By Emeka U. Opara, Esq.*

Background

Seventeen years after, we are back to Anambra State, and another conjecturing of a state of emergency declaration.

An earlier version of this article appeared in The Guardian newspaper of March 2, 2004 under the title “The State of Emergency Conjecture”. It was during the presidency of Olusegun Obasanjo. Chris Ngige was the Governor of Anambra State. He fell out with his political mentor, Chris Uba. Ngige was kidnapped at some point, and an attempt was made to put someone in his place.

When that attempt failed, a court order was obtained, via a dubious move to enforce a citizen’s fundamental rights, purportedly declaring that the governor was no more the governor, having resigned by reason of a letter of resignation written and signed before he became governor but dated thereafter.

While all these were going on, including the obvious assault on our democracy and what was clearly an undermining of the Constitution, the Federal Government, including the federally-controlled police, seemed to look away, uninterestedly. Arsonists, apparently linked to those who wanted the governor out, was thrown into the mix, with the burning of certain state institutions. However, as soon as the dubious court order was obtained, the police swiftly removed from the governor his security paraphernalia, rendering him ineffective. This was in apparent obedience to, and acquiescence of, the dubious court order.

It was obvious that there was an unwillingness on the side of the Federal Government to bring to justice those who had grossly violated the foundations of the Constitution and committed felonies that were highly treasonable. In the wake of all these, some hawks close to the Federal Government started pushing for a declaration of a state of emergency in Anambra State. Curiously, it appeared that the Federal Government was looking for an omen. Ordinary citizens of the state were expected to take to the streets and at least demonstrate. Somehow, they kept their peace and seemed to shun an obvious trap.

It was against that background that this article was written in 2004. Seventeen years later, in 2021, another scenario is playing out in the whole of the South East, with Anambra State as the pivot. This time, Muhammadu Buhari is the President of the republic while Willie Obiano is the governor of Anambra State. However, the problem is not confined to one state as in 2004. A few months ago the speculation was with respect to Imo State. That seems to have been put in abeyance, if temporarily. Apart from the upsurge of violence in the South East states, there has been perennial violence in the North East, much of the North West and most of the North Central states, and these have been more serious and more sustained than what is now playing out in the South East.

In what is arguably the most controversial judgement in Nigeria’s history, the Supreme Court removed the governor of Imo State and installed the candidate that came fourth, in a judgement delivered on January 14, 2020. Sometime thereafter, a separatist group, the Indigenous People of Biafra (IPOB), which the Buhari Government had hastily proscribed under controversial circumstances without proscribing herdsmen groups that have been terrorizing communities in the Middle Belt and Southern states, engaged in a confrontation with the police and other security agencies over land in Orlu, Imo State which the governor was rumored to have secretly given out to the Federal Government for its controversial RUGA.

The Buhari Government responded in a high-handed manner, up to bombing Orlu and other surrounding parts of the South East. On 4th April 2021, following upon political confrontation between aides of Governor Uzodinma and former Governor Rochas Okorocha, the State Police Headquarters and the Owerri Prisons were raided in a commando style by an amorphous group that, for want of a better name from then onwards, became known as Uknown Gun Men.

The Buhari Government responded with its signature – sending in more troops and other security agents into Imo State. In response, there was an escalation in the whole of the South East of the killing of security personnel and the burning of state assets like INEC offices, police stations and their vehicles. In a spiral, there was a brutal clampdown on civilians, especially youths, in Imo State and other South East States. Not surprisingly, hawks in the Buhari government started calling for a state of emergency to be declared in the South East. The body language of President Buhari does not show that he has not been giving more than a listening ear to such suggestions.

Of recent also, there have been reports of a secret memo purportedly written by the Minister of Justice and Attorney-General advising the president to suspend the constitution and declare martial law in the whole country.

Gubernatorial election in Anambra State is around the coming. There have been an upsurge of killings of civilians and security personnel, burning of private and public buildings and other forms of violence. Suddenly, Mr. Malami, the Attorney-General came out in the open to state that the President may declare a state of emergency in Anambra State. No, the authorities have not come up to tell us the real identity of the perpetrators of the violence, blamed on Unknown Gun Men.

