‘HOW TO FOSTER RELATIONS BETWEEN LAWYERS AND SECURITY OPERATIVES’
In this paper presented at the 1st Hybrid Townhall Meeting organized by the Nigerian Bar Association Security Agencies Relations Committee (NBA-SARC) on the theme, “Lawyers, Security Agencies and the Rule of Law,” MR. MELA AUDU NUNGHE SAN argues that the NBA through its committees and in collaboration with the authorities should focus on sensitizing lawyers and security operatives on the need to foster the rule of law by maintaining cordial relations
ENHANCING RULE OF LAW THROUGH HARMONIOUS COLLABORATION BETWEEN LAWYERS AND SECURITY AGENCIES: PROSPECTS, CHALLENGES AND THE WAY FORWARD.
Mela Audu Nunghe, SAN
Founder & Principal Partner, Samkong Chambers
Mela Audu Nunghe, S.A.N & Co
79, Ebitu Ukiwe Street, Jabi, Abuja
Paper presented at the 1st Hybrid Townhall Meeting on the theme: Lawyers, Security Agencies and the Rule of Law.
Organized by the Nigerian Bar Association – Security Agencies Relations Committee (NBA-SARC)
Held at the Auditorium, NBA National Secretariat, Abuja/Virtual.
On Tuesday, April 5, 2022 by 12:00 noon
The rule of law is a liberty centered constitutional concept which rides on the compelling conclusion that everything must be done in compliance with and according to the law. This assertion renders it abundantly obvious, that the composition of the key players in the quest to enhance, entrench and sustain this concept, consists of the ministers in justice’s own temple who must at all times observe, uphold and promote the rule of law by virtue of their calling as legal professionals on the one hand, and the agencies who are saddled with the statutory mandate to enforce and ensure due observance of the law in all of human transactions in a democratic society , on the other hand – hence, lending credence to the fact that there can be no overstating the need for the maintenance of continuous harmonious interrelationship between them in order to constantly adhere to best democratic practices prevailing in civilized nations, enthrone the ends of justice, respect and protect fundamental rights of citizens, maintain law, order, secure and peaceful co-existence and invariably, guarantee growth and economic emancipation in any given polity (in this context, Nigeria).
Historically, there is no exactitude of date as to when the concept was first formulated as a legal or philosophical construct. However, as a phrase, it was adopted as far back as the 17th Century but as a classical concept it is arguably linked to the ancient Greece nation and in its present form and content, it is an acceptable politico-legal phenomenon which transcends the boundaries of societies and attained universal uniformity as the conception that no one single being is immune to the law. In the same breadth, the concise meaning of the concept is as yet elusive, thus compelling the conclusion that it is an elusive construction which has over the years given rise to rampant divergence of understandings. Although, the consensus has been long formed that the modern exposition of the rule of law be credited to Albert Venn Dicey, KC, FBA,(Usually cited as A.V. Dicey).
Against this background, this paper undertakes to underscore some of the various meanings and interpretation ascribed to the rule of law, pointing out its key characteristics and the extent of its application in the Nigerian context with a view to expounding the necessity of ensuring a formidable and healthy or harmonious collaboration between legal practitioners and security agencies towards enhancing cum entrenching its subsistence, and it x-rays some of the challenges to which it looks at the accompanying prospects and makes recommendations that could serve as signpost for both improvement and solutions.
2.0 MEANING AND CONCEPT OF THE RULE OF LAW
The rather commonly cited phrase ‘rule of law’, subscribes to no universally adopted definition, although, this is not unusual as it is the case with most legal and academic concepts. However, there exist numerous attempted definitions and perhaps, descriptions with which the subject matter has come to be associated over the course of time, by scholars, judicial officers, writers, jurists and even the lawmakers, across jurisdictions and their inherent peculiarities. Little wonder therefore, why it has been succinctly summed up as a “nebulous concept whose meaning and content vary from place to place and time to time”.
Notably still, is the fact that a common denominator is apparent in whatever conceptualization is eventually resorted to, which is that, the rule of law emphasizes the need to sustain an inviolable balance in civilized societies built upon the fundamentals of equity, fair play, justice, good governance and safeguarding of human rights.
In fact, there is to be found in a number of international instruments, provisions touching on some portions of rule of law, for instance, in the preamble to the United Nations Charter, the Peoples of the United Nations reiterate “faith in fundamental human rights in the dignity and worth of the human person, is the equal rights of men and women….” And in a similar vein, Article 1 (3) of the Charter stipulates that one of the purposes of the establishment of the United Nations is the “promotion and encouragement of respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion” (a replica of this provision is also contained under Article 2 of the Charter of the African Union).
Be that as it may, the rule of law presupposes the notion that in order for a given society to function properly, orderly, fairly and even smoothly, all of its members who constitute the fabric of its legitimate existence, must, at all times, agree to and accordingly abide by a common and binding set of rules, called the ‘law’.
