EVER before last week’s broadcast, many had expected President Goodluck Jonathan to declare a state of emergency in some Northeast states, especially Borno, over the Boko Haram insurgency. To such people, it came as a relief when he took that step. Many are, however, questioning the rationale behind the President’s action. They contend that he did not follow the Constitution in declaring emergency rule in Adamawa, Borno and Yobe states.
To some lawyers, the President does not have the constitutional backing to declare emergency rule in any state without the governor’s request. They said he could only do so when the country is at war.
Others said he erred in law by not suspending democratically elected structures, such as the houses of assembly, governors, local government chairmen and councillors.
Another group argued that the president does not have the power to declare emergency rule without passing through the National Assembly or publishing his intent in an official gazette. For others, there is no precedent for Jonathan’s kind of emergency rule. Their arguments are based on Section 305 of the 1999 Constitution, the same section President Jonathan invoked in declaring the emergency rule. Following troops deployment in the three states, the military swiftly imposed curfew on Adamawa and Borno states. The curfew did not go down well with the antagonists of emergency rule. According to them, the imposition of 6pm to 6am curfew contravenes the principle of necessity and proportionality under Sections 33(2) of the Terrorism (Prevention) Act, 2011 and 41(2) of the 1999 Constitution. They said it was also an abridgement to Resolution 60/288 of the United Nations Global Counter-terrorism Strategy, which Nigeria is a signatory to.
However, some lawyers, citing the same Section 305, are of the view that the president acted in consonance with the law.
They maintained that Jonathan would have committed a constitutional blunder if he had toed the footsteps of former President Olusegun Obasanjo, who in declaring emergency rule on May 18, 2004 and October 19, 2006 in Plateau and Ekiti states respectively, pursuant to (the same) Section 305 suspended the governors and state houses of assembly.
The former president was accused of breaching the Constitution by not adhering to the provisions of Sections 11(4)(5), 188, 189, 109 and 110 on the removal of elected public officers, which states that such officers can only be removed either by impeachment by the state house of assembly; death; ill-health or resignation. They insisted that the President would have been dragged to court if he had over stepped his bounds by suspending democratic structures.
To them, the absence of precedence does not make a situation wrong, as the mere fact that it has never been done does not nullify the legality or rightness of an action.
Declaration of emergency rule is not peculiar to Nigeria. The United Kingdom (UK), the United States (USA), Egypt, Syria, among others, have or are still experiencing one form of emergency or the other.
In the UK, the British Sovereign, the Privy Council, or the Prime Minister can proclaim emergency regulations under the Civil Contingencies Act, 2004, when there is fatal threats to the human welfare, human society or environment such as; war or terrorism.
Declaration of a state of emergency in the USA is contained in Section 32 of the US Constitution, as well as Insurrection and National Emergencies Acts.
Under these laws, a state governor or local mayor has the power to declare an emergency rule within their jurisdiction during disaster, while the US President declares a federal state of emergency.
Presently, the US is formally in a limited state of emergency that began on January 24, 1995, with the signing of Executive Order 12947 by President Bill Clinton.
It was further extended by Proclamation 7463 of President George Bush in 2008, as well as President Barrack Obama’s continuation of national emergency with respect to certain terrorist attacks order of November 11, 2012.
What the law says
The president has the sole power to declare a state of emergency, derived from Section 305 of the 1999 Constitution (as amended). Section 305(1) which states: “Subject to the provisions of this constitution, the President may by instrument published in the official gazette of the Government of the Federation issue a proclamation of a state of emergency in the Federation or any part thereof.”
By the provisions of subsection (3) of Section 305, the proclamation can be made only if the federation is at war; in imminent danger of invasion or involvement in a state of war; there is actual breakdown of public order and safety in the federation or any part that requires extraordinary measures to restore peace and security; a clear and present danger of an actual breakdown of public law and order in the federation or any part that requires extraordinary measures to avert; the occurrence of imminent danger or disaster or natural calamity, affecting the community or section of the community in the federation; there is danger which clearly constitutes a threat to the existence of the federation; or when the president receives a request to do so in accordance with the provisions of 305(4).
