In August 2018, legal practitioners faulted President Muhammadu Buhari’s position that the rule of law would promptly be relegated to the backburner whenever national security was threatened.
While delivering a keynote address at the beginning of the 58th annual conference of the Nigerian Bar Association (NBA), on August 26, 2018, Buhari irritated many lawyers, and indeed Nigerians with his government’s view of the rule of law and its application.
“The 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,” Buhari said.
Even though Buhari didn’t enumerate cases in court, which could compel the need to allow “national interest” to override the rule of law, the Attorney General of the Federation (AGF), Abubakar Malami, re-echoed his principal’s stand when he justified the Federal Government’s serial failure to comply with repeated court orders for the release of former National Security Adviser (NSA), Sambo Dasuki, who was still in detention at that time.
Even after Nobel Laureate, Prof. Wole Soyinka also disagreed with the Buhari-led government’s approach to the rights of Nigerians and lampooned it for exhibiting traits of “paranoia” amidst the isolation of his government by the citizens, another high-ranking official of the government, the Comptroller-General of the Nigeria Customs Service (NCS), Col. Hameed Ali (rtd), in October 2019, again reinforced the administration’s strange position when he urged Nigerians to forget the rule of law and constitutional protections of their fundamental rights where matters of security are concerned.
Mr. Ali’s position confirmed Buhari, Malami, and the administration’s position that security takes precedence over the rule of law.
Speaking at a briefing on the closure of the country’s land border, Ali said: “When it comes to security, all laws take the back seat… We want to make sure that our people are protected. You must be alive and well for you to begin to ask for your rights. Your rights come when you are well and alive. Go and (ask) the people in Maiduguri when Boko Haram was harassing their lives, the only question was survival; there is no question of right. This time Nigeria must survive first before we begin to ask for our rights.”
Judging from the administration’s much-trumpeted emphasis on national security, one would be tempted to believe that the government is doing a great job protecting the lives and property of Nigerians, in line with constitutional provisions.
Section 14(2)(b) of the 1999 constitution (as amended), states that “the security and welfare of the people shall be the primary purpose of government, and the participation by the people in their government shall be ensured in accordance with the provisions of this constitution.”
In an article entitled, “Right To Life And Property In Nigeria: A Failed Reality,” Chetachi Louis–Udeh highlighted this much when he said: “Article 3 of the Universal Declaration on Human Right states that everyone has a right to life, liberty and security. Equally, the African Charter on Human and Peoples’ Rights (the Charter) Article 4 enshrines the right to life as follows, “…human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right…”
He added: “The right to life is amply provided for in the 1999 Constitution of Nigeria (as amended) in Sec 33, which clearly states that every person has a right to life and no one shall be deprived intentionally of his life, save in the execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria. Likewise, Section 14 (2b) states that the welfare and security of the citizens shall be the primary purpose of government. But irrespective of all the above provisions, Nigerians continue to witness cases of gross violation of human rights.”
Chapter II of the1999 constitution (as amended) – “Fundamental Objectives and Directive Principles of State Policy,” enumerates, what can succinctly be described as the primary function of government. Reading Sub-section 2 (b) in isolation may not allow for a full grasp of the import, but the picture becomes clearer when the entire sub-section is perused. It goes thus: “(a) sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority; (b) the security and welfare of the people shall be the primary purpose of government, and (c) the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.”
From the foregoing, the state is saddled with the responsibility of developing a practical framework to promote, protect and fulfill the right to life of its citizens, and must be seen to take practical steps to prevent arbitrary deprivations of lives and further conduct prompt, thorough and transparent investigations into any such deprivations that may have occurred, holding perpetrators accountable and providing an effective remedy for the victims.
Unfortunately, from the abundance of evidence available, and as attested to by many, Section 14(2)(b) of the 1999 constitution has been largely observed in the breach. From North to South, East to West, Nigerians of diverse creed, faiths, and cultures are united in their submission that this administration has succeeded in creating a level playing ground for insurgency, banditry, kidnapping, and sundry violent crimes to thrive.
They also insist that its glaring lack of expertise in conflict and crisis management has found expression in the recurring massacre of innumerable human beings yearly, as well as the destruction of property worth billions of naira regularly, with its tepid efforts at ending insecurity being akin to clutching at straws.