According to Malemi, the “rule of law is the observance, application and supremacy of civil or regular laws as opposed to arbitrary laws and arbitrariness, martial law, emergency law or military rule. It is the law which is reasonably justiciable in a democratic society. Hence, all persons in Nigeria are under Nigerian law or within the Nigerian rule of law.” This perspective appears to lean towards emphasizing the maintenance and upholding of a legitimate legal and political system, recognized, amenable and acceptable to all and sundry as dominant, as opposed to dictatorship or imperialism.
To Ben Nwabueze, the rule of law is not just a doctrine about legality; it is not just a requirement that all executive actions of government affecting the individual must be backed by, and strictly in accordance with the law. It is a doctrine that requires that within the limits of the law-making power allowed by the higher law of the Constitution, the law must circumscribe the discretion it grants to government in matters affecting the interest of the individual, so as to curtail much as possible the scope of governmental arbitrariness. Hence, the rule of law is the pillar of constitutional democracy of great importance.
In the Black’s Law Dictionary, rule of law is defined as the supremacy of the regular law as opposed to arbitrary power and that, every person is subject to the ordinary law within the jurisdiction. This bears allusion to the understanding that, as a constitutional abstract, the rule of law is manifest as the bedrock of governance which demands that both the superior authority (government) and the subjects (citizens and institutions) must always conform with the dictates of the law and their actions must be legally justifiable. And in addition, that the affairs of government be carried on in a manner that does not overlap the bounds of recognized and acceptable framework of rules and principles which prevents the unfettered exercise of discretionary power–“a golden and straight net weight of law as opposed to the uncertain and crooked cord of discretion”.
Lending his learned wits to the discussion, John Locke expounded that the idea of rule of law is vividly captured in the postulation that:
“freedom of men under government is to have a standing rule to live by, common to everyone of that society and made by the legislative power created in it, and not to be subject to the inconstant, unknown arbitrary will of another man.”
In the year 1959, the connotation of rule of law was yet again elaborated in Delhi by the International Congress of Jurists which had in attendance 53 countries represented by 185 judges and lawyers, and at the close of event, the adopted definition of rule of law is, that it is:
“a dynamic concept for the expression and fulfillment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized.”
The foregoing definition is all-encompassing and one that took a sharp departure from the conventional presupposition of the concept which dwelt mainly on political and civil rights, to now embrace in addition, socio-economic, educational and cultural rights, hence, presenting a modern-approach definition.
In the case of Arthur Yates & Co. Property Ltd. v. Vegetable Seeds Committee, the court, per Herring CJ enunciated that:
“It is not the English view of law that whatever is officially done is law… on the contrary, the principle of English law is that what is done officially must be done in accordance with the law.”
As if to re-echo the above dictum, the Nigerian Court in the celebrated case of Shugaba v. Minister of Internal Affairs held inter alia that the rule of law ensures equality of all persons without any distinction, that it also guarantees transparency and incorruptibleness and must be preferred.
Flowing from the collection of meanings and expositions ascribed to the concept of the rule of law, what becomes glaring is that it is impossible to draw out a single variable which adequately sums up and clarifies the central idea behind it. Suffice it to submit then, that the concept of rule of law will be best appreciated by reference to three major indicators as postulated by A. V. Dicey, which though, are not without their shortcomings but are apt for our discussion and will thus be succinctly examined.
2.1 TRIPARTITE INDICATORS OF THE PREVALENCE OF RULE OF LAW
In his lectures at the University of Oxford, the Vinerian Professor of English Law, A. V. Dicey, professed the famous tripartite indicators of the existence of rule of law in any given society; supremacy of the law, equality of all before the law and individual rights guaranteed by the Constitution.
2.1.1. Supremacy of the Law
According to Dicey, “the rule of law means in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government… a man may be punished for a breach of law, but he can be punished for nothing else”.
Elegantly eloquent as Dicey’s first indicator seems, it has been heavily faulted on the ground that not only is the adoption of the term ‘regular law’ too ambiguous to discern especially in the Nigerian context, reference to the phrase ‘arbitrary power’ is also unfitting as it could be considered subjective in context given the fact that arbitrariness comes into play where the executive applies its powers in a manner not authorized by law or conducts itself beyond the parameters set by the law, but then, confusion arises when an executive may though be permitted under regular law as conceived by Dicey but still runs contrary to the supreme law of the land (being the Constitution), the most common example being military decrees and promulgations in Nigeria.
2.1.2 Equality before the Law
Laying emphasis on this principle, the Professor maintained that every citizen, inclusive of government officials, must be subjected and amenable to the jurisdiction of the ordinary courts of the land. Specifically, he averred that “the rule of law means equality before the law or the equal subjection of all classes and manners of persons to the ordinary law of the land administered by the ordinary law court.”
Respecting court orders, observance of the due process of law, fair and equitable treatment of all parties before the court, unbiased rulings and judgments, judicial activism, absence of fear, favor or friction in the timely administration and dispensation of justice among others, would all conveniently constitute components of the idea of equality before the law. For instance, in the case of Governor of Lagos State v. Ojukwu the supreme court extensively reaffirmed the compelling necessity to respect and obey court orders and accordingly stated among other considerations, that “it is a very serious matter for anyone to flout a positive order of a court and proceed to insult the court further by seeking a remedy in a higher court while still in contempt.”