Governors in accordance to Section 176 (2), are Chief Executive Officers of their states. Although Section 215 (4), empowers them to give lawful directions to a Commissioner of Police in their state or seek federal government intervention, Section 305(3)(g) and (4) constitutionally empowers governors to make a request to the president within a reasonable time for a state of emergency after they must have obtained two third majority of their respective State Houses of Assembly.
A professor of law, Itse Sagay (SAN); chairperson, Nigerian Bar Association-Section on Legal Practice, (NBA-SLP), Mrs Funke Adekoya; Chief Felix Fabohungbe (SAN), Norrison Quakers (SAN), Niyi Akintola (SAN), Bolaji Ayoride (SAN), Yusuf Ali (SAN), Joseph Nwobike (SAN), Dr. Fred Agbaje, Dr. Tijani Ahmed, Chairman, NBA Ikeja Branch, Onyekachi Ubani, Mohammed Fawehinmi and Ikechukwu Ikeji all agreed that the president has the sole power to declare state of emergency.
Quakers said the power of the president to make this proclamation is dependent on the fulfillment of a condition precedent.
“Under the provisions of subsection (5) of Section 305, the president’s power to proclaim a state of emergency in a state would crystallize, when the governor fails within a reasonable time to make a request to the president to issue such proclamation.
“The wordings of this subsection are quite clear and unambiguous. The proclamation made by the president might be brought under this subsection. The word ‘reasonable time’ as used in this subsection is subjective particularly in the light of the incessant bombings and mayhem unleashed in the states and the killing of policemen in their lawful and constitutionally assigned duty.
“No responsible government will stand by until the state or states are engulfed in monumental crisis resulting in the destruction of lives and properties and displacement of persons.’
Sagay said those who are contending that the President does not have such powers are ignorant of the provisions of the law, as it is only the President who can exercise such a power.
Fawehinmi said the President’s action was justified and he acted in compliance with Section 305(3)(a) and (f).
Non-suspension of democratic
structures
The Constitution did not state if democratically elected structures should be sacked or suspended.
While some of the lawyers described the situation as ambiguous and discretionary, others argued that there is no ambiguity especially because there are other provisions on the removal of elected public officers.
Those who said the president was right in not suspending the democratic government, argued that state of emergency only gives the military and the president the power to move with very little restrictions from human rights provisions.
As a result, they declare curfew, arrest and detain people, go from home-to-home without court restrictions and with no effect on the status of a governor or the other democratic structures.
Those against Jonathan’s style said the mere declaration of a state of emergency connotes the suspension of all democratic structures.
Fabohungbe described Jonathan’s proclamation as a partial state of emergency, while that of Obasanjo was complete. He argued that both declarations were correct and constitutional.
“The constitution says the president should declare state of emergency but Jonathan chose not to do it in full. Removing the Chief Executive will be total. I think Jonathan acted the way he did with respect to the seriousness of the matter.
“Section 305 is a general provision and the Supreme Court has not made any pronouncement the issue, so, it is subject to the manipulation or interpretation of the President in a way that will suit the action he may want to take,” he said.
Sagay said there was a no ambiguity, nor was the action unconstitutional. He said the Constitution does not permit either the President or National Assembly to remove or suspend elected officials.
His words: “Section 305 has no such provisions. It only permits the President to declare a state of emergency, which has to be confirmed within 10 days by the National Assembly.
“Based on our experience in 1962 when the Western Region Government was suspended and people were detained and the region’s governor removed by the federal government, the drafters of the 1979 constitution, which is replicated in the 1999 constitution were careful, having learnt the lesson of the abuse of power by the Balewa government, which resulted in the total breakdown of the first republic.
“What they did was to make a clear, express provision in Section 11(4)(5) where it is stated that a state of emergency cannot affect the status of a governor neither can it affect that of the House unless the House is unable to meet.
“It is a straight forward thing. I do not know why this ignorant people are just talking in the air without making reference to the constitution. So, there is absolutely no ambiguity and what the president did is laudable.”
Adekoya argued that it is possible to have a state of emergency without removing executive and legislative structures.
She said: “The method by which a State Governor loses his office is also stated in the Constitution and it can be argued that it would be unconstitutional to remove a governor by any other means, including through declaring a state of emergency.
