Jan 28, 2020

National interest and Rule Of Law in a Constitutional Democracy: Any Conflict? | Dele Adesina LLM, SAN, FCIArb


Being a dinner speech by Dele Adesina LLM, SAN, FCIArb at the NBA Akure Branch Law Week on Wednesday the 4th of December, 2019[i]


It is a great honour and privilege to be invited to this Law Week Programme and particularly to give the Dinner speech. My profound thanks to the Chairman, Leaders and Members of this great Branch of our beloved Association.



I am particularly excited that this Dinner is in honour of Honourable Justice Babatunde Adeniran Adejumo OFR, former President of the National Industrial Court of Nigeria, a very astute, quintessential and remarkable Judicial Administrator and a very great achiever indeed. I have always believed that it is more appropriate and rewarding to celebrate heroes in their lifetime, when they themselves can feel, and experience people’s love, affection and admiration for them. So I thank the Branch for dedicating this Dinner to the honour of Justice Adejumo.


Before he became the President of the National Industrial Court, the National Industrial Court was no more than an “obscured Court-house in a dilapidated building” at Victoria Island, Lagos and another make shift building in Abuja.[ii] Due to the vision, hard-work and commitment to excellence of Honourable Justice Adejumo, the National Industrial Court was transformed from its obscurity to an institution of National pride and global fame. You only need to see the sprawling edifice of the Court in Lagos, Ibadan, Abuja and several other States of the Country. It is also a product of his doggedness that the National Industrial Court today has become one of the superior Courts created by the Constitution by virtue of the Constitution of the Federal Republic of Nigeria, Third Alteration Act, 2010.[iii] From the beginning, it was not so.


The theme of this year’s Law Week is “National Interest and the Rule of Law in a Democracy: Any Conflict?” This theme is not only topical but also very contemporary and of course very auspicious at this point in time. It is topical because it is existential not only to us as individuals but also to us as a Nation. It is contemporary in the sense that, it is an issue of the moment as debates and arguments are ongoing as to whether National Security, another amorphous word like National Interest, takes precedent over the Rule of Law or not. It is also auspicious because a discussion of the theme, which I believe you have had profusely since this Law Week began and a humble addition I will make tonight, will promote a better understanding in order to make our democracy successful and sustainable. The Bible says that “the righteousness of your testimony is everlasting, give me understanding and I shall live.”[iv] Understanding promotes outstanding. The more we understand the concepts and the system we operate as lawyers, the better we are in practising the system.


I have taken the liberty, haven been told by the Branch Chairman to craft a topic around the theme to speak on National Interest and the Rule of Law in a Constitutional Democracy: Any Conflict? Essentially, both the theme of the Law Week and my topic are one and the same thing. However, the addition of the word “Constitutional” is very paramount not just because we operate under a written Constitution which is the ground norm of our Laws, but also because we practice democracy based on the Constitution. In other words, we are practicing or we are supposed to be practicing constitutional democracy. Secondly, the success or failure of our democracy will be decided by our compliance or otherwise with the provisions of this organic Law called the Constitution.


You can hardly discuss democracy in Nigeria without taking your root from the Constitution. Like I stated in my goodwill message, whether the promotion of National Interest is in conflict with the promotion of the Rule of Law in a constitutional democracy such as ours, or whether indeed one exists in furtherance or advancement of the other in a symbiotic relationship, the answer to these questions will be clear at the end of my short discuss tonight.


Let’s attempt definition of the key words:


NATIONAL INTEREST

According to Victor Lukpata, in the article National Interest and National Development in Nigeria,[v] the notion of National Interest is vague and so it is difficult to give a precise definition. Generally speaking, National Interest can be defined as the general long term and continuing purpose which the States, Nation and the Government see themselves as serving. The National Interest of a State is rooted in the social consciousness and in the cultural identity of a people. In other words, the National Interest of a State is a product of social values which the people have. Indeed, it has been said that, in practice, the National Interest of a country is synthesized and checked by political leaders or policy-makers, and that is why National Interest can also be defined as what the policy-makers say it is.


In the article titled National Interest: Meaning, Components and Methods,[vi] Morjentahau defined National Interest to mean survival, the protection of physical, political and cultural identity against encroachment by other Nation States. You can see that National Interest can mean whatever you say is National Interest if you become a policy-maker tomorrow. Somebody in fact stated that the National Interest of a country can mean the interest of its leaders. At a point in this Country, in the eyes of the military leadership, National Interest meant National Security. To that poor man on the street, the eradication of poverty can as well mean National Interest. So also is finding a solution to insecurity of lives and property, banditry, armed robbery and kidnapping on our highways in my own opinion also constitutes National Interest.





