There can be no freedom without the law. While it is the law that limits our freedom, it is also the law that guarantees our freedom. When there is no law to limit one’s freedom, there will be no law to guarantee the
freedom. Therefore, democracy, with its entrenched safeguards and expansive latitude for individual rights and freedom, must inevitably be founded on the law. The constitution (the supreme law of the land) outlines the structure and role of government and guarantees individual rights and dignity against government oppression. The Nigerian president is sworn to defend the constitution of Nigeria, and according to this constitution, the primary purpose of government is the “security and welfare of the people”.
President Buhari was under intense criticisms for what was seemingly a breach of the law; his administration’s continued detention of individuals already granted bail by the courts. To his critics, it was an unacceptable, blatant assault on the rule of law. The president’s defense of his action on grounds of national security did not impress his critics. They argued that the president is a dictator and that his disregard for a court ruling evinced his scorn for the separation of powers and portends grave danger for Nigerian democracy.
In granting bails to the accused, the court was operating within its constitutional purview. And, ordinarily, as no one is above the law, all, including the president, should be bound by a court order. But what of if the court order is in conflict with the president’s oath of office to defend the constitution of Nigeria (with its fundamental objectives of “security and welfare” of the people of Nigeria). In such a conflict, who should have precedence? Surely, it must be the President, elected by overwhelming popular mandate and not an appointed judge designated to interpret the law. Moreover, while the rulings of the judges are predicated on the narrow confines of the law and its technicalities, the president has access to broader sources of information, and is privy of classified information not available to the judges. Therefore, his decisions on national security may take priority over a court verdict. So, in ignoring a court order, in his determined commitment to the central roles of democratic government, as stipulated by the Nigerian constitution, President Buhari was not being a dictator, but a democrat, essentially, the ultimate democrat.
In the United States of America, the courts have wide powers of judicial review. Unlike in Britain, where an act of Parliament binds the courts, in America, a court in deciding a case before it, can disregard an Act of Congress that it considers inconsistent with the Constitution. However, despite the enormous powers of the courts in America, a number of American presidents have, in the past, defied court orders. For example, in the1830s, President Andrew Jackson ignored a Supreme Court order that voided a bill ordering all the Indian tribes to move west of the Mississippi River. More recently, President Bill Clinton defied court rulings on affirmative action. These rare but necessary breaches of court verdicts by United States presidents did not dismantle American democracy or nudge the country into dictatorship. Therefore, President Buhari’s disregard of bail orders was not tantamount to dictatorship, and was definitely, not a threat to democracy in Nigeria.
Presently, our deadliest national scourge is corruption. The piratical depredation – looting and tearing down – of this country by government officials in concert with their political and business cronies is bleeding the country to death. It has pervaded and perverted every Nigerian institution, including the ordinarily most incorruptible, like the judiciary, university and church. It has battered our morality, corroded our will and distorted our values. It has caused us more deaths and social disruption (though less conspicuously), and undermined the security and welfare of the country than Boko Haram terrorism. If not seriously checked, it will destroy this country.
A successful war against corruption will be remarkably splendid. It will, among other things, result in a more equitable distribution of the national wealth and the alleviation of the dreadful poverty of the Nigerian masses; make Nigerian institutions more responsive to the needs and aspirations of the people; elevate societal morals and ethics; enhance social justice, political stability and the rule of law, etc. A litany of the benefits of a victorious war on corruption reads like the electoral promises of President Buhari. Invariably, for the president to uphold his constitutional and electoral obligations to Nigerians, he must defeat the monster of corruption. Normally, this should be done in strict adherence to the standards of the law with its subtleties and technicalities and copious scope for evading and frustrating prosecution. On the other hand, this monster is entrenched, resilient and utterly ruining the country.
Therefore, fighting it demands urgency, vigor and the administration’s willingness to subordinate individual rights to the public good.
In resolving this moral dilemma, that is, in striking the delicate balance between the niceties of the law and the exigencies of the war against corruption, the president’s moral and constitutional obligations to the people of Nigeria should transcend a court ruling.
Tochukwu Ezukanma writes from Lagos, Nigeria.
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