“In my opinion and based upon my understanding of the Constitution, the actions taken by Obasanjo when he declared a State of emergency does not reflect the true constitutional provision.”
Quakers added that the President should be commended for not dismantling democratic structures as state of emergency does not envisage that.
But Agbaje said democratic structures ought to give way during an emergency rule to avoid parallel administrators, which will not augur well as the citizens will be confused as to whose order to obey.
“Obasanjo did the right thing in declaring emergency in Ekiti and Plateau states; that was why a leading constitutional lawyer went to court against the government of Obasanjo and lost. There is nothing in Section 305 which stops the president from suspending democratic structures and there is nothing there which says the president can suspend them.”
Fawehinmi said the only ambiguity was in allowing a constitutionally elected government to remain, which makes the process a bit tedious.
“When you are in a state of war, the first people you relate with is the defence or security apparatus of the country. The president has sole power to remove any governor without retribution if he feels and knows beyond reasonable doubt that such a person cannot effectively carryout his/her constitutional duties,” he said.
Akintola, who said the president was within the law by not sacking democratic structures, expressed worries that the measure taken by Jonathan may aggravate the current situation.
He added: “What he has done is in anticipation of the National Assembly’s approval. Of course, he has no power to sack any governor or dissolve the State Assembly without the consent of the Federal Legislature. It is a sign of impunity.”
While Ayoride said the President was in order and lauded the move, Ali said the president was right by not sacking the elected officials in the affected states because it would have amounted to punishing the wrong people for the failure of security institutions, which the president alone has control.
“What happened under President Obasanjo was an aberration. It was wrong to have sacked governors, who were not directly found to be the cause of the crisis.”
Nwobike described it as “a limited state of emergency” since elected officials were left in their places. “By not sacking the governors, the president may be right, but this is a half way measure. I describe it as a limited state of emergency,” he said.
Hon argued that state of emergency comes in various shapes and forms. “What happened under President Obasanjo was unconstitutional. State of emergency can be political, economical or constitutional. It depends on what the President seeks to achieve with it.
“What people should understand is that under emergency, some basic rights are suspended and security agencies, like the police can arrest and search your premises without warrant; people could be detained beyond the permitted period. So, let us not condemn yet. Let us watch and see. He is the President and the issue of security is his responsibility,” Hon said.
Ubani believes the declaration was extreme and contradictory.
He said: “The declaration is not holistic since the democratic structures of the executive and legislature are still intact which is not different from what was obtainable before now.
“The declaration of emergency rule, therefore, may not end the crisis in the north. If care is not taken more troubles await the nation,” he added.
Ahmed said the discretion is entirely the President’s, subject to the approval of the National Assembly, adding: “The different perspectives to it are healthy. It shows people are concerned and interested in what is happening around them. I don’t think it is unconstitutional not to dismantle existing democratic institutions,” Ahmed said.
Ikeji the confusion was as a result of the fact that Section 305 did not provide for the actions that can be taken by the president. “Yes, we can have a state of emergency without removing the executive and legislative structures of a State. Conversely, we can still have one where the structures including, judicial, are suspended, not removed,” he said.
Lawyers seek amendment
Lawyers called for an amendment of the constitution as well as the enactment of an Emergency Act that will clearly state the effect of a state of emergency.
Adekoya said the ambiguity can best be regulated by legislation such as the State of Emergency Act (1997) in South Africa or similar legislations in other countries. She was of the view that a regulation that stipulates the powers that may be invoked during a state of emergency should be put in place by the National Assembly extends the period.
Fabohungbe said there should be a law to break down the procedure without amending that Section of the constitution.
To Agbaje, the National Assembly should address the discrepancies by enacting a National Emergency Act that will spell out what should be done or what should not be done.
Ikeji urged the National Assembly to enact an Emergency Act as obtained in the United States and Canada so as to provide for details of what should happen during different levels of emergencies.
He added that the long term solution to insecurity and poverty is fighting corruption and convening a national dialogue, especially with respect to the fact that the constitution lacks authenticity as it tells a lie against itself and the Nigerian people.