Against these background issues, I hereunder examine the circumstances under which the Constitution of the Federal Republic of Nigeria 1999 (the constitution) would allow “proclamation” of a state of emergency, the condition it lays down for legitimizing it, and the acts and measures which the federal government may validly take in a period of validly declared state of emergency in any part of the federation. However, it is important to first of all understand the constitutional and historical antecedent of the present constitutional provision on state of emergency.

The Constitutional and Historical Antecedent of State of Emergency Provision

Section 65(1) of the 1960 Constitution gave the federal parliament power to make laws for the federation or any part thereof on matters not included in the Exclusive Legislative list during any period of emergency. Under section 65(2) such laws would have effect only during the period of emergency. Section 65(3) specifies what a “period of emergency” was. There were only three, and that included an amorphous period when “there is in force a resolution passed by each House of Parliament declaring that a state of public emergency exists.”

It is important to note that it was under this amorphous provision which does not require a special resolution that the then Prime Minister Tafawa Balewa on May 29, 1962 brought a motion for a state of emergency to be declared in the Western Region up till and including the end of December 1962. It is also important to note that the Prime Minister in his speech on the floor of the House of Representatives noted and tried to debunk the accusation that his government was siding one of the sides to the conflict in the Western Region. See Eric Teniola, How Balewa Declared State of Emergency in The West in 1962 (2017); See also Excerpts by Urhobo Historical Society.

Many have argued that the downward plunge of Nigeria started at this point. It is clear that accusations of one-sidedness against successive federal governments have not subsided. See Sam Eyoboka, 60 YEARS ON: Nigeria at The Edge of The Precipice – Danjuma, Dongoyaro, Lekwot, Others’ Group, Vanguard Newspaper, September 27, 2020, citing Dr F. A. Ajayi, SAN, In Our Days, pp. 467-468.

It is against the background of the provision in the 1960 Constitution and the events that followed the first time that provision was relied upon that one ought to look at the 1999 Constitution. It is therefore for the reason of our historical development that the framers of the 1999 Constitution sought to introduce elaborate checks to forestall any abuse of the powers given to declare a state of emergency. It ought to be borne in mind that whereas under the First Republic the power was given to Parliament, in the present Fourth Republic the power is given to one person, the President, with checks to prevent abuse.

When a State of Emergency may be declared Under the 1999 Constitution

Section 305 of the 1999 Constitution makes elaborate provisions on the procedure for a declaration of a state of emergency. It states as follows:

  1. (1) 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.

(2) The President shall immediately after the publication, transmit copies of the Official Gazette of the Government of the Federation containing the proclamation including the details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation.

(3) The President shall have power to issue a Proclamation of a state of emergency only when –

(a) the Federation is at war;

(b) the Federation is in imminent danger of invasion or involvement in a state of war;

(c) there is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security;

(d) there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;

(e) there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation;

(f) there is any other public danger which clearly constitutes a threat to the existence of the Federation; or

(g) the President receives a request to do so in accordance with the provisions of subsection (4) of this section.

(4) The Governor of a State may, with the sanction of a resolution supported by two-thirds majority of the House of Assembly, request the President to issue a Proclamation of a state of emergency in the State when there is in existence within the State any of the situations specified in subsection (3) (c), (d) and (e) of this section and such situation does not extend beyond the boundaries of the State.

(5) The President shall not issue a Proclamation of a state of emergency in any case to which the provisions of subsection (4) of this section apply unless the Governor of the State fails within a reasonable time to make a request to the President to issue such Proclamation.

(6) A Proclamation issued by the President under this section shall cease to have effect –

(a) if it is revoked by the President by instrument published in the Official Gazette of the Government of the Federation;

(b) if it affects the Federation or any part thereof and within two days when the National Assembly is in session, or within ten days when the National Assembly is not in session, after its publication, there is no resolution supported by two-thirds majority of all the members of each House of the National Assembly approving the Proclamation;

(c) after a period of six months has elapsed since it has been in force:

Provided that the National Assembly may, before the expiration of the period of six months aforesaid, extend the period for the Proclamation of the state of emergency to remain in force from time to time for a further period of six months by resolution passed in like manner; or

(d) at any time after the approval referred to in paragraph (b) or the extension referred to in paragraph (c) of this subsection, when each House of the National Assembly revokes the Proclamation by a simple majority of all the members of each House.

Subsections (3) and (4) of Section 305 stipulate the conditions one of which must exist before a state of emergency may be validly proclaimed. There are nine of such specific situations:

  • When a federation is at war;
  • When the federation is in imminent danger of invasion or involvement in a state of war;
  • When there is actual breakdown of public order or public safety in the federation or any part thereof to such extent as to require extraordinary measures to restore peace and security;
  • There is a clear and present danger of an actual breakdown of public order and public safety in the federation or any part thereof requiring extraordinary measures to avert such a danger;
  • There is an occurrence or an imminent danger, or the occurrence, of any disaster or natural calamity affecting the community or a section of the community in the federation; or
  • The Governor of the state requests the President to issue such a proclamation if the conditions under the (c), (d) or (e) part here exist and a two-thirds majority of that state’s House of Assembly has given the Governor the sanction to make such a request as provided under sub-section (4).

There is no risk of misinterpreting the powers of the President under paragraphs (a) and (b). However, paragraphs (c) to (e) present particularly doubtful room for those set on mischief. It is only after paragraph (e) and before (f) that the word “or” is used. Two alternative interpretations seem possible here. The first is that the President has the power to proclaim a state of emergency within the whole federation or any part or parts thereof under paragraphs (a) to (e) regardless of whether the governor makes a request under paragraph (f) where any of the conditions under paragraphs (c) to (e) exists. The second is that where the conditions under paragraphs (c) to (e) exist in one state only or per time in a few non-contiguous states, the President can make a proclamation only after the Governor in whose state the conditions exist makes a request pursuant to paragraph (f) and in accordance with the stipulations of sub-section (4). However, sub-section (5) appears to settle this issue. It provides that in any of the situations where sub-section (4) applies, the President “shall not” issue a proclamation unless the governor fails within a reasonable time to request him to do so.

Since the governor can validly make such a request only with the sanction of two-thirds of the state House of Assembly, can the governor be said to have failed to make a request within a reasonable time if the state assembly has not even made the necessary resolution? In other words, the determination as to whether the facts in a state or a part of it fit into the situation contemplated by paragraphs (c) to (e) of subsection (3) (i.e., whether the facts justify the setting in motion of the first step in the procedure towards a declaration of a state of emergency) can only be made by that state’s House of Assembly.

The National Assembly cannot even presume to make such determination so long as there is a functioning House of Assembly in the state concerned.

There has been for some time a presupposition, rife in the air, that in a period of a state of emergency in a state of the federation, the National Assembly takes over the law-making powers of the state House of Assembly. This is an unfortunate falsity. The constitution makes no contemplation on the cessation of federalism under any condition whatsoever, except by the strenuous amendment of the constitution itself under Section 9 of the structure of the federation to give the federal authorities executive and legislative powers in a region (state) on those matters left to the states. This was so made to avert a resort to political self-interest as the actors of the First Republic have been consistently accused of. To imply such power and construe it so without an amendment of the Constitution would amount to writing in a death sentence to the Constitution itself.

It would also grossly be contrary to section 1(2) of the Constitution which stipulates that “the Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of the constitution” (emphasis mine)

There is a limit to contemplation. If the constitution should contemplate the disappearance of the governmental structures of a part of Nigeria, the constitution must then necessarily contemplate such disappearance on the federal level. Who would legislate for the whole country? Should the President and the National Assembly respectively take over the executive and legislative functions of a state under the present constitution, it would fully amount to a coup d’etat. The whole Nigeria, not only the state involved, would from that moment no longer be operating a constitutional government (at any rate not the 1999 Constitution), as the constitution would have been overthrown. This would be consonant with the classic definition of coup d’etat. (cf Lakanmi’s case (1971) 1 U.I.L.R. 201; Hans Kelsen’s Pure Theory of Law)

Assuming for the sake of argument, that there is no functioning House of Assembly in a state, and the National Assembly, by a most insanely flexible stretch of the doctrine of necessity assumes the function, the National Assembly would by a two-thirds majority resolution still have to request the governor to make the request of the President. The National Assembly, in acting for such a state in such a situation, cannot bypass the governor and empower the President, because they would be acting not as legislators of the Federal Government but in the capacity of the state House of Assembly under sub-section (4).