Regardless, this second ambit of Dicey’s components of rule of law, has also been criticized on the basis that the idea of treating everyone as equal before the law is both far-fetched and fallacious, because according to Aristotle, “a law that treats equals as unequal denies equality as the law which treats unequal as equals.” This philosophical viewpoint goes to expose that it is ideal but impractical to insist on attaining equal status for every person before the law in a setting where the system, classes and affairs of men are generally unequal, as even the law itself in some cases, directly or indirectly makes it so, by according certain privileges and immunities to a portion of persons over and above others. Not to mention also that there exist, other forms of special purpose courts and bodies which are though not ordinary courts of the land as used in Dicey’s second expression, yet they are saddled with performing judicial or quasi-judicial functions of enforcing the law and determining the rights, duties and liabilities of parties, such as election Tribunals, Code of Conduct Tribunal, Court Martial, Public Complaint Commission and so on.
2.1.3 Individual Rights Guaranteed by the Constitution
Dicey gave a third attribution to the rule of law doctrine by postulating that “the rule of law of the Constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts, that in short, the principles of private law have with us been by the action of the Courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the Constitution is the result of the ordinary law of the land”.
This last assertion has been held as being too narrowed down to the jurisdiction of the United Kingdom which operates on an unwritten Constitution and being Dicey’s place of reference and hence, it is not suited to a country like Nigeria where the fundamental rights of its citizens has been expressly provided for, guaranteed and safeguarded by the Constitution and made enforceable by the Courts (when redress is sought by an individual upon actual or likely violation of their rights, relying on the Constitution) as opposed to being defined or determined by Courts or derived from the actions of the parliament.
In sum, Niki Tobi JSC (of blesseth memory) summed it all up by reiterating in laconic terms that the rule of law in eyes of Dicey which though has been brought under criticism in the face of overriding realities of our time and society, still remains the optimum articulation of the concept available. That the rule of law in fact, entails (i) Supremacy of the law over arbitrary power; (ii) Subjecting everyone to the laws of the land and applying sanctions and punitive measures when disobeyed, thus making everyone equal before the law; and (iii) Guaranteeing the fundamental rights of the individual as inalienable and undeniable save as permitted under the Constitution.
2.2 CONTEMPORARY TEXTURE OF RULE OF LAW IN NIGERIA
The contemporary interpretation of the doctrine of law refers to a cluster of ideas, the best known being related to the principle of legality, prescription of procedural standards in the administration of justice, the separation of powers, promotion of material justice and individual rights and the maintenance of public order.
In January 1961 in Lagos during an African Conference on the rule of law, the Former Chief Justice of the Federation, Hon. Justice Ademola Adetokunbo expressed his dissent to the argument that the concept of the rule of law is exclusively an Anglo-American construct and noted in his address before the session that:
“It has been said that the rule of law is mainly an Anglo-American institution, that the concept of ‘government under law’ and such phrases as the ‘supremacy of the law’ or the ‘rule of law’ are all purely western inventions…. The African, it was suggested, might find a third legal system which is neither ‘the rule of law’ nor socialist legality propounded by the communists. But the rule of law is not a western idea, nor is it linked up with any economic or social system. As soon as you accept that man is governed by law and not by whims of man, it is rule of law. It may be under different forms from country to country but it is based on principles; it is not an abstract notion.” (Underlined for emphasis)
Thus, in Nigeria, the 1999 Constitution of the Federal Republic of Nigeria (as amended) has laid down the legal framework for the operation and legitimacy of a democratic government, and thus it recognizes and accommodates, to a large extent, Dicey’s proposition of the triangular representation of the rule of law.
First, the conception of the absolute supremacy or predominance of the regular law as opposed to the influence of arbitrary power in Nigeria is captured under the Constitution by virtue of its Supremacy as enshrined in Section 1 (1) thereof, which provides thatthis Constitution is supreme and its provisions shall have binding force on all authorities and persons through out the Federal Republic of Nigeria.
The foregoing provision implies that powers must be exercised according to the provision of the grundnorm being the fountain of all laws in the land. This is brought to the fore by the conclusion that power must be exercised in conformity with the basic and ordinary laws of the land and the presupposition that there must not be executive lawlessness in any country where the rule of law is in operation. Hence, the law must function independent of any hindrance and all actions be dispensed with in line with the law, that is why the 1999 Constitution renders null and void, the provision of any law that is inconsistent with its provision and that it shall prevail. A very recent case on this point is that of Udeogu v. FRN where the full bench of the apex court held inter alia that “…Section 396 (7) of the Administration of the Criminal Justice Act, 2015 is inconsistent with the Constitution, particularly Section 290 (1) thereof . Therefore, by operation of Section 1 (3) of the Constitution, Section 396 (7) of the ACJA, 2015, to the extent of its inconsistency with Section 290 (1) of the Constitution, is void”. See also, Chief Nduka Adede vs AGF, (Unreported) Suit No FHC/UM/CS/26/22, where Hon. Justice Nyadike held that Section 84(12) of the Electoral Act, 2022 is inconsistent with the provision of section 66(1) (f), section 107 (1) (f), section 137 (1) (g) and section182(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999(as amended), and consequently ordered the Attorney General of the Federation to expunge Section 84(12) of the Electoral Act, 2022 forthwith for its inconsistency with the Constitution.
