, ‘in fighting corruption in a corrupt system, one may not have to follow due process; all that should be done is to follow ‘‘necessary process’’ ’. what necessary process means remains to be determined, but one thing is sure- it does not mean following the due process of the law.
National interest is indeed an all-encompassing word. It relates to the interest of the entire citizens and corporate existence of the State as against the right and interest of an individual citizen. Taking Nigeria as a case study, it would mean right and interest in the ratio of 180,000,000: 1. In fact, national interest has defined by the Merriam Webster dictionary to mean; ‘the interest of a nation as a whole held to be an independent entity separate from the interests of sub-ordinate areas or groups and also of other nations or supranational groups’
The implication of this is that whereas the rights of an individual is sacrosanct, inalienable and shielded by the bulwark of the rule of law, that shield can be torn off if sparing it will be detrimental to the overall interest of the State. What is more? The court was called upon to pronounce on this issue in the case of Alhaji Mujahid Dokubo Asari v. Federal Republic of Nigeria (2007) LPELR-958(SC). In that case, the supreme court per Mohammad JSC, stated thus;
‘A person’s liberty, as in this case, can also be curtailed in order to prevent him from committing further offences. It is my belief as well that if every person accused of a felony can hide under the canopy of section 35 of the constitution to escape lawful detention, then an escape route to freedom is readily and richly made to persons suspected to have committed serious crimes and that will not augur well for the peace, progress, prosperity and tranquillity of the society’
The provisions of Section 35 of the constitution which guarantees the rights of the individual is undoubtedly not without limits. However, it suffices to say that it is incumbent on the courts, and the courts alone to determine the limitations. Thus, it follows that while the right of an individual can be made subservient to the national interest and security. The courts have been vested with the power to interpret the existing laws and any attempt by any other arm of government to usurp that power will be a flagrant breach of the foundations that hold the State together as a democratic entity.
It is rife and unpleasantly recurring for citizens to hear of instances where courts of law make orders for the release of detained suspects and government functionaries in the executive arm of government will refuse to adhere to the court’s orders on the pretext that the individual ordered to be released by the courts are threat to national security and that it will be in the national interest for such individuals to continue in detention.
This notion is a flagrant abuse of power and a total disregard for the rule of law. It is the court that determines whether or not an individual should continue in detention as decided in the Asari-Dokubo’s case (supra). Where the court orders the release of a suspect, upon meeting his bail conditions, he is to be released and if the executive arm is not satisfied, the only window open for it is to appeal against the court’s decision, seeBlue-Chip Acquisition And Investment Co. Ltd. V. Zenith Bank Plc & Ors. (2008) LPELR-8529(CA)
In conclusion, it is very correct to posit that individual rights, the rule of law and indeed certain procedures can be suspended and made subservient to the national interest, but it is still for the courts to determine instances where such would be allowed. Any contrary position would be an invitation to avoidable chaos, anarchy and a regrettable decline to Thomas Hobbes’ state of nature where life is solitary, poor, nasty, brutish and short.
Written by
Sam EhiweLawyer at Perchstone & Graeys and President, Advocacy For Justice in Africa.
No comments:
Post a Comment