Balancing Human Rights and National Security (1)
by Festus Okoye
There is a thin line separating respect and observance of human rights and its consequent violation on grounds of national security.
Respect, observance and enforcement of human rights by the state is not a function of optional charity but underlines the goodness of open societies founded on the rule of law and due process.
Sometimes, the progress and stability of countries are measured and anchored on their human rights record and countries that serially violate the rights of their citizens are classified as pariah states.
Of course, it is not always easy to respect and observe the rights of the people especially in countries with a history of conflict, economic and political challenges. In such societies, the state is always tempted to rule outside the law and the constitution. It is on this score that modern constitutions recognize the primacy of respect and protection of the human rights of the citizens and the need to carefully and restrictively derogate from the observance of human rights on grounds of national security.
The framers of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) recognize the fact that the government and some of its institutions and agencies may abuse the exceptions to the fundamental rights in Chapter IV of the Constitution and on that score decided to vest the power of maintaining the boundaries of the rights in a different organ of government.
In other words, the framers of the constitution did not give any individual or institution the option to capriciously derogate from the fundamental rights of the Nigerian people.
The constitution on its own delineates the parameters under which the fundamental rights of the citizen can be abridged and gives only to the judiciary the power and mandate to determine when and whether the institutions of government have exercised their powers within the parameters of the law.
One remarkable aspect of the Nigerian Constitution is that section 46(1) protects anticipatory breach of rights and provides that any person who alleges that any of the provisions of Chapter IV has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress while section 46(2) provides that subject to the provisions of the Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcement or securing the enforcement within that State of any right to which the person who makes the application may be entitled to.
Those exercising executive powers in the government are fully aware that the judiciary is the only arm or organ of government vested with the power of pronouncing the actions of government or any of its agencies as constitutional or unconstitutional.
It is therefore an incongruity and patently unacceptable for an individual to vary the orders and judgement of a court of law and mock the judiciary by declaring that the executive arm of government is the repository of judicial powers.
I make these preliminary comments bearing in mind the pronouncement of my good friend Garba Shehu, the Senior Special Assistant to the President on Media and Publicity and Alhaji Lai Mohammed, the Hon. Minister of Information and Culture on why Sheikh Ibraheem Zakzaky, the leader of the Islamic Movement in Nigeria (IMN) and Col. Sambo Dasuki are still being held in detention.
Garba Shehu posited while addressing State House Correspondents on Tuesday the 23rd day of May 2017 that the Federal Government of Nigeria is still holding Dasuki because there are additional charges against him for which he has not been granted bail.
He stated that security agencies were still conducting investigations on some allegations against the ex-National Security Adviser and this forms the crux of his continued detention.
On Zakzaky, the leader of IMN, Shehu asserted that he is still in detention for his own safety.
He further stated that the government fears that there would be a breakdown of law and order if Zakzaky was allowed to go home as “Government has a responsibility to ensure his safety”.
He pointed out that Zakzaky “is not in a prison type of detention. “He is in the company of his wife and children voluntarily” and that “government is being compassionate on this matter.
There is an overall public good that government is looking at in this matter.” The Minister of Information and Culture, on his own part, spoke in the same vein.
Featuring on Osasu Show, the minister stated that: “Every government will balance national security with human rights; every country in the world. It is the level of the balancing.
As a government, I will balance national security against human rights; and then I will take a decision. Because there is security, there is stability that the courts also exist.
What I am saying (is) that the court has ruled but the court does not have the entire picture when it comes to national security. I am a lawyer too; therefore, I have utmost respect for the judiciary.
“You can’t pick two, three cases which bother on national security to condemn a whole government and say this government is a government of impunity. How many cases are determined daily in Nigeria? I still say every government has that right to balance national security.”
I do not have sufficient information on the trajectory of the cases involving Col. Dasuki.
The cases involving him and those he is involved in have traversed domestic and regional courts and I have lost count of the number of bail applications filed and granted and or refused.
I am only aware of the fact that he has been arraigned before a properly constituted court of law and granted bail and that bail has not been honoured. I am also aware that he filed a suit before the ECOWAS Court and the government has not honoured the judgement of the ECOWAS Court.
In the case of Zakzaky, he has never been confronted with any allegation of the commission of any offence known to the laws of Nigeria or unknown to the laws of Nigeria.
He has never been arraigned before any court of law in Nigeria or outside Nigeria. He has repeatedly pleaded to be charged to court if he has committed any offence and his request has been turned down.
He has repeatedly pleaded to be allowed to seek medical attention to prevent the loss of both eyes and his request has been turned down.
In the absence of any other option, he approached the Federal High Court Abuja for the enforcement of his fundamental right and the Federal High Court ordered for his unconditional release.
Now Garba Shehu, the Senior Special Assistant to the President on Media and Publicity is not a lawyer but Lai Mohammed is a senior member of the Bar.
I am willing to make excuses for Garba Shehu for thinking that the judgement of a Court of Law can be edited, abridged or varied by the Executive branch of government on grounds of national security interests.
But I am sure that he knows that constitutionally, the powers that the Executive, the Legislature and the Judiciary wield are the powers of the Federal Republic of Nigeria and that no branch of the government can or is permitted to assume superiority in terms of knowledge of national security issues and interests over other arms of government.
However, I am not ready to make or offer excuses for the Honourable Minister of Information and Culture in relation to the casting and profiling of the issues surrounding the continued detention of Zakzaky and his wife. As a lawyer, the Honourable Minister knows the law and the constitution.
The minister has been in the barricade in defense of the fundamental rights of the citizens of Nigeria to free speech and freedom of association. So what has changed and what has led to the balancing and editing of the powers of the judiciary by the executive branch of government?
What are the facts and what are the issues relating to the continued detention of Zakzaky and his wife, Zeenat Ibrahim?
Did the office of the Attorney General of the Federation that represented the Department of State Services (DSS), the Police at the Federal High Court, Abuja canvass the issue of state security and protective custody before the court? What orders did the court make and why is it difficult for the government to obey the orders of a properly constituted court of law?
What are the implications of the refusal of the government to obey the orders of its own court?
*_to be continued_*
This discourse was published in:
*New Telegraph Newspaper*