Secondly, on the principle of equality before the law, although Dicey postulates that it is meant to ensure that all citizens no matter how well connected, rich or powerful – are judged for their actions by the same laws, equally applied. Equality before the law is one of the core ways in which citizens can ensure that government officials, the rich, the powerful and the well-connected do not become a caste apart, yet, the current realities prevailing in Nigeria are in direct contrast to this ideal, as various events have continued to prove the fact that equality before the law only exists on paper but in practical sense, the cost of attaining justice for example, by recourse to the formal adversarial process has been made so prohibitively expensive such that it is out of the reach of the common man, not to add to the raging technicalities, delays, unnecessary adjournments, trickery by lawyers and the excruciation of climbing the courts’ hierarchy from the lower to the apex cadre and the costs associated with each stage visits untold hardship and inequality on the common man , as well as the flagrant disregard for court orders by those in position of authority. In the case of Kalu v. EFCC there was a Court Order on 31st day of May, 2007,restraining the EFCC from arresting, detaining and prosecuting Orji Uzo Kalu, the then Governor of Abia State. But the EFCC went ahead and prosecuted him flouting the Court Order. Therefore, the Counsel to Kalu petitioned the President of the Federal Republic of Nigeria and the Attorney General that the charge against his client was in breach of the rule of law.
On the question of individual rights vis-à-vis the Constitution, the rule of law connotes respect for human rights, it involves respect for and protection of human rights by government, its servants and agents and by everyone in the country. Without human rights there can be no justice, and life is meaningless. Albeit, the provisions of Chapter II and IV of the 1999 Constitution(as amended) essentially contemplates Dicey’s idea of rule of law, but the fact that Chapter II has been made non-justiciable by the provisions of Section 6 (6) (c) thereof, largely undermines the practicability of the absolute application of the rule of law and indirectly reduces the potency of the fundamental rights of the citizens as the two chapters are invariably connected.
3.0 ENHANCING THE RULE OF LAW IN NIGERIA
To promote uniformity in the contextualization, understanding and application of the rule of law, the United Nations Secretary General in his report to the Security Council in 2004, provided detailed analysis bothering on the collective participation of all relevant institutions and authorities in order to enhance, maintain and ensure its near absolute observance across all layers of the societies, as captured in these words:
‘The ‘rule of law’ refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights, norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of the law, separation of powers, participation in decision making, legal certainty, avoidance of arbitrariness and procedural and legal transparency’.
This submission alludes to the practical idea that the rule of law engenders a collection of principles that can only be felt in real sense through the interdependent efforts of law-related institutions in the society in order to inform their structure, reform, operation, monitoring and evaluation. There is quite a plethora of them in the Nigerian architecture but this paper centers on the legal practitioners and security operatives who are regarded as the primary agents of rule of law in the day to day affairs of the human society vis-à-vis their complementarily with each other and with other key institutions and organs to be found in a democratic dispensation.
3.1 ROLE OF LAWYERS AND LEGAL EDUCATORS
In Nigeria, the Bar is made up of all persons who have been duly enrolled and thus qualified to practice law in Nigeria pursuant to the provisions of the Legal Practitioners Act, irrespective of the aspect of the law they specialize in and the capacity in which they choose to practice subsequent to their enrolment; it could be as advocates, solicitors, academics, corporate practitioners, legal advisers, in-house counsel, public officers, judges or quasi-judicial officers or private practice among others. As such, the point must be made emphatically that a legal practitioner is more than merely someone actively engaged in the aspect of litigation or property transactions as generally misconceived by the laymen to mean lawyers.
Accordingly, this discussion centers on the role of the members of the Nigerian Bar Association in enhancing the rule of law, regardless of the capacity or mode in which they practice law but will exclude judicial officers as they are better referred to as the bench.
The role of lawyers in the enhancement and entrenchment of the rule of law has been eloquently summarized by Yusuf O. Ali, SAN thus:
“The last hope of the common man in this nation is in the courts of the land, which are the Temple of justice. The Bar is the collective noun of Lawyers who are in the main, Ministers in the Temple of Justice. Rule of Law is not an end itself, but a means to an end. The end result of Rule of Law is nothing but justice. Rule of law cannot therefore thrive, unless Ministers in the Temple of justice contribute their quotas.”
To this end, some of the roles lawyers are required to play include but not restricted to the following sub-headings:
(i) Upholding and Respecting the Rule of Law: It would be rather paradoxical to hear of lawyers who do not accord and uphold the set of principles governing the basis upon which they conduct their professional pursuit. This explains why Section 2 (1) (c) of the Constitution of the Nigerian Bar Association stipulate the main objective of the bar in no unclear provision by stating that “The promotion of the principle of the Rule of Law including fundamental liberties and the independence of the judiciary”. This commands that lawyers in whatever status they operate must at all times desist from being found wanting in conducts that constitute an affront to the principles of rule of law. For example, instances where members of the noble profession participate in, aid or abate the unlawful prosecution of individuals or their detention without observance of the due process of law, robs rule of law of its objective of enthroning quality before the law and preserving human rights.
