Balancing human rights and national security (4) by FESTUS OKOYE

*REFLECTIONS:* *#FreeZakzaky Campaign Committee today brings the fourth and concluding part of a series of four articles that thoroughly analyzes the judgement of the Federal High Court, Abuja ordering the release of Sheikh Zakzaky and the incoherent contemptuous reaction of Buhari’s government through his aides. Analysis was by Festus Okoye, one of the lawyers standing for Sheikh Zakzaky and the Islamic Movement in Nigeria. Happy reading* 👇🏼

*Balancing human rights and national security (4)*



Human rights are not esoteric concepts removed from the reality of human existence. Rather, they are the anchors on which our common humanity can be assessed.
The framers of the Nigerian constitution imbibed the lessons of history on the importance and threshold of human rights in human existence and decided that the human rights of the Nigerian people must be entrenched in a written document and made “fundamental”.
The framers of the Constitution decided against leaving the question of human rights protection in scattered legislative instruments and the pronouncements of Superior Courts of Record. This is on account of their projection, belief and assumption that Nigeria is a dangerous mix of ethnic nationalities and religious persuasions and that it will be dangerous to leave the respect for human rights, its protection and enforcement in the hands of the new political leaders with shifty political, ethnic and religious alliances. It was on the basis of this and other reasons that prompted the entrenchment of human rights in the Nigerian constitution. The framers of the Nigerian constitution also created a separate chapter for what they christened “fundamental rights” and bundled them together in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The founding framers of the constitution went further to set out in clear terms the rights they regard as fundamental and the parameters of those rights and those that are entitled to enjoy them. Since society is dynamic and made up of people with diverse interests and orientations, the framers of the constitution also created and delineated conditions for the derogation and restriction from fundamental rights. In other words, the framers of the Constitution on their own determined under what condition or circumstances the rights of the individual can be derogated from and inserted the circumstances under which derogation can take place. Some of the derogatory exceptions include issues around defense, public safety, public order, public morality, or public health. They also made it possible for fundamental rights to be derogated from for the purpose of protecting the rights and freedom of other persons. However, any law that imposes restriction and derogates from the rights entrenched in chapter IV of the Constitution must be justifiable in a democratic society.
The framers of the constitution went further to make the process of alteration of chapter IV of the constitution difficult and to a certain extent cumbersome. They reasoned that a political party may come to power with a dubious ethnic, religious or ideological philosophy and with a contrived majority in the National and State Assemblies set out to change the fundamental rights landscape of Nigeria. Based on this, section 9 of the same constitution makes the process of altering chapter IV of the constitution very cumbersome. While other provisions of the constitution can be altered with two-thirds majority of members of the National Assembly and the concurrence of two-thirds of the members of the State Assemblies, altering Chapter IV of the constitution requires the votes of four-fifths of the members of the National Assembly (both dead and alive) and the concurrence of two-thirds of all the state assemblies.
The framers of the constitution also insisted that an individual must not wait for his or her rights to be infringed upon or violated before going to court to seek redress. They created three categories of violations. There is the anticipatory violation, the continued violation and the violation of rights. The implication is that anybody that anticipates that the state or any of its organs or agencies is planning to violates his or her rights or is creating the circumstances and scenario for the violation of his or her rights is free to approach the courts and seek redress. The same applies to any person that believes that his rights have been violated. In this regard, there is the possibility that the right has already been violated and the persons goes to court to seek for declaratory reliefs giving judicial stamp to the fact that what has taken place is a violation of rights. There is also the violated right that is still ongoing. This entails seeking the orders of the court to declare the ongoing violation as unconstitutional and seeking the protection of the courts against further violation.
Now, the Nigerian people and all those that fought for the entrenchment of fundamental rights in our constitution and those that inserted the rights in the constitution did not give the legislature and the executive branches of government interpretative and adjudicatory powers. Rather, the Nigerian people still insisted on separation of powers and gave the legislature the power of law-making and appropriation and the executive, the power of executing laws for the peace, order and good government of Nigeria.
While section 6 of the Nigerian Constitution domiciles and vests the judicial powers of the Federation in the courts, section 46 of the same Constitution goes further to provide that a High Court (and the Federal High Court) shall have original jurisdiction to hear and determine any application made to it pursuant to the provisions of Chapter IV of the Constitution and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right which the person who makes the application may be entitled under Chapter IV of the Constitution.
Therefore, only the courts are empowered to determine whether the acts of the Executive or any of its organs or agencies are constitutional and have been exercised in accordance with the law and the constitution. Only the courts can make a determination that the detention or continued detention of a person has been done within the narrow derogatory parameters of defense, public safety, public order, public morality, or public health or for the purpose of protecting the rights and freedom of other persons.
It is not within the province of the executive or any of its organs or agencies or departments to insist that their interpretation of national defense imperatives is right and must override the clear pronouncement, orders and judgements of superior courts of record. Anarchy and lawlessness and descent to despotism will become the fate of the society the moment the executive branch of government takes over the mandate and power of exercising judicial powers and interpreting the provisions of the constitution and the law.
Even during the worst period of military dictatorship in Nigeria, the courts continued to exist. The military suspended some of the fundamental rights provisions and sought to make the courts muted trumpets, but the Nigerian people fought them and the courts continued to protect the fundamental rights of the citizens.
Under a civilian democratic dispensation, it is assumed that we can take it for granted that fundamental rights can be maintained and respected. Derogating from fundamental rights and allowing such derogation to become the norm is an invitation to creeping dictatorship and this must not be allowed in our country. Serial disobedience to the orders and judgements of courts of law has national security implications and scares away investors. It is a mark of strength and the growth of and sustenance of democracy for the executive branch of government to obey court orders. It is a sign of democratic weakness and deficit for the executive to cut corners with the rule of law and due process.
As pointed out by the Supreme Court of Nigeria in the case of Gov.; of Lagos State v. Ojukwu (1986)1 NWLR (Part 18)621. “The court system cannot be maintained without the willingness of parties to abide by the findings and orders of a competent court until reversed on appeal. This presupposes that no party and no court of subordinate or even coordinate jurisdiction can say:- “I do not like the order made and I will not obey it”.
“The Nigerian Constitution is founded on the rule of law; the primary meaning of which is 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 power which Coke colourfully spoke of as ‘golden and straight metwand of law as opposed to the uncertain and crooked cord of discretion’ (See 4 Inst.41).

This discourse was published in:
*New Telegraph Newspaper*
_Sanctity of Truth_


*Brought to you by #FreeZakzaky Campaign Committee, June 2017.*

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