For five years now, Nigerians have patiently watched President Buhari run an ineffective and an incompetent government, with every part of the country continually bleeding from bruises of all sorts, a development which, perhaps prompted the Co-founder, Women for Civil Rights and Liberties Organisation Comrade Jessica Ogwata, in a post on her verified Twitter handle @WomanOfVoice to say: “Any government that cannot protect the lives and property of its citizens, ab initio, is not supposed to exist a minute longer than necessary because that is the primacy of governance.”
Since the Federal Government has failed in its primary task of protecting Nigerians and their possessions, the former Vice President, Atiku Abubakar, was so peeved that he said every Nigerian, irrespective of status, has the right to self-defend, as well as the right to combat terrorism in whatever guise.
Atiku, whose comment was in the wake of the South West security outfit, Operation Amotekun, stressed that such rights were guaranteed by international law enshrined in Article 51 of the United Nations Charter of which Nigeria is a signatory.
“No human power has the authority to criminalise the protection of human life, and no human ambition is worth the failure to speak in support of the people to remain in favour with the oppressors of the people,” Atiku said in a statement.
Atiku, who also commended the Nigerian Armed Forces and paramilitary agencies for showing great gallantry, patriotism, and dedication to duty added that “the reality on the ground in Nigeria today is that our armed and paramilitary forces are overstretched. To deny this is to unpatriotically put their lives at risk. This, we must not do. They deserve better from us.
“Without their altruistic services, where would the war on terror be? I also acknowledge and appreciate the work that hunters and vigilantes have done and are still doing to help boost security in states scattered across Nigeria, including in the North East and Zamfara, Jigawa and Taraba states, to mention a few.
“Not a few Nigerians can sleep with two eyes closed, because of the action of these bodies of dedicated and gallant countrymen,” Atiku said, adding that, “there is too much insecurity in the land and too much inefficiency from the Federal Government, leading to wanton and unnecessary loss of lives. It is easy to think that all is well when you are in secured State Houses, but the reality is that the security situation is far from fine for the average Nigerian citizen,” he said.
In such circumstances, Atiku continued, “people have an inalienable God-given right to self-defence. This divine right, as long as it is limited to self-defence, cannot be declared illegal by man. Not by any stretch.”
“What I counsel is that the executive, legislature, and the judiciary must wake up and smell the coffee. When they do, they will realise that people who have volunteered to provide the internal security, that the government has not been able to provide, need encouragement, and more importantly, a legal framework and central support to make their dream of preserving the dignity of human life a reality. Internal security is not a call for secession and we must abandon the paranoia that makes us see it as such,” the former vice president added.
Kabiru Adamu, a security expert admits that “there is the inability of the government to provide security; people are dying, but that responsibility can be better carried out if all arms of government work together. The national security architecture recognises the roles played by communities in securing and protecting society. For example, when you have communities organising themselves into vigilantes, it is expected that the vigilantes will be infused into arm-bearing agencies, the police in particular, which has the specific responsibility of incorporating them and training them, just like it did in Kano… That is how vigilantes should be incorporated into the national security architecture, and the police have the responsibility to train them, and their roles should be clear, that they could make an arrest, but not prosecute.
“What we are seeing currently, especially in the North West where they make arrests and prosecute, and in most instance, through mob action, creates its problem. In Zamfara and Kastina, the vigilantes have also become a source of security concern and challenge. Since they are important, they must be legally incorporated into the national security architecture and supervised by the Police so that they understand their roles and not go beyond it,” he said.
With ethnic groups joining Atiku to canvass self-defence as the way out of the insecurity challenge, Adamu thinks that “allowing communities to protect themselves will return us to the era where the most powerful reigns supreme. So, the main option for citizens is to continue to demand change. Since the power of social media has become extremely strong, we can use it to raise, draw attention, and demand for change. We should put the same pressure on the executive and the legislature at the federal and state levels. The media also should not relent. This, I think is the way to go. Of course, the election will soon be here.