(ii) Awareness Creation and Sensitization on the Rule of Law: Lawyers are equally duty bound to create avenue via which the people can be made to fully grasp and appreciate the importance and divergent reaches of the concept of rule of law. Legal educators equally have a pressing role to play in this regard particularly in their teaching and research models by propagating the need to uphold and observe the tenets of the doctrine as a recipe for the maintenance of civilized existence. According to T. O. Elias the only viable means through which lawyers can keep Nigerians well-informed about the rule of law is to break it down in this fashion:
• That the rule of law is an indispensable tool for economic development, orderly advancement and social progress of our fatherland;
• That it is a preservative measure for their moral and cultural improvement; and
• It is the only means through which the unity of the various ethnic groups in the nation can be achieved.
• All known forms of advocacy, activism by lawyers and other civil societies must be directed at practicing obedience or compliance with every letter and spirit of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) first, and other extant laws that are consistent thereof and judicial pronouncements i.e judgments and orders made by competent courts in our land.
(iii) Promoting Human Rights: Actual or threatened Infraction of the fundamental and sacred rights enshrined in the Constitution take place every day to the chagrin of the masses and the seeking of redress for such violations are by law, done in the courts of law, hence the onus is exclusively placed on lawyers who have been given the trust to adequately and promptly secure the granting of reliefs on behalf of the affected party. And this, lawyers must be with fervent vigor and exceptional level of commitment in order not just to restore the lost confidence in the profession but to also serve as an avenue through which the doctrine of rule of law may be fully actualized and enhanced in Nigeria. See James Yusuf Danboyi & 10 others vs COAS & Anor
3.2 ROLE OF THE SECURITY AGENCIES
Some of the security agencies who are at the heart of the application of the rule of law in Nigeria and the role they can and should play in the quest to continuously improve upon and stretch the tentacles of rule of law in Nigeria are here examined.
3.2.1 The Nigerian Police
This agency of the Federal Government is primarily responsible for the maintenance of law and order. The Nigeria Police Force (Establishment) Act, 2020, came in to force on the 17th September, 2020, and it repealed the Police Act, 2004. The general objective of the new Act is to provide an effective police service that is based on the principles of accountability, transparency, protection of human rights, and partnership with other security agencies.
In fact, the role of the Nigerian Police in the promotion of rule of law has been codified in the enabling Act as their functions and duties. These have vividly cut across the trajectory of the principles of rule of law and especially lean towards the protection of fundamental rights of individuals, collaborating with sister agencies to ensure and maintain public safety, peace, law and order, crime prevention, detection and prosecution, protection of lives and properties of the citizens among others. In carrying out these duties, they assume the pivotal role of ensuring equality of persons before the law, its supremacy as well as respecting human rights. The court in justifying the exercise of powers of arrest and detention by the police held in the case of Isiaka Adeboye &Ors v. Saheeto International Ltd. &Ors that:
“The powers of the Nigerian Police Force, with regards to crime prevention, detection and prosecution, are very wide indeed, to the extent that the Nigerian Police force has the power to detain and question anyone reasonably suspected to have committed or connected to the commission of a crime, within a limited timeframe and in a humane and responsible manner.”
No matter how one attempts to stretch it further, their roles in this noble objective cannot exceed the confines of the legislation directly regulating their operations otherwise they shall be acting beyond their powers which would result in an abuse of the rule of law rather than entrenching it. In this regard, see the case of: KURE v. C.O.P. (2020) (pt. 1729) Pg 296 @ 326, Para B-F, where the Supreme Court per Abba Aji JSC stated: “ The primary duty of the police by Section 4 of the Police Act is the prevention of crime, investigation and detection of crime and prosecution and punishment of offenders….The police is not a debt recovery agency and has no business to dabble into contractual disputes between parties arising from purely civil transactions…..when as is the circumstances of this action, a purely civil matter is reported, such a person cannot go scot-free as the report ought not to have been made at all since it is not within the purview of police duties. It is a report made malafide and he will be equally liable for the action taken by the police irrespective of whether he actively instigated them or not, since he had no business involving the Police in a purely civil matter in the first place. Such conduct which portrays disregard of the law and is amimed at using the coercive powers of the state to punish a contracting party in a purely civil matter ought to be mulcted in exemplary damages.” See also Okafor and anor v. AIG Police Zone II Onikan & Ors (2019) LPELR-46505
3.2.2 The Nigerian Armed Forces
The role of the military generally has been patently defined under the 1999 Constitution by the combined effect of Sections 217 and 218 thereof. Section 217 relates to the composition and establishment of the armed forces of the Federation, while Section 218 focuses on command and operational use of the armed forces of Nigeria. Sub-section (1) of Section 217 in particular is to the effect that there shall be an armed forces for the Federation which shall consist of an Army, a Navy and Air Force and such other branches of the armed forces as may be established by an Act of the National Assembly, while Sub-section (2) states that the Federation shall subject to an Act of the National Assembly made in that behalf, equip and maintain the armed forces, as may be considered adequate, expedient and effective for the purpose of:
(a) defending Nigeria from external aggression
(b) maintaining its territorial integrity and securing the borders from violation on land, sea or air
(c) suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President, but subject to such conditions as may be prescribed by an Act of the National Assembly; and
(d) Performing such other functions as may be prescribed by an Act of the National Assembly.
