CIVIL LIBERTIES, NATIONAL SECURITY, AND THE CONSTITUTION: HASSAN OLAYIWOLA
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The scope of Kanu’s Radio Biafra free speech broadcast is beyond the scope of Freedom of speech. Kanu’s Radio Biafra broadcast is subversive of public order by inciting and/ or inducing unlawful conduct. The common issue is whether or not the Federal Government of Nigeria must show not only that the defendant/Kanu purposefully advocated unlawful action, but also that under the circumstances there was some degree of likelihood that unlawful actions would actually occur as a result of the speech at the “IGBO WORLD CONGRESS/ASSEMBLY”. The Federal authorities cannot and must not wait until the actual violence occurs. Nnamdi Kanu was and is calling for act of insurrection against Federal Government of Nigeria which constitutes treason against the state. The question is, is the continued detention of Nnamdi Kanu in order?. It is for the courts in Nigeria to determine.
Let’s begin with a set of constitutional issues arising from foreign and domestic threats to our national security. To what extent does the Constitution permit the President and the National Assembly to limit our civil liberties for the sake of national security? And how much power does it give the Court to review the balancing of the two concerns-or put another way, to second-guess the National assembly and the President in their efforts to do so , if and when either one (or both) of them decides to act.
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The President, both as Commander-in-Chief and as the Nation's number one citizen, has available intelligence services whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial.
Such decisions are wholly confided by our Constitution to other arms of the government, Executive and Legislative. Those decisions may be delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. We therefore agree that whatever of this order emanates from the President is not susceptible of review by the Judicial branch.
It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.
Chapter IV Section 39 (1 &2) of the Nigerian constitution states:
(1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.
(2) Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions:
Provided that no person, other than the Government of the Federation or of a State or any other person or body authorised by the President on the fulfilment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for, any purpose whatsoever.
Freedom of expression refers to the ability of an individual or group of individuals to express their beliefs, thoughts, ideas and emotions about different issues free from government censorship. Section 38-40 of the Nigerian Constitution protects the rights of individuals to freedom of religion, speech, press, petition and assembly.
The constitutional guarantees of freedom of speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
However, we have in the past witnessed attempts by religious and militant groups to assert their own beliefs and doctrine in disobedience of the constitution, the law and challenge to constituted authority and/or institutions of state. We cannot tolerate the existence of state within a state in Nigeria otherwise there is bound to be anarchy that will result to the breakdown of law and order.
To protect the safety and security of the nation's citizens, the President, perhaps with the support of National Assembly, may believe it necessary to take an action that might otherwise seem beyond his constitutional authority. This might involve press censorship, detention of individuals without trial, searches conducted without warrants, or eavesdropping or wiretapping. The Constitution limits such actions - sometimes implicitly, sometimes explicitly - through provisions protecting free expression, a free press, freedom from imprisonment without trial, and so forth. But "the Constitution is not a suicide pact”. Thus there arises the basic substantive question of whether it authorizes the President to curtail ordinary civil liberties for the sake of national security. When obliged to face such a question, the Court may also have to answer a related one, likewise of critical importance: Who (i.e., which institution) is to decide whether a particular measure taken by the President (or National Assembly) imposes a restraint that is only temporary and necessary and therefore tolerable (i.e., within constitutional limits), or whether it goes too far? The “who” question normally amounts to deciding whether the courts or the elected branches of government are to have the last word. The Constitution does not directly answer either the “who” question or the "limits" question.
But it does delegate to the national legislature and to the President the power to protect Nigerians from foreign attack, insurrection, insurgency, rebellion and public safety as espoused in section 305 of the Nigerian constitution; as threats to national security have become more international, indefinite with respect to manner, and uncertain with respect to time. Indeed, threats today are less likely to arise out of a declaration of war by another sovereign power and more likely to be posed by stateless international terrorist networks. They are also more likely to last for many years, perhaps indefinitely.
The Constitution explicitly gives the President with consent of National Assembly the authority to "declare War," with the Armed Forces; It says that the "President" shall be "Commander in Chief" of the armed forces consistent with section 130 (2) and Chapter 1 Part II section 5(§§ 4-5) and that he can (with the Senate's "advice and consent") make "treaties. It vests the executive power in the President, which includes the war power and the foreign affairs power. In a word, it delegates to the elected branches, not to the judiciary, responsibility for Nigeria's security. The judicial branch, on the other hand, plays a critical role in enforcing those provisions of the Constitution that protect our basic liberties, including "the freedom of speech" and the freedom not to be "deprived" of "liberty without due process of law."
The evolution of any legal doctrine takes place slowly. Law normally changes that way. The Supreme Court only rarely overturns an earlier decision. Otherwise the law would lack the stability necessary for ordinary citizens to rely upon it in planning their lives. But the Court does gradually change its approach. This is inevitable, as the nation changes over time, and as different presidents appoint different judges with different philosophical views about how the law - especially as embodied in abstractions like "liberty" - relates to individual Nigerians.
Cicero set forth what would eventually become one of the best-known legal principles concerning the role of courts during wartime. Two thousand years ago he wrote, "Silent enim leges inter arma," which means “When the cannons roar, the laws fall silent." When the senator wrote those words, he was responding to civil strife that had erupted in Rome, where armed gangs had taken control of the streets. They were never punished, for their leaders had been elected to public office. Still, we see the point of Cicero's remark:
When the security of the state is threatened, do not expect the laws to apply. To what extent has that principle governed the actions of Nigerian courts? But Cicero’s doctrine will not suffice, as law and order must be maintained. We should also be able to ask our elected legislators in the national assembly and the courts just what kind of check is it prepared to give him?