RULE OF LAW

Recognising my audience, I am not going to bother you with a long definition of the Rule of Law. Suffice it to say that “Rule of Law primarily means that everything must be done according to law. It means also that government should be conducted within the framework of recognised rules and principles which restrict discretionary powers, which Coke colourfully spoke of as ‘Golden and Straight Matwand of Law’ as opposed to the uncertain and crooked cord of discretion.” [vii]


In the words of Honourable Justice Oputa J.S.C., “Rule of Law presupposes: (i) that the state is subject to the Law; (ii) that the Judiciary is a necessary agency of the Rule of Law; (iii) that Government should respect the right of individual citizens under the Rule of Law; (iv) that to the Judiciary is assigned both by the Rule of Law and by our Constitution the determination of all actions and proceedings relating to matters in disputes between persons, governments or authority.” [viii]


As far as 1995, the International Commission of Jurists in calling attention to the apparent disregard of the Rule of Law in many Nations of the world, solemnly made the following declaration (which has become my darling statement) in the Act of Athens that:


       i.            The State is subject to the Law;

     ii.            That Government should respect the right of individuals under the Rule of Law and provide effective means for their enforcement;


  iii.            That the Judges should be guided by the Rule of Law, protect and resist any encroachment by the Government or Political Parties on their independence as Judges;


  iv.            That Lawyers of the World should preserve the independence of their profession, assert the rights of the individual under the Rule of Law and insist that every accused is accorded fair trial.





DEMOCRACY

In its simplest form, Abraham Lincoln said that “Democracy means the government of the people, by the people and for the people.” I did not understand this eternal definition to mean the government of some people, by some people, and for some people as our elections are beginning to show in Nigeria today. A few days ago somebody in a write-up said that “Nigeria’s democracy is fast becoming the government of the politicians, by the politicians and for the politicians.” This position, if it is not true at all, I submit is arguable. Not subject to any argument, however the definition that says democracy is about people, and people are at the very centre of democracy; therefore, for democracy to endure, it must necessarily guarantee the improvement of the lives of the people. Democracy and development are two sides of the same coin and the two concepts are mutually reinforcing.”[ix]


In words of Judge Bola Ajibola SAN (supra), “For democracy to endure, it must guarantee the improvement of the lives of the people.” In my own humble opinion, I also wish to submit that, for democracy to endure, it must guarantee the supremacy of the choice of the people, made in a free and fair electoral contest and competition, conducted in accordance with the enabling law, without harassment or intimidation. It must increase the standard of living of the people. It is again arguable if we are measuring up to these fundamental ideals of democracy.


CONFLICT

The other key word in the topic is the word ‘Conflict’. The Oxford Advanced Learner’s Dictionary, Sixth Edition,[x] defined ‘Conflict’ to mean: “a situation in which people, groups or countries are involved in a serious disagreement or argument. A situation to which there are opposing ideas, opinions, feeling, or wishes. A situation to which it is difficult to choose.”


The Black’s Law Dictionary[xi] defined ‘Conflict’ as per conflict of interest or conflict of law to mean: “a real or seeming incompatibility between ones’ private interest and ones’ public or fiduciary duties. A difference between the laws of different States or Countries in a case in which a transaction or occurrence central to the case has a connection to two or more jurisdictions.” For example, “a real or seeming incompatibility between the interest of two of a lawyer’s clients such that the lawyer is disqualified from representing both clients if the dual representation adversely affects either client.”


In the light of the understanding of these definitions, is the propagation or the promotion of the Rule of Law which is the gravamen of any democracy in conflict with National Interest in a constitutional democracy? I think NO.

It is my submission that without the Rule of Law there can be no democracy because democracy itself is founded on the Rule of Law. To the extent that the word ‘National Interest’, as understood, is not capable of one definitive meaning, I submit that it must be made subject to the Rule of Law. In other words, if everything must be done in accordance to the Rule of Law, whatever is held to be of National Interest must of necessity pass the test of the Rule of Law. No room for impunity, little or no discretion, no dictatorship, arbitrariness, authoritarianism, abuse or misuse of power. It is also significant to mention that there must be a strict adherence to the provisions of the Constitution.