It is in discharging these functions that officers of the Nigerian Armed Force contribute their quota to the enhancement and retention of the cherished doctrine of rule of law in the country. See James Yusuf Danboyi v. COAS & Anor (Supra)
3.2.3 State Security Service
The Department of State Services or State Security Services is yet another key institution that plays a role in the detection and prevention of crime in the country, particularly those targeted against the state and in the course of discharging its mandates it is duty-bounden to uphold and respect the rule of law.
The department was initially created by the military government and has been maintained as a special service under the civilian dispensation to nurture, preserve and protect the country’s democratic governance. It is enabled to perform its roles and functions principally by Instrument SSS No. 1 of 1999 made pursuant to Section 6 of the National Security Agencies (NSA) Act 1986.
The primary functions of the agency are inclusive of the undermentioned:
• Prevention and Detection of any crime against the internal security of Nigeria;
• Protection and Preservation of all non-military classified matters concerning the internal security of Nigeria;
• Prevention, Detection and Investigation of threats of espionage, subversion, sabotage, terrorism, separatist agitations, Inter-group conflicts, Economic crimes of National security dimensions and threats to law and order;
• Provision of protective security for designated principal government functionaries, sensitive installations and visiting dignitaries;
• Provision of timely advice to government on all matters of National Security interest and
• Such other functions as may, from time to time, be assigned to it.
To sum it up, these duties must be carried out lawfully, in other words with utmost regard to the rule of law as held in the recent case of The State Security Service &Ors v. The Incorporated Trustees of the Peace Corps of Nigeria &Ors
3.2.4 Defense Intelligence Agency
This agency was established by the National Security Agency Act and saddled with the central responsibility for defense related intelligence within and outside Nigeria. The Agency’s main preoccupation is the protection and preservation of all military matters concerning the security of Nigeria. It coordinates the intelligence activities of the Intelligence Directorates of the Armed Services; Military Intelligence (DMI0, Naval Intelligence (DNI) and Air Force Intelligence (DAI).
They complement the role of the DSS and Military in ensuring and maintaining national security and cohesion, which are necessary recipes for the subsistence of rule of law.
3.2.5 Other Paramilitary Units
All other security outfits and paramilitary institutions in Nigeria have vital roles to play in the promotion and reenactment of the rule of law, as their duties are often intertwined and they constitute the pillars of civilized human existence in Nigeria. Those units such as the National Security Civil Defense Corps, Nigerian Immigration Service, Nigerian Customs Service and National Drug Law Enforcement Agency are all critical stakeholders and agents in the actualization of the core objectives of the rule of law and democratic excellence within the polity. In their facilitation of internal security and protection of lives and properties of the citizens, ensuring the lawful commute of persons into and outside the shores of the country, monitoring the import and export of goods and maintaining effective border relations with neighboring jurisdictions to enforce compliance with the laws and preventing the sell, consumption and movement of illegal drugs and narcotics among other key functions of these government anti-graft authorities, places them at the cynosure of enhancing and entrenching the rule of law in Nigeria.
4.0 COLLABORATIVE ENGAGEMENT WITH LAWYERS TO ENHANCE, ENTRENCH AND SUSTAIN THE RULE OF LAW
The Security agencies must first establish and maintain a robust inter-agency collaborative mechanism among themselves to ensure co-ordination and systemic performance of their roles in enhancing and entrenching the rule of law across all layers of their operations such as crime prevention and control, maintaining law, order, peace and security and national integration. And to their credit, they have considerably achieved this with examples abound, prominent amongst which was the case of arrest of Boko Haram leader, Yusuf Muhammed by the soldiers and handed over to the Police Force in Borno State for onward investigation and prosecution. Similarly, the officers of the Nigerian Custom Service arrested the former Liberian President Charles Taylor who was on exile in Nigeria while attempting to escape from the country and gave him up to Nigerian Immigration Service. Also, the ground combat by the military, the air strikes by the Air Force, grilling at different flash points by the Police and the intelligence gathering and use by the DSS (internally) and the NIA (internationally) are producing and yielding some applaudable outcomes. Hence, the continuous exhibition of such concerted efforts and synergy and extending into all other spheres of operations will invariably aid and entrench the observance of rule of law in the country as it shows that the law is not only held supreme but it is duly obeyed and all persons are treated equally before the law and the rights of the citizens are less infringed against.
