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Mr. Femi Falana (SAN)

National security is subject to rule of law – Femi Falana

Mr. Femi Falana (SAN)

Human rights lawyer Femi Falana SAN has warned that the security of the country should never be confused with government security, stating that “it is problematic to place the security of the state entirely above the interests of individual citizens. Placing security concerns in direct opposition to human rights creates a false dichotomy. Each is essential for ensuring that a society is both free and secure. Privileging one over the other can have unintended negative consequences,” he said.

 Falana pointed out that, “In democratic societies human rights are at the core of national security itself. I posit that the purpose of national security should be to protect democracy and enhance democratic principles.”

 Falana said this in a paper he presented at the 2018 Annual Conference of the Nigerian Bar Association in Abuja.

 The paper reads in part: “The debate over the clash between the rule of law and national security has been reopened by President Mohammadu Buhari at this conference when he enjoined Nigerian lawyers and judges to realize that national security takes precedence over individuals’ security. A few days before then, the President had threatened to jail looters who had sabotaged the security of the nation by diverting huge funds earmarked for the development of the country. It is implied in the presidential declaration that the alleged looters cannot be jailed without a trial conducted in criminal courts under the rule of law.”

 “From 1984-1999, I was subjected to constant harassment by the security and intelligence community in Nigeria. Not for posing any threat to national security or for contributing to the economic adversity of the country. But for teaming up with other patriotic forces to challenge unbridled corruption, unabashed executive lawlessness, gross human rights abuse and other illegal activities which subverted national security and endangered the welfare of the people of Nigeria under successive military regimes.                                                                                                                                                                                                                                                                                                                               “Owing to the refusal of the civilian wing of the political class to demilitarize the polity there has been unsettled debate over the primacy of national security over the rule of law. Majority of political office holders in the country are not committed to the observance of the rule of law. In place of the rule of law, the political system has enthroned the rule of might or rule of rulers.”

“On July 17, July 2018, President Muhammadu Buhari had the rare privilege of participating in the activities marking the 20th anniversary of the International Criminal Court. On that auspicious occasion the Nigerian leader assured the international community that “our cooperation with the Court is borne out of our strong belief in the respect for the rule of law and human rights.”

“On the basis of such assurance from the President we are compelled to review the disturbing culture of disobeying court orders by officials of the federal and state governments under the current democratic dispensation. I want to believe that the President is not unaware of the fact that respect for human rights is the fundamental basis of a democratic society that is genuinely committed to the consistent implementation of the rule of law.”

“Human rights are indeed the basic building blocks that governments must cultivate in order to have an effective relationship with the general population. The extent that the protection of these rights is guaranteed signifies the democratic strength of a country. Indeed, human rights and the rule of law are crucial to the well-being of any truly democratic society. These rights include not only civil and political rights but also economic, social and cultural rights.”

“The subordination of human rights to national security has been a permanent feature of Nigeria’s political history. More than anything else, high level official corruption (and associated human rights violations) poses a major threat to national security, human security and individual human rights in Nigeria.”

“The cost of living in a society that human rights are not protected could not be justified by anything. The cost would be too high. I must make this additional point: Nigeria’s democracy must strive to meet three objectives of ensuring the rule of law; striking a balance between the short term and the long term, and between the individual and the community; and protecting the rights of minority groups. I will explain very briefly each of these objectives.”

“The rule of law. Good Governance requires the rule of law. Having good laws on the statue books is not enough. Laws must be implemented and enforced fairly and consistently in a transparent way or they risk becoming dead letters or, worse, instruments of oppression. There must therefore be some separation of powers and an independent judiciary. Furthermore, corruption is a long-standing problem that has to be combated.

“National security must be reduced to its absolute minimum — what I call a democratic conception of national security. The use of extraordinary measures in the name of national security for any other purpose should therefore be discouraged. Nigeria’s national security institutions must be effectively regulated and made accountable.”

“The government must adopt broad-ranging measures geared to develop an effective institution with an appropriate organizational culture for a democratic society as well as the direct and mandatory involvement of the National Assembly in after-the-fact review. In the final analysis, it is essential to place further legal limitations on government’s use of special national security measures.”

 “Since the security of the government in power is always equated with national security the police and security agencies have concentrated their attention on monitoring the activities of human rights activists and opposition figures in the country. In the circumstance, the police and security agencies have been unable to foil illegal take-over of government, through coup de tat and rigging of elections, kidnapping, hostage taking, religious riots and civil disturbances which have continued to threaten national security.”

 “It is common knowledge that disobedience of court orders is not uncommon in some democratic countries. But it is the duty of every government which is committed to the defence of the rule of law to ensure that court orders are complied with by all authorities and persons. The federal government has as duty to take urgent and decisive measures to put an end to the disobedience of court orders by many public officers and institutions. Since section 287 of the Constitution has imposed a binding obligation on all authorities and persons in Nigeria to comply with the decisions of competent courts, public officers who subvert the rule of law ought to be sanctioned.”

“Furthermore, in view of the fact that President Muhammadu is the current Chairman of the Economic Community of West African States the Federal Government should show leadership by example by complying with all the judgments of the regional court without any further delay.”

“The rule of law is violated by the federal and state governments as well as powerful individuals in the society through the following acts of impunity: Deliberate breach of the provisions of the Constitution and other extant laws; Compromise of the investigation of criminal cases by law enforcement agencies; Refusal of Attorneys-General to prosecute indicted criminal suspects, and Disobedience of court orders. 

 “The aforementioned acts of sabotage of the rule of law are carried out by the highly placed agents of impunity with the active connivance of lawyers. Experience has shown that governments are given legal advice by Attorneys-General while the rich and powerful people are advised by senior lawyers to comply with the provisions of the law or the decisions of the courts. Regrettably, the Nigerian Bar Association has failed to sanction the activities of Attorneys-General and senior lawyers who engage in the subversion of the rule and national security.”

 “The Nigerian government must comply fully with its national and international legal obligations to uphold human rights in all its actions so as to ensure security through the crucial protection of human rights and the rule of law. The government must demonstrate the commitment in deed and not merely in words to respect the rights and freedoms of citizens and to promote human rights. It is absolutely important that any measures limiting human rights are in compliance with international law.”

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