As a Legal Practitioner, I will go as far as to submit that compliance with the provisions of the Constitution is not only in the National Interest of our Nation, it is also a veritable guarantee for National Security. In the words of the Supreme Court, in the case of Attorney-General of Ondo State v. Attorney-General of the Federation: [xii]


“Our Constitution is an organic instrument which confers powers and also creates rights and limitations. It is the supreme law in which certain first principles of fundamental nature are established. Once the powers, rights and limitations under the Constitution are identified as having been created, their existence cannot be disputed in a Court of Law. All agencies of government are organs of initiative whose powers are derived either directly from the Constitution or from laws enacted thereunder.”[xiii]

Also, in Attorney-General of the Federation v. Attorney-General of Abia State & 35 Ors,[xiv] the Supreme Court stated abundantly that:

“The fountain of all laws is the Constitution. It is the composite document setting out how the Country is to be held together. It is not a document to be read with levity or disdain. Every section must be given its meaning… it is the very foundation of the Nations existence.” [xv]


My submission therefore is that uncompromising obedience to the provisions of Constitution and due process is of National Interest. So also, obedience to Court Orders and Judgments which are principal and fundamental principles of Rule of Law in a constitutional democracy, is not only in the National Interest of our Nation but it is also a guarantee of National Security and Stability.


In my humble opinion, a threat to Rule of Law is a threat to National Interest. Every citizen of the Country is entitled to the enjoyment of his fundamental Human Rights and freedom as enshrined in Chapter Four of the Constitution of the Federal Republic of Nigeria, 1999, as amended. These rights include but are not limited to right to life,[xvi] right to dignity of human person,[xvii] right to personal liberty[xviii] including a right to be released from custody or granted bail if he is not tried within two months from the date of his arrest or detention and a right to be released either conditionally or unconditionally if he is not tried within three (3) months from the date of his arrest or detention in the case of a person who has been released on bail.


We also have rights such as right to fair hearing[xix] and more fundamentally the Constitutional imperative that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty in pursuant to Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. These rights and many others contained in Chapter Four of the Constitution, I submit, exist for both the conformists and the non-conformists in the society.


Quare! How far have we been able to comply with these constitutional provisions by our conducts and actions? For example, a lot has been said by members of the public, both lawyers and non-lawyers alike, about the continued detention of Omoyele Sowore and his co-defendant, Bakare, who were arrested sometime in August 3rd 2019 and charged with treason, money laundering, cyber-stalking and harassing the President. They were granted bail on September 24, 2019. As at the time of writing this paper, on the 3rd of December 2019, they are yet to be released in accordance with the subsisting Order of a Court of competent jurisdiction. Another example is that of Dazuki who was similarly arrested on December 1, 2015 for allegedly stealing Two Billion, One Hundred Million Dollars (USD 2,100,000,000.00). His first bail was granted on August 30, 2015 by the F.C.T. High Court, Abuja.


Several other Judges have similarly granted bail or confirmed the earlier bails granted. Most strikingly, on the 2nd of July 2018, a Judge of the Federal High Court described Dazuki’s continued detention as an aberration of the Rule of Law. On July 13, 2019, the Court of Appeal affirmed the bail granted by the lower Court and even awarded damages against the Federal Government for holding Dazuki against the provisions of the Constitution. As we speak, Dazuki is still in detention. Mention must also be made of Ibrahim El-Zakzaky and another who were arrested in December 2015. Up till now their trial has been going forward and backward. Yet, Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, as amended guarantees speedy and expeditious trial.


I believe some of you will recall a number of massive protests by the Shiite group, the followers of the detained leader. Such protests some of which have rarely recorded violence are certainly not in favour of our National Interest. These are major cases which have attracted both local and international condemnations. There are several cases of this nature of lesser mortals in our society. I have gone this far to demonstrate the symbiotic relationship between these terms. 



As lawyers, we do know that the Constitution of Nigeria is very clear, unambiguous, uncompromising and categorical about the rights of its citizens both those who are on the right side of the law and those who are reasonably suspected of being on the wrong side of the law, when it comes to matters of the curbing or curtailing its citizen’s rights, it does not leave us in any doubt as to what should be done or as to how we should proceed nor does it leave matters to chance or to the discretion of individuals who may be inclined to subject such inalienable or immutable rights to abuse. These are the immutable words of the Court of Appeal in the case of Akila v. Director-General State Security Services and Others.[xx] See also Adesanya v. President, Federal Republic of Nigeria.[xxi]


As a Legal Practitioner, trained under the Common Law tradition, it is my considered view that disobedience to Court Orders and Judgments constitutes a veritable threat to National Interest and National Security. It is also a blatant violation of the Rule of Law. May I also add that it is a threat to sustainable democracy.


CONCLUSION

Let me remind myself that this is a dinner speech which is not supposed to be full scale lecture, otherwise the food gets cold and appetite gets worse. Let me therefore conclude that survival of democracy in Nigeria is a matter of National Interest, not only to our policy-makers or people in government but also to everyone including and in particular all lawyers in this Country. The bedrock of any democracy is the Rule of Law. So sustainability of democracy and Rule of Law in Nigeria are matters of paramount National Interest. I do not see any of them conflicting with the other. Indeed, one advances the course of the other.