“Additionally, since the general election would soon be here, we should, as a matter of importance, mainstream this issue for it to become topics during the election. The Federal Government has some beautiful policies, including the Police Act 2020, but it should come out with an implementation framework that will state clearly how that act will be implemented. Two, it should show the key performance indicators of the implementation, likewise the Revised National Security Strategy because there are so many policies without implementation frameworks.
“There are 27 ministries, departments, and agencies within the national security architecture, and they are operating solo, most times not cooperating, creating very difficult challenges. So, there is also the need for better coordination. Like I always say, the way to go is cooperation, when all of these 27 MDAs within the national security architecture work together, there will be a better result.
“Also, we tend to lay too much emphasis on the military. The military, yes is very important, but they are not very important when it comes to internal security. So, we should reduce emphasis on the military, and look at agencies like the Nigeria Customs Service (NCS), and the Nigeria Immigration Service (NIS). The proliferation of weapon that is affecting us is within their purview; it is for them to work hard and secure these borders. We should also reconvene the National Security Council so that we can start doing things properly. The circumstances where we deploy the military without activating the National Security Council is wrong. Proper procedure should be followed if the military should be deployed for internal security and the discussion for the deployment should be at the National Security Council level.
“We should also introduce monitoring and evaluation in our national security strategy or policy to be able to measure the performance of these organisations, just as it is very important for ensure probity and accountability so that people would sit up, and persons held responsible for actions. Corruption in the system must be eliminated, while personnel welfare is enhanced,” the expert stated.
While some Nigerians, including administrator, strategist, and former political adviser to former President Olusegun Obasanjo, Mr. Akin Osuntokun, say that it was obvious that the nation’s security has been grossly mismanaged under the present government, the National Chairman, African Democratic Congress (ADC), Chief Ralph Nwosu, insists that Nigerians have already resolved to self-defence, even as the dimension it might take this year (if the situation persists) remains uncertain.
Nwosu, who noted that many communities were increasingly resorting to vigilante, not to arrest thieves as it used to in the past, but to defend themselves against insurgents and bandits, which the government has failed to bring to the book.
He said villages, especially in the North were now deserted while investors are also reluctant to come to Nigeria because of the state of insecurity.
Wondering what the ruling party wants to do next to salvage the country, “which is in a state of anarchy,” Nwosu described as unfortunate, the Buhari-led administration’s refusal to heed advise offered it on how to resolve the security impasse, including changing the service chiefs or making the leadership of the security forces to reflect ethnic diversity.
Also x-raying the Federal Government’s failure to end daily bloodbath, a former deputy governor of the Central Bank of Nigeria (CBN), Dr. Obadiah Mailafia, said: “If sovereignty belongs to the people and the powers of government is delegated authority from the people; and if it is agreed that people must have an avenue of participating in decisions that affect their lives while the security and welfare of the people is the primary ontology and raison d’etre of government itself, then the government has momentous responsibilities. I am a student of jurisprudence myself. And I know that when a constitution or legal text deploys the word “shall”, then it makes the undertaking obligatory and unescapable. Some lawyers have argued that the “Fundamental Objectives and Directive Principles of State Policy” are more declaratory than justiciable. But I think that when the word “shall”, appears under sub-sub-section (b), then we are talking of serious commitments here. When the government fails in this area, and we all agree that they have failed – no class action lawsuit could be taken to any court on the matter. But there is always the court of public opinion. There is always the court of ethical morality.
“The killings in our country have reached unacceptable levels. Nigeria has become the kidnap capital of the world. We are probably overtaking Afghanistan and Somalia in terms of kidnapping and banditry. You probably came across the recent warnings from the influential London-based The Financial Times. They warned that Nigeria is on the verge of becoming a failed state. The Financial Times doesn’t do gimmicks; it is the most important financial newspaper in the world. And if they make such a deposition about our country, we would be fools to dismiss them. It would be unfair to blame the government alone for the killings and insecurity. In a manner of speaking, we have all failed as people.”
Across the country, many are of the view that the government has not done enough to punish perpetrators of extrajudicial killings in the country. According to them, this is the reason why these heinous crimes have continued to fester. Mailafia, a development economist, and the 2019 presidential election candidate of the African Democratic Congress (ADC) agrees with this assertion.
