State Of Emergency and the Rule Of Law
By Nwabu' Okoye

Published in the Guardian Newspaper of Sunday, May 30,2004

The Presidential broadcast of Tuesday. May 18, 2004; through which President Olusegun Obasanjo imposed a stale of emergency on Plateau State, has aside from the arising grave political consequences, thrown up some challenges to the rule of law; which is the foundation of Nigerian democracy. It is Section 305 in the Constitution of the Federal Republic of Nigeria; 1999 which deals comprehensively with the procedure for declaration of Stale of emergency in Nigeria or any part thereof. From a comprehensive reading of the provisions of the said Section 305 in the 1999 Constitution, it appears certain that it is only on the President of the Federal Republic of Nigeria, who is vested with the initiative and responsibility to proclaim a state of emergency in the. Federation or any part thereof; of course; strictly in accordance with -'the provisions of that Section 305 in the Constitution including securing the support for the Proclamation of two-thirds majority of all the members of each House of the National Assembly; within two days of the Proclamation when the National Assembly. In session or within ten days of the Proclamation when the National Assembly is not in session.

Comparatively, in the provisions of the Constitution of federation; I960 which was in force when state of emergency was declared over Western Nigeria, the initiative and responsibility to declare state of emergency in the Federation or any part thereof rested first with Parliament by-virtue of the provisions of Section 65 in that Constitution which provided that Parliament may at any time make such law's for Nigeria or any part thereof with respect to matters not included in the Legislative Lists as may appear to Parliament necessary or expedient fur the purpose of maintaining or securing peace, order and good government during any period of emergency

It was pursuant to the foregoing Section 65 in the Constitution; I960 that Parliament on 3Oth March, 1961, enacted the Emergency Powers Act of 1961 which gave the Governor-General In Council powers to make regulations as appear to him necessary or expedient for the purpose of maintaining and securing peace, order and good government during any period of emergency subject to these being approved by Parliament before the expiration of the period of two .months from the date that such regulations came into effect.

From the text and contents of the President's broadcast of May I8, 2004, the impression is created by the President that a stole of emergency has been declared in Plateau State; the Governor and others suspended and an Administrator appointed by him merely by, virtue of that national broadcast of 18th May, 2004.
This declaration has been published in a Federal Gazette as of today. The Governor and his deputy, by this declaration will go on suspension and cease to be in charge of the affairs. Plateau state for six months in the first instance, the Plateau State House of Assembly also goes on suspension as the formal legislative body of the State with immediate effect, It Is submitted that the President cannot by mere national broadcast or any other process short of a Proclamation published in the Official Gazelle validity declare a state of emergency in Nigeria or any part thereof; as such will not be in conformity with the provisions of Section 305 in the 1999 Constitution.

Aside from the declaration of the State of emergency itself; one of 'the rankling and controversial aspects of the declaration of emer­gency in Plateau State Is the President's unilateral suspension of the governor, his Deputy, the State House of Assembly, and the appointment of the administrator over the state .in Plateau State Is the President's unilateral suspension of the governor, his Deputy, the State House of Assembly, and the appointment of

Presidents towards the American Constitution as the four strategic of Claiming the Silence “Exploiting Ambiguities" "Pyramiding Responsibilities and "Combining Powers; and in respect of which Pious wrote as follows;- 'President argue that any function not mentioned in that Constitution should be assign to them by virtue of the oath of office, the executive power, and clauses naming the president commander in chief."

Again in the book, “PRESIDENTIAL GOVERNMENT:-The Crucible of Leadership” by James Macgregor Burns, it seems conceded that in times of war and emergencies, there ought to be what the author described as “-the clear primacy of the executive”.

The reflection of the school or concept that in moments of emergencies or war; the President (even if he can declare an emergencies), can only act specially and in detail, through powers delegated to him by the legislature, finds some expression at page 342 in the same by Richard M. Pious, when the author observed that most of the powers that the president exercise, including some war and emergency powers, are delegated by congress, using the necessary and proper clause. Congress makes a conditional delegation; the President must declare that a national emergency exists and report to Congress period­ically. Congress may at any time end the state of emergency, by passing a joint resolution (subject to Presidential veto)".

Faced with the forgoing two options of whether the President or the Legislature should initiate or act in areas where the Constitution is silent on or over, the better view in the Nigeria context especially in the light of the provisions of section 305 of the Constitution of the Federal Republic of Nigeria; seems to be that whilst the President can proclaim a state of emergency in the Federation or any part thereof, the details of that state of emergency including the appointment of the personnel to function during that period, and the fate of democratically elected incumbents as the Governor, Deputy or State House of Assembly member exact parameters, limits or contents of the President's Proclamation hers should only be determined through on Act of the National Assem­bly except where such Act of the National Assembly had explicitly delegated such powers to the President.

In the longer term; a tidier arrangement will be for the National Assembly to ab initio pass a Law or Act setting out in detail, the powers and responsibility of the President, the National Assembly and the fate of incumbents like the Governor in a period of state of emergency.That was the primary purposes of the promulgation of the Emergency Powers Act of 1961 by parliament prior to the formal declaration of the state of emergency and appointment of an Administrator in western Nigeria through the Emergency Powers (General) Regulations of 1962.