Once the above tempo is improved upon and sustained, harmoniously collaborating with the lawyers becomes less herculean. The role of the lawyers as already established resides in upholding and respecting the rule of law, creating awareness and promoting human rights in handling the causes of their clients and in their general conduct as ministers in the temple of justice. As such, where well-coordinated inter-agency approach is on ground, legal practitioners are thus accorded the fertile ground to ensure strict compliance with laid down procedures in the areas of arrest, detention, investigation and prosecution of all manners of suspects and criminals, treatment of terrorists, corrupt government officials and so on. And to also insist on compliance with orders and judgment of the courts to maintain its hallowed status and restore confidence in the judicial system being a key institution in the rule of law landscape.
Some of the challenges militating against the achievement of a seamless collaboration among lawyers and the security agencies in entrenching the rule of law over the years feature some of the following issues:
There is the presence of general feeling of animosity and perhaps, threat, exhibited by most of the security agencies, especially the police towards lawyers whenever the latter has reason to pay them a visit to secure the release of or interact with their clients held in custody of the former. This face-off often hampers the swift dispensation of justice and even negatively affects the fundamental rights of the detainee, a sharp affront to one of the pillars of rule of law.
Indiscipline springing from a bloated sense of superiority, ignorance, lack of understanding and proper knowledge and training, undermines espiritde corps among the security agencies, which is a source of discouragement to the learned minds who have appreciable understanding of the law and its application.
The cankerworm of corruption which hitherto continues to permeate deep into the fabrics of our society, equally hampers any bid for collaboration to enhance the rule of law
Poor remuneration and condition of service of the security agencies causes them to resort to cutting-corners and all other avenues through which to sustain themselves in acute disregard for the observance of the rule of law and this makes it practically difficult for the lawyers to find themselves on the same page with them.
The prospects envisioned for Nigeria’s rule of law regime where harmonious collaboration could be fully achieved and made to endure the test of time, are indeed quite innumerable, but are reduced into the following:
The speedy administration of justice will become a reality and no longer a myth as all the unwarranted technicalities often associated with the criminal justice process will be drastically reduced if not eliminated and conducts of the operatives will be carried out in accordance with the law.
Confidence will be restored in the judicial and legal system in the country, thus leveling the ground for winning the lasting war against corruption and ushering in rapid economic growth, peace and serene nationhood.
Such collaborations will also boost the morale of the security agencies knowing that they are working hands-in-gloves with professionals who truly understand the essence of the law and are working on the same agenda as them to enhance the rule of law.
The society becomes a safe haven of sorts where respect for the law is assured and there is a general feeling of equal treatment of all before the law among the populace.
7.0 WAY FORWARD/RECOMMENDATIONS
In light of the challenges noted above, the following recommendations are preferred:
The Nigerian Bar Association through its many committees in collaboration with the authorities should focus more energy on sensitizing both lawyers and officers of the forces on the need to foster the growth and promotion of the rule of law in Nigeria by maintaining good and complementary working relationship in their areas of interface.
More workshops, conferences and trainings of this nature should be organized and widened in scope across states and localities to emphasize the essence of rule of law in our democracy
Government must galvanize efforts towards revitalizing the living conditions of the security agencies in order to rekindle their sense of patriotism and to consider themselves as indispensable cogs in the wheel of enhancing the rule of law
Legal educators also have a critical role to play in their modes of teaching and imbibing in the trainees who will become legal professionals on the immense essence of the rule of law. They equally must publish researched papers and organize public speeches to trash out these issues.
The fight against corruption must now more than ever, become more vigorous in order to arrest and address the lingering consequences it hitherto bears on our entire political terrain.
A detailed adumbration on the origin, meaning and the tripartite indicators of the rule of law have been extensively provided along with a legal perspective on the contemporary texture of rule of law in Nigeria. The paper addressed the independent roles of legal practitioners and select security agencies in the architecture of rule of law in Nigeria and attempted to draw out the need and instances of their collaborative engagements towards not just enhancing but equally sustaining the rule of law in Nigeria.
Aristotle, Nicomachean Ethics V. 3.1131a10-b15 (trans. Thomson).
Dicey, A. V. Law of the Constitution (10th ed.)
Garner, B. A. The Black’s Law Dictionary (7thedn, West Group Publishing Co. 1999) 1332
John, C. et al, Complete Works by Plato (Hackett Publishing 1997) 1402
Locke, J. Essays on True Extent and Exit of Civil Government (Cambridge University Press, New
York, 1860) 31
Malemi, E. Administrative Law, Cases and Materials (Grace Publishers Inc. Lagos, 2004) 51
Niki Tobi, The Nigerian Lawyer (Law Research and Development Forum Limited, Lagos, 2002)
Nwabueze, B. O. Constitutional Democracy in Africa (C. Hurst & Co. London, Vol. 3, 2003) 20
Ojo, A. Constitutional Law and Military Rule in Nigeria (Evans Bros. Ltd. Ibadan, 1987) 239
Olarenwaju Ayo, The Bar and Bench in Defence of Rule of Law in Nigeria (Nigeria Law
Publications Ltd, Lagos: 1992)
Olong, A. M. Administrative Law in Nigeria (2nd ed., Malthouse Press Limited, 2009) 13-14
Sir William Holdworth’s Review of Wade’s Introduction to Dicey (9thedn) 55 LGR 585
Tamanaha, B. Z. On the Rule of Law (Cambridge University Press, 2004) 9
Thomas, B. The Rule of Law (Penguin 2010) 3
Wade and Philips, Constitutional Law, (Longmans, 1961) 69
Adesina Debo, “The Attorney General takes over Kalu’s case” Guardian Newspaper (Guardian
Newspapers, Ltd) Lagos, 6th September, 2017 p. 2
Ameh, I. ‘Rule of Law as a Basis for Good Governance: The Nigerian Experience’, in A. M.
