Let’s not get it wrong. President Muhammadu Buhari did not blindside us with the rule of law discharge. From many comments, including the sapient intervention from Professor Wole Soyinka, the president emerged as though plotting a stealth outburst of cannonades on human rights.
We don’t have to look to see that we have been bleeding inside our bones. We don’t need to expect another blow. In the words of a character in Shakespeare’s play, King Lear, we can “see it feelingly.” If it happens later, it is not because we needed an ominous reassurance of the coming reign of terror. Buhari is not a stealth bomber. He is a B-2 Bomber, telegraphing the doom ahead of its evil hour. If you don’t see, it is because you are not looking, or you are not hearing.
When he remarked that the national interest superseded the rule of law, he was speaking from an instinct. He was echoing what he was already doing and what he understood by the rule of law. He was not asking anyone to agree or disagree. He was not throwing the matter open for debate. He was just making what he saw as a routine affirmation of tested truth.
It was a written speech. So, it was no accidental discharge. His intellectually vacant attorney general must have seen that cave man’s justice in a presidential speech of the 21st century, and he let it go.
The tested truth Buhari learned when he was in the army. The Nigerian Army, rooted in the old hierarchy of colonial logic, saw the state as the first estate. The state made the laws, and the laws were subject to the state. He served in the army cut out of the Prussian era of the 19th century. It was an army with a state and not a state with an army. The army saw itself as the creator of the state, and the state then created the laws. How could the national interest of such a state be subject to the rule of law when the rule of law was the baby of a cabal in power?
Nor is Buhari alone. Our political elite is not innocent. The APC at the moment is in the grips of a philosophical crisis as to whether to adopt direct or indirect primaries. Our elite find it difficult to form a consensus on what values should undergird our laws. So, how could they agree on a law or set of rules? Laws for our leaders are not essentially about values, but interests. In such a scenario, rule of law, or the law of rules, will matter only to the extent that they fondle their interests.
Buhari comes from two traditions that make such a contempt for the rule of law feel like a force of nature. Apart from the army, it is the feudal background. In such cases, it is easy to understand that he sees the supremacy of what he calls national interest as preceding the law. It has always been so in this country, even under our so-called democratic presidents. John Adams described the America as a nation of laws and not of men. His world view is the opposite, just like most of our political elite.
Obj did that when he was president. Jonathan did so when he was president. Buhari is doing so now. They define national interest in their own rights. They privatised the definition of the interest, and go ahead and act with force. They don’t see it as impunity but the anguished majesty of the law.
In the case of Sambo Dasuki, whatever he has done wrong, is perceived as against the nation’s interest. If the law courts are disobeyed, it is because the law is foolish, and they who made the law are wiser. If El Zak Zaki remains under lock and key, it is because John Locke’s concept of law and liberty make no sense except in the English or European provenance where the philosopher conceived it.
We need to free our democracy for democracy’s sake. We have not understood the power of law over individuals, even if that individual is the president. That is what is still malignant in this democracy. The strong man edges out the small man because he contains the law. The law was made for the big man and not the big man for the law.
History has recorded cases where the law was abandoned in democracies. One of such was during the Second World War in the United States. Under President Franklin Roosevelt, Japanese Americans were swept into camps because the United States was at war with Japan. But the Japanese were citizens like any other Caucasian. But Roosevelt saw it differently. The nation was largely quiet. It was a gross violation of individual liberty and the sovereignty of human rights. Today, the Caucasians conveniently lament that episode. The second was during the American Civil War, and Abraham Lincoln suspended the habeas corpus. Habeas corpus is a writ that requires a person who has been arrested to be brought before the court. Lincoln saw this as a luxury in war just as the fear in Roosevelt prompted him to intern the Japanese Americans.
The difference between what Buhari is doing and what Lincoln did was that Honest Abe sought Congressional approval. Roosevelt invoked his executive order, and put over 110,000 persons in concentration camps.
It shows that democracy is very fragile and one man can amass coercive powers and it could seem legitimate. In the 1960’s, historian Arthur M. Schlesinger called it “the imperial presidency,” but it dates back to the age of President Andrew Jackson, the role model of Trump in his fever of xenophobia and white supremacy. Such powers are in vogue these days from Donald trump in the United States to Duterte in the Philippines. It is nothing new today, but it has taken over the psyche of desperate masses in what Yale professor David Runciman describes as “zombie electorate” in his new book, How Democracy Ends. Law is in danger of the mob today because a popular leader can suspend a law and the people will follow.
This undearmines the purpose of the rule of law. On the surface, the argument is that the law belongs to the people, and if the majority agree with the suspension of a law or a roguish update of its meaning, then actions taken by the new interpretation are legal. Especially if you get judges to back you up. Clever dictators don’t undermine the law, they remake them. That is what is dangerous. From the preventive detention act of the first republic and in several African countries in the 1960’s to decree two. When Buhari said, “the press? I will tamper with it,” he found a law to justify it. Rule of law is great, but whose rule of law before we ruin it?
Mussolini, Hitler, Franco, even apartheid had what you may call popular governments, and their laws, however savage, trumped all common-sense approaches. That is why some political philosophers have called for what is termed epistocracy, which is system based on knowledge. But who determines when the electorate is wise or foolish? John Stuart Mill believed in this, but modern democracies are not fuelled by logic but sentiment. Is it a death knell for democracy, or it is just a puff that will pass away? It is good to fight for the rule of law, but let us know the law first. As Thoreau said, “the law never made anyone a whit more just,”
Our own democracy is looking more like a “dumbocracy” than an epistocracy, and in that sense we are no different from what is prevailing in the world. Poverty is playing a big role in this, and our politicians are exploiting this cynical feast.
Lalong vs Dalung
The names sound almost the same. They have two phonemes. One starts with an L and the other with a D. In the second part of the name, they sound the same, except that one is spelt with an O and the other with a U. They hail from Plateau State, and they are both politicians. Both are as far apart as their names are close. The first is Simon Lalong, Plateau State Governor. The other is Solomon Dalung, sports minister.
But it is Dalung that is long on foolishness. It beats me why Buhari has not fired this disgrace in the Federal Executive Council. This is the man who has disgraced Nigerian football, disdained the rule of law, flouted the codes of international soccer and FIFA and thrown soccer in chaos. As if that is not enough, he has the shameless boldness to speak on violence in Plateau, stoking the blame on his not-namesake.
Quite a few days before the rise of violence, the state warned that some people were trying to revive violence for political reasons, and we saw the series of killings afterwards. What is Dalung doing in the centre stoking the flames in his own state by throwing rhetorical flames at Gov. Lalong? The violence ought to be handled by the Federal Government of which he is a part, and if politics is in the heart of it, he should be part of the solution. Shame indeed.