In America too; when in the early 1970s there was congressional and general discontent with the implications of the Tonkin Gulf Resolution of 1964 which gave wide powers “------including the use of armed force to the President to assist South Vietnam to preserve its freedom; congress override President Nixon’s Veto and passed the War Powers Resolution Act of 1973 which made it mandatory for the president to keep Congress in combat or hostilities.

In this instance of declaration of state of emergency in Plateau State, whilst the view is held here that a Governor can be suspended from office but not removed during a period of emergency, the suspension of the Governor, Deputy and others, by the President through his broadcast of 18th May, 2004 or even through proclamation per se; is unconstitutional and ultra vires except if same can be justified under the supposed prerogative of the Executive to act in those areas in which the Constitution is silent or except where the only saving grace (which space will not permit us to delve into) is whether the subsequent approval by the National validates such ultra vires pronouncements or steps by the President.

Comparatively, In the declaration of emergency in Western Nigeria in May, 1961, after the passage of the Emergency Powers Act of 1961 by Parliament, the same Parliament consequently passed the Emergency Powers (General) Regulations of 1962, which gave the Prime : Minister the authority to appoint an Administrator for an emergency ; area (defined specifically as "Western .Nigeria) and which also pro­vided that except to such extent and during such period (if any) as the administrator may direct no person holding or acting in any of the offices therein stated including that of Governor, Premier Minister of the Region and others; shall exercise any of the functions of thatoffice during that period of emergency.
It Is necessary to add that neither the President or the National Assembly can during a period of emergency or otherwise remove a Governor, Deputy or members of the State House of Assembly from. office, as made clear inter alia in the provision in subsection (4) to section 11 In the 1999 Constitution. Bearing in mind, that emergency powers as defined by P.H.COLLINS in his DICTIONARY OF-LAW means "special powers granted bylaw---------to deal with an emer­gency usually without going through the normal democratic process” it is conceivable that the Governor or Deputy Governor of a State can be suspended from office by the concert acts of the President and the National Assembly and such suspension is not removal from office as characterized by some observers in this Plateau State instance.

To clarify that suspension from office is distinct from removal from office; the authors of BLACK'S LAW DICTIONARY described suspension as the temporary forced removal from the exercise of office while "removal" is the dismissal from that office. By virtue of the fore going, Joshua Dariye is not the formal or ex Governor of Plateau State as he is already being described in some quarters, it is only his functions as Governor that has been temporarily suspended,
It is necessary to submit that whether acting on his initiative or pursuant to the Legislature's approval; it Is essential for the survival of (the rule of law for the President and the entire polity to always recognize the existence of limitations on presidential power generally and in the ease of emergencies in particular.
The Senate of the Federal Republic of Nigeria was right when it reversed the arrogation to himself by the President of vie power to promulgate laws and regulations, for Plateau state within the period of emergency. The President had in his broadcast, stated that he doubted If the Administrator will requite new laws to administer plateau State and that if the Administrator require new laws; It will be in the form of regulations which the Administrate will submit to the President for consideration by the Federal Executive Council and hereafter promulgation by the President himself.

In reversing the President this; the Senate stated as follows in its Resolution “----- all executive regulations during the period of emergency shall be subject to enactment by the National Assembly pursuant to Section 11 [subsection 4 of the 1999 Constitution". It needs to be added that comparatively and constitutionally, the business of governance during periods of emergency do not seem to be conducted , through the usual existing laws as the President thought to be possible, In England, during the period of emergency at the commence­ment of World War II; it was by the Emergency Powers ( Defence ) Act of 1939 and not by the normal law, that the Monarchy was empowered, to by Order in Council make regulations for inter alia securing the public safety, defense of the realm and maintenance of law and order during that period of emergency; and there then followed whole series of regulation to facilitate governance within that period of emergency; of which the details are in HALSBURYS STATUTO­RY INSTRUMENTS VOLUME 23.(1966).

In the state of emergency In the Western Nigeria, after the promulgation by Parliament, of the Emergency Powers Act of 1961 and upon that Act s emergence from storage into active operation on 29th May, 1962, there followed series of regulations on diverse issues of which the most Important, seems to be the Emergency Powers (General) Regulations L. N. 54 of 1962. Details of these regulations appear in the ANNUAL.VOLUME OF THE LAWS Of THE FEDERATION OF NIGERIA, 1962. Pertinently, under Section 5(1) of the Emergency Powers Act of 1961, any regulation made pursuant to that act, was to cease to have effect at the expiration of two months from the date upon which it came into operation; if before that expiration, it has not been approved by resolution, passed by both House of Parliament.

In the terms of President Olusegun Obasanjo's appointment of the Administrator for Plateau State or even the National Assembly resolution approving the proclamation of the slate of emergency; there seems to be a lot of undesirable lacunae In the area of exercise of exec­utive and legislative functions in that area of emergency. These lacunae may all go to support to support the preposition that the President’s conduct of the entire state of emergency affair is less than intra vires and Constitution or the rule of law generally.

Okoye is a legal practitioner in Lagos