May I conclude by quoting the erudite and affirmative pronouncements of Honourable Justice Niki Tobi in the case of Onagowura v. Inspector-General of Police [xxii] that:

“Nigeria is a democracy and by the grace of Almighty God, it will remain a democracy for all times. The foundation of any democracy is anchored on the Rule of Law, both in its conservative and contemporary meaning. Putting it naively, we are paid mainly and essentially to uphold the Rule of Law in the entire polity. And so, once we fail to uphold the Rule of Law, anarchy, despotism and totalitarianism will pervade the entire society. The social equilibrium will be broken. Law and Order will breakdown. Everybody will be his own keeper and God for us all (as in the animal kingdom). We as Judges cannot afford to see society decay to such an irreparable level. We must rise up fully to our duties by vindicating the tenets of the Rule of Law in our practised democracy.”


May God bless all the Justice Niki Tobis’ that are still in our judicial system today.


Permit me to leave you, both our Judges and lawyers that are here, with this challenge, that our Judges should be guided by the Rule of Law, protect and resist any encroachment on your independence as Judges. For us as lawyers, we must preserve the independence of our profession, assert the rights of the individual under the Rule of Law and insist that every accused is accorded fair trial.


It was James Maddison, the President of the United States of America, from 1809 – 1817, that said: “When tyranny and oppression come to the land, it will be in the guise of fighting crime.”


We cannot afford to shy-away from our responsibilities; neither can we sit on the fence in the affairs of our Country. Frank Fallon said that: “If you are an onlooker, you are either a coward or a traitor; at best you are a spectator.”

Ours is a developing democracy in a developing society, we are far away from the United Kingdom and the United States of America in terms of development, both as a society and as a democracy. As Lawyers in a developing society, therefore, we must be guided by the immortal words of Kenneth Kauda, former President of Zambia, made in January 4th 1962, that:

“The lawyer in a developing society must be something more than a practising professional man; he must be more even than the champion of the fundamental Rights and Freedom of the individual. He must be in the fullest sense a part of the society in which he lives and he must understand that society, if he is to be able to participate in its development and the advancement of the economy and social well-being of its members.”

I thank you very much for listening, God bless you.

Dated 4th of December, 2019





Dele Adesina SAN FCI. Arb

Principal Counsel

Dele Adesina LP

109 Opebi Road, Ikeja Lagos

E-mail: deleadesinasan@yahoo.com

Telephone: +234 803 302 9055





END NOTES

[i]     Dele Adesina is a Senior Advocate of Nigeria; Past General-Secretary, Nigerian Bar Association; Life Member, Distinguished Body of Benchers; Immediate Past Pro-Chancellor and Chairman Governing Council, Ekiti State University; and, Principal Counsel in the Chambers of Dele Adesina LP.

[ii]    National Industrial Court of Nigeria Brochure for Retirement Ceremony of Honorable Justice B.A. Adejumo, OFR on September 30, 2019.

[iii]    An Act to alter the Constitution for the Establishment of the National Industrial Court under the Constitution at No. 3 of 2010.

[iv]    Psalms 119 verse 144.

[v]        http://rcmss.com

[vii]       Governor of Lagos State v. Ojukwu [1986] 1 NWLR (Pt. 18) 621 at pg. 636.

[viii]      Governor of Lagos State v. Ojukwu [Supra]

[ix]       Keynote Speech of His Excellence, Judge Bola Ajibola LL.D, SAN, Past President of the Nigerian Bar Association (NBA) at the NBA Lagos Branch 2003 Law Week.

[x]        The Oxford Advanced Learner’s Dictionary, Sixth Edition, at page 239.

[xi]    Black’s Law Dictionary, 9th Edition, at page 341.

[xii]       [2002] 9 NWLR (Pt. 772) 221.

[xiii]   [2002] 9 NWLR (Pt. 772) 221 at pp. 418 – 419.

[xiv]   [2001] 11 NWLR (Pt. 725) 689.

[xv]   [2001] 11 NWLR (Pt. 725) 689 at pg. 736.

[xvi]   Section 33 of the CFRN, 1999, as amended.

[xvii] Section 34 of the CFRN, 1999, as amended.

[xviii] Section 35 of the CFRN, 1999, as amended.

[xix]   Section 36 of the CFRN, 1999, as amended.

[xx]   [2014] 2 NWLR (Pt. 1392) 443 at p. 463.

[xxi]   [1981] 5 S.C. 113.

[xxii]     [1991] 5 NWLR (Pt.173) 593 at p. 650.



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