Consider the principle in the context of the American Civil War. At the very outset, President Abraham Lincoln suspended the writ of habeas corpus. That ancient writ traditionally allows anyone in detention to challenge the lawfulness of his confinement by getting word to a judge that he is being held, in his view, without legal authority. And the judge can then tell the jailer, the local sheriff, say, to "bring me the body." Questioning both the jailer and the prisoner, the judge can discover the legal basis, or the lack thereof, for the prisoner's detention. It would be difficult to point to a more important legal protection against arbitrary imprisonment.
President Lincoln's suspension of the writ in effect allowed his military to arrest civilians arbitrarily, without court review. He had seen firsthand a pressing need for such an extraordinary measure. On the way to his inauguration, he had been forced to sneak through Baltimore under cover of night in order to avoid a pro-secession mob, while transferring from one train station to another. Lincoln knew that Union troops from the West and the North would have to negotiate the same station transfer on their way south. And he feared the effect this might have on their ability to travel, on the city of Baltimore itself, and on the State of Maryland, which itself stood on the brink of secession.
By suspending the writ, Lincoln intended to allow Northern troops to arrest disloyal Baltimore citizens. And that is just what they did. Early on the morning of May 25, 1861, on the orders of General William H. Keim, they arrested John Merryman, who had been a ringleader in anti-Northern riots that spring, and held him at Fort McHenry, a nearby post under the command of General George Cadwalader. Merryman immediately asked a nearby federal court to issue a writ of habeas corpus. And the court's judge, Supreme Court Chief Justice Roger Taney, sitting as a local circuit judge, agreed to do so.
At first glance, Lincoln's actions to stop judges like Taney from issuing the writ might seem constitutional, for the Constitution authorizes suspension of the writ of habeas corpus "when in cases of rebellion or invasion the public safety may require it." But this grant of authority appears in Article I, of the U.S. constitution which deals with Congress's powers, not in Article II, which addresses the powers of the President; such as what the application shall be within the context of Chapter IV Part 1 in conjunction with Section 45-46 and section 305 of Nigeria constitution when applied. Hence, Taney concluded, the President, by acting without congressional authority, had violated the Constitution.
President Lincoln's reaction to the court's decision is well known. He did not release John Merryman. Neither did he appeal the ruling, as he might have done. Rather, he defended his right to take decisive unilateral action. A few weeks after Merryman's arrest, he asked Congress, "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” A week later Attorney General Edward Bates presented U.S. Congress with a report justifying Lincoln's decision to suspend the writ of habeas corpus.
Still, the same day as the Bates report, Merryman was released on bail, and Lincoln did not prosecute him. And two years later Congress itself suspended the writ of habeas corpus, thereby curing the constitutional defect (as espoused in section 45(1-3) of the Nigerian constitution). The controversy about the President's powers fizzled out without any definite resolution.
Merryman's detention, however, is but one of many examples of how President Lincoln suspended or sidestepped constitutional protections of civil liberty in the name of national security y.
During war, insurgency and insurrection, the executive and legislative branches typically believe that the foreign threat and/or domestic insurrection - not the preservation of civil liberties - is the paramount concern. And at times throughout American history, the judiciary has agreed. While the Civil War raged, with the exception of Merryman, the courts did not meaningfully interfere with-presidential or legislative decisions. Once the Civil War was over, however, the Court was in a position to take a different view.
Protection of Freedom of speech should not and does not extend to subversive speech that includes inciting unlawful conduct. By orally calling for the killing of two dominant ethnic groups in Nigeria (Yoruba and Hausa/Fulani) on air as depicted on available video at the IWC/WIC on the illegal Radio Biafra; is a direct threat or ratification of violence. Freedom of Speech allows for punishment of subversive advocacy calculated to produce "imminent lawless action" and which is likely to produce such action as espoused in Section 45-46 of Nigerian constitution. In this instances, and call by the Shite/Shia group not to obey constituted authority of the Armed forces as an institution and the constitution except their own religious doctrine constitute a clear and present danger directly threatening and incitement for ratification of violence.
Nigerian’s of all sphere’s abuse some of our civil liberties, one of which is the freedom of speech, due in part because no federal court up to the Supreme Court of Nigeria has made or provided any definitive legal opinion/doctrine for what constitute free speech in Nigeria; all that we do rely on American law. But I am not advocating that the Courts should be prepared to give the President a blank check, but only in extreme situations. Extraordinary conditions may call for extraordinary remedies. The country need emergency powers to deal with graft, economy security and public safety and the legislature should adhere and consent.
No country, however rich, can afford the waste of its human resources." Certain critics said strong measures had been necessary but no longer needed. Now that these people coming out of their storm cellars, "they forget that there was ever a storm."
The Opposition complained that the "CHANGE AGENDA" - Fighting Corruption, Public Safety /Security, Economic development, and unemployment had eroded individual liberty. Liberty was indeed the issue, but liberty meant more than letting the rich and powerful do whatever they would. I am not for a return to that definition of liberty under which for many years a free people were being gradually regimented into the service of the privileged few. I prefer and I am sure Nigeria people prefer that broader definition of liberty under which we are moving forward to greater freedom, to greater security for the average man/woman than he/she has ever known before in the history of Nigeria.
Just not distant months ago some Iranian operatives/businessmen were arrested for importing large cache of sophisticated weapons and ammunitions into the country. What was the outcome with the intelligence community and action of the federal government. We are not interested in only the prosecution and incarceration, but the far reaching security implications for the country and the people within.
In the ongoing act of supposedly call for insurrection by Radio Biafra broadcast directed by Nnamdi Kanu, Director of Radio Biafra and leader of militant/subversive group, Boko Haram and possibly civil disobedience by the Shite led by Zakzakky Movement in Zaria and other militant groups.
Should the President suspend the writ of habeas corpus? The Constitution is not a sacred pact.
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