He said: “Sadly, we know that the current government has never really arrested or prosecuted some of the bandits and insurgents. Many police officers tell us that they are under instruction never to arrest any herdsman militia. The militia herdsmen can wield sophisticated arms openly, but the local people at the receiving end have no right to wield even dane guns and bows and arrows. Often, the military are sent to disarm local communities and then the herdsmen militias move in to commit mayhem. We believe that they are largely being protected by the authorities. It is a horrendous evil such as we have never seen in the annals of human crime. And that being the case, it behoves on the affected communities to apply the jurisprudential doctrine of necessity in dealing with the pure evil that confronts them. We cannot mince words about that!”
Commenting on factors that could have overtime fuelled the worsening state of insecurity in the country, the former CBN chief said: “There is no denying the fact that that sociological factors deriving from rapid urbanisation and modernisation can, and do contribute to spurring alienation and, ultimately, political violence. French sociologist, Emile Durkheim, identified anomie as a major psychosocial malady in industrialising societies. The sprawling slums of cities such as Kaduna, Abuja, Lagos, and Maiduguri are cesspools of crime, prostitution, and violence. When youths drift to cities and lose the traditional moorings that provided meaning and signification to their lives, they could fall easy prey to extremist ideologies.
“It is also evident that a country with historical antecedents of political violence, civil war, and dictatorship nurtures an environment that is more susceptible to terrorism. Nigeria’s rather long history of civil strife makes it easier for insurgency, banditry, and lawlessness to thrive. Unfortunately, we face what looks increasingly like state failure in our country; a situation where state structures lack the political will and/or capacity to provide basic functions needed for poverty reduction, development, and safeguarding the security and human rights of their populations. State failure can be said to prevail where public institutions are no longer able to deliver positive political goods to citizens and that such failure prevails on a scale likely to undermine the legitimacy and the existence of the state itself. The most critical areas of state failure relate to the inability to provide a wide range of public goods, especially in terms of law and order, security, provision of electricity, economic and communication infrastructure, and supply of basic welfare services. Nigeria recently overtook India as the world capital of poverty. We have an estimated 98 million destitute poor, which is almost 50 per cent of our total population. Youth unemployment in the far North hovers at over 60 per cent. And when you add to it porous borders in which arms from the failed states of the Sahel can easily flow through, then you have a recipe for disaster.”
A human rights lawyer, Yemi Omodele, is quick to caution that a situation where insecurity continues to escalate leading to the resort to self-defence by citizens may have adverse effects on the polity.
He said even though Nigeria is a signatory to a lot of international treaties and conventions, which support self-defence, creating room for this to happen would create room for people with bad intentions to take advantage of.
Omodele, who reiterated that “Nigeria belongs to all of us,” regretted that “our politicians are not doing what we expect them to do. Therefore, we should use our votes to correct the wrongs in the next election rather than allow the country to slide into a state of pandemonium.”
But for the President of the International Solidarity for Peace and Human Rights Initiative (ISPHRI), Comrade Osmond Ugwu, protecting Nigerians should dominate the government’s agenda in the year 2021 since the major responsibility of every government is to protect the life and property of the people.
According to him: “Social security, which is an integral part of the nation’s security system includes, addressing poverty and issues that promote ignorance. It also entails the provision of employment and functional educational institutions. Without all these and many more, no society can have peace, which is the ultimate desire of every society and responsible government.
“In Nigeria, the ultimate priority of the government is to provide functional and effective physical security; provide real employment and employment opportunities, functional and effective education institutions, facilities and personnel, as well as independent, functional and effective justice and judicial system that can protect and promote the fundamental human rights of the citizenry, including the right to exercise the franchise, experience real development, true democracy, good governance, happiness, peace, and progress.”
Also speaking, the National Coordinator of Civil Rights Realisation Advancement Network (CRRAN), Mr. Olu Omotayo, said that the Federal Government must listen to Nigerians and immediately rejig the country’s security architecture.
Insisting that the Nigerian Police Force, which has continued to fumble in the face of security threats must now be reformed, Omotayo added that, “it is important that we address mounting security challenges if Nigeria must move forward and its ailing economy rejuvenated. When we do this, other things will fall in place,” he stated.
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