Madaki, ed., ‘Challenges of Constitutional Governance in Nigeria, Legal Essays in Honour of Dr. Samson Sani Ameh SAN, MFR, by the Department of Private Law, A. B. U Zaria (Meadal Micro Computers, Kaduna) 458
Craig, P. P. ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’
(1997) Public Law Journal 467
Fombat, M. C. ‘Challenges to Constitutionalism and Constitutional Rights in Africa and the
Enabling Roles of Political Parties: Lessons and Perspective from Southern Africa, Paper presented to South African Institute for Advanced Constitutional, Public, Human Rights and International Law (July 21, 2005).
Haruna B.A. & A. M. Yusuf, A. M. ‘A Conceptual Analysis of the Rule of Law in Nigeria’ (2017)
Bayero Journal of International Law and Jurisprudence (BJILJ) available at <https://www.researchgate.net/publication/321017220> accessed 19 March 2022
Madubuike-EkweN. J. and Obayemi, O. K. ‘Assessment of the Role of the Nigerian Police Force
in the Promotion and Protection of Human Rights in Nigeria’, Annual Survey of International and Comparative Law. Vol. 23 (1) art. 3 (2019) 9 available at https://digitalcommons.law.ggu.edu/annlsurvey/vol23/iss1/3 accessed 20 March 2022
Mary-Imelda, N. O. ‘The Rule of Law in Governance in Nigeria’ (2010) JILJ 187-201
Niki Tobi, ‘The Professional and the Quest for Genuine National Integration and Development’ in
Yemi Akinseye George, ed., ‘The Legal Profession and the Nigerian Nation’ (1998) International Legal and Allied Research Network 27
Niki Tobi, ‘The Rule of Law and Anti-Corruption Crusade in Nigeria’ (2008) 8, being a Lecture
delivered at the 9th Justice Idigbe Memorial Lecture, at the Akin Deko Auditorium, University of Benin, Benin City, Nigeria on 6th August, 2008.
Nsiegbe Godfrey-Ordu, S. C. ‘Inter-Agency Collaboration and Coordination: The Role of
Investigators and Prosecutors and Prisons; Adhering to the Rule of Law in Investigation and Prosecution’ (2019). Paper presented at the National Workshop for Investigators and Prosecutors held at Andre OtutuObaseki Auditorium, National Judicial Institute, Abuja on Monday 26th August 2019
Nte, N. D. ‘An Analysis of Intelligence Support to Security Operations in Nigeria: A Review of
Some Joint Task Force Operations’ (2013) Peace and Security Review, Vol. 5 (9) 1-23
‘Rule of Law in a Free Society’, International Commission of Jurists (1959) African Conference
on the Rule of Law (1961)
United Nations Secretary-General, ‘The Rule of Law and Transitional Justice in Conflict and Post
Conflict Societies’. Report of the United Nations Security Council, UN DocS/2004/616 (2004)
Yusuf Ali, ‘Rule of Law in Nigeria: Extant Profile and Challenges for the Bar: A Discussion of
the Keynote Address Presented at the Ilorin NBA Biennial Law Week between 14th and 16th May, 2008.
Haruna B.A. & A. M. Yusuf, A. M. ‘A Conceptual Analysis of the Rule of Law in Nigeria’ (2017)
Bayero Journal of International Law and Jurisprudence (BJILJ) available at <https://www.researchgate.net/publication/321017220> accessed 19 March 2022
https://www.dss.gov.ng/dss_about accessed 12 January 2022
Madubuike-Ekwe N. J. and Obayemi, O. K. ‘Assessment of the Role of the Nigerian Police Force
in the Promotion and Protection of Human Rights in Nigeria’, Annual Survey of International and Comparative Law. Vol. 23 (1) art. 3 (2019) 9 available at https://digitalcommons.law.ggu.edu/annlsurvey/vol23/iss1/3 accessed 20 March 2022
Ontario Justice Education Network, ‘Rule of Law in Brief’ (2013) Student Handout, available at
<https://www.ojen.ca©2013> accessed 17 March 2022
To join our Telegram platform, please click here
Copyright 2022 CITY LAWYER. Please send emails to email@example.com. Join us on Facebook at https://web.facebook.com/City-Lawyer-Magazine-434937936684320 and on TWITTER at https://twitter.com/CityLawyerMag. To ADVERTISE in CITY LAWYER, please email firstname.lastname@example.org or call 08138380083. All materials available on this Website are protected by copyright, trade mark and other proprietary and intellectual property laws. You may not use any of our intellectual property rights without our express written consent or attribution to www.citylawyermag.com. However, you are permitted to print or save to your individual PC, tablet or storage extracts from this Website for your own personal non-commercial use.