In summation on this point, nowhere does the constitution contemplate that the steps and conditions stipulated by it could be circumvented. Anything otherwise would be ultra vires. It appears from a clear reading of subsections (3)(f), (4) and (5) of section 305 that before a governor can be removed from participating in the build up to a proclamation of a state of emergency within a section of a country entirely within his state, the following situations must exist conjunctively:

  • There must be no sitting governor (substantial or acting), and
  • The House of Assembly in the state must be de factono longer in existence (i.e., totally unable to sit and perform their legislative functions).

It is still arguable that where there is no governor of a state and no House of Assembly (a possibility of extreme remoteness), in acting for the state the first function of the National Assembly would be to elect an acting governor in accordance with the order of succession, then pass a resolution mandating the acting governor to request the President to proclaim a state of emergency if the conditions exist.

How it may be declared

If the conditions stipulated by subsections (3), (4) and (5) (as the case may be) are satisfied, the first step in the actual proclamation would be taken by the President, not the National Assembly. The President will issue a proclamation. A proclamation to this effect is issued only if it has been published in the official gazette of the federation, not by a political announcement on the television or on the pages of a tabloid by a government spokesperson. This is the provision of section 305(1). However, the proclamation in the gazette does not alone mean that a state of emergency has become operative. It has to await an approval by each house of the National Assembly in a resolution under sub-section (2). However, a consolidated reading of sub-section (6) therewith suggests that when it is proclaimed, the President may take initial steps to ready certain things towards putting it into effect, subject to approvals, for example putting the police, the army or any civil defence force into logistical preparations. If the National Assembly is in session, there must be a vote on a resolution for approval within two days of presidential proclamation; if not in session, this must be done within ten days, contemplating an emergency session in that instance.

It is therefore abundantly clear that the National Assembly cannot even contemplate a resolution under section 305 when there has been no proclamation by the President published in the official gazette. It cannot be denied that the National Assembly has a general power of passing resolutions. It may pass resolutions noting the situation in the federation or any part of it and suggest a solution to it, although it must be careful in its language, otherwise it may be unwisely dabbling into a matter constitutionally not ripe for it and subjecting itself to political accusations. For purposes of a resolution under section 305, however, the National Assembly can only pass a resolution approving or refusing to approve a proclamation already made by the President, and the President must have acted in accordance with the constitution, otherwise any approval by the National Assembly cannot legitimize an ultra vires action, neither could it even disapprove an action that does not exist de jure.

In the final analysis, the President cannot hide behind the National Assembly and cannot use it to achieve an unconstitutional end.

Measures That May Be Taken During a Period Of Emergency  

Even some of the protagonists of the emergency declaration viewpoint would be surprised at the ignorant suppositions of those who have taken the drumbeat from them and partly out of fear and partly from uninformed support have beaten to a crescendo what should have been ignored as an attention-getting attempt. There is nothing sacrosanct about a state of emergency, and the constitution does not even begin to elevate it to any level of sacrosanctity. A period of emergency is a constitutional aberration anytime and the constitution regards it as such.

Owing to its possible political abuse, the constitution provides adequate checks, to the end that the need that informs the giving of such powers is not replaced with political expediency.

The most important checks in the constitution are found in the procedure stipulated in section 305 of the constitution itself. The wisdom of the drafters of the constitution in this section is that the president cannot really pass the buck of the decision. It is also because the country is (supposed to be) a federal democracy that in a situation where the facts necessitating a declaration are confined within one state per area, that the power to initiate the procedure is given not to the Federal government but to the nearest representatives of the people of the state within the state government – the state House of Assembly. From there it moves up to the state Governor. It is also because the constitution contemplates that the paraphernalia for solving the problem must have gone beyond the capabilities of the state and that if left to the state might spread beyond it and even engulf the whole federation, that the build-up to the declaration ultimately involves the federal executive, subject to sanction through resolution by the federal legislature, otherwise the tenets of federalism would not have allowed the involvement of the federal government at all.

During a period of emergency, the police powers of the state are heightened (“state” is used here in the jurisprudential sense of the whole federation). What would ordinarily be ultra vires under normal conditions would be intra vires the constitution, subject to certain conditions. It would mostly be in a period of properly declared emergency that certain restrictions and derogations would be valid under the constitution.

Section 45(2) of the Constitution provides:

“An act of the National Assembly shall not be invalidated by reason only that it provides the taking, during periods of emergency, of measures that derogate from the provisions of section 33 or 35 of this constitution; but no such measures shall be taken in pursuance of any such act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency.”

It is beyond altercation, either of grammar or on legislative intendment, that this provision on derogation lays down clear conditions. Unless all the conditions contained therein are satisfied, any action by the government cannot pass constitutional muster. Consequently, it can be gathered from section 45(2) that,

  • Although a period of emergency might have been properly promulgated by the president under the relevant section of the constitution, there can be no derogation based on such promulgation until the National Assembly enacts an act stipulating measures that could be taken which, even though ordinarily derogatory and contrary to the constitution, would still be valid because they are taken during a period of emergency;
  • Even if the National Assembly enacts such an act, a derogatory measure taken based thereon would still be beneath the acceptable constitutional threshold except such a measure is “reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency.”
  • A proviso to this sub-section emphasizes that the National Assembly cannot by law authorize derogation on the right to life except in respect of death resulting from acts of war, and that under no condition can an ex postfactor law be validated. A period of emergency cannot therefore be a licence for extra-judicial killings and unconstitutional arrests, abductions and disappearances as we have witnessed recently in Imo State and other South Eastern states.

Nowhere in the Constitution is it provided that the President is given power, under the constitution, to replace the Governor or the executive government of a State and replace the governor with a military administrator. Nowhere does the Constitution permit the president to usurp the powers of the Governor either directly or by proxy. Nowhere is it provided that the National Assembly is given the power to take over the legislative function of a state House of Assembly or to sack a functioning and functional legislative body of a state. The arguments so far muting such possibilities have been and can only be outside the Constitution. That a president could simply by proclamation take up a power beyond the widest ambit of constitutional government is a proposition beyond the outermost edges of reason. That such power can be implied when there is nothing remotely suggesting it in the constitution is, with due respect, symptomatic of constitutional lunacy.

I am aware that during President Obasanjo’s tenure attempts or near attempts were made to remove some governors unconstitutionally. This essay has copiously captured what happened with Chris Ngige of Anambra State. The kite flown on using the provision on state of emergency to remove him did not and could not fly. The hawks flew the same kite with respect to Joshua Dariye of Plateau State. It did not also fly. It could not have under Section 305. However, Dariye was impeached by a contrived House of Assembly which lacked the requisite quorum. He was later to return to complete his term after the Court of Appeal nullified his impeachment, a decision upheld by the Supreme Court. The same kite was also flown with respect to Peter Ayodele Fayose of Ekiti State. When the hawks met the brickwall in section 305 they used the House of Assembly to impeach him under controversial circumstances. He was subsequently re-elected for a second term. In essence, Section 305 is yet to come under judicial interpretion.

Several centuries later, the dictum of the celebrated Late American jurist, Chief Justice John Marshal, continues to inform the interpretation of written constitutions. In Marbury v. Madison (1803) 1 Cranch 137, Marshal CJ had uttered the eternal dictum:

“To what extent are powers limited, and to what extent is that limitation committed to writing, if these limits can, at any time, be passed by those intended to be restrained? THe distinction between a government with limited and unlimited powers is abolished if these limits do not confine the persons upon whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be controverted that the constitution prohibits legislative acts repugnant to it or that the legislature can amend the Constitution by an ordinary means.”

What is the purpose of a written constitution wherein pains have been taken to impose checks and balances against abuse of governmental powers if it exists only on paper? It is evident from the combined reading of section 305 and 45 (2) that after passing a resolution legitimizing a proclamation of a state of emergency, the National Assembly cannot just sit back and allow the president or the executive arm free rein. At any rate, after the promulgation and the resolution, no jot of the fundamental human rights of the citizens can still be validly infringed upon. But by an act the National Assembly can make any law which could have amounted to a temporary alteration (within the period of the emergency) of the fundamental rights of the citizens within the area of the emergency. Even so, this cannot be done without complying with the requirements of section 9 of the Constitution which requires a four-fifths majority before Chapter IV of the Constitution on fundamental rights can be amended. The advice in the denied memo advising the President to “suspend the Constitution and introduce martial law” can only be achieved by an insane disregard of the constitution, a virtual coup d’etat by a government against itself.

In a situation, therefore, where the army is called in to evacuate an area of a state because of a natural disaster, the National Assembly could make a law with the requisite majority allowing the army to cordon off the area and prevent people from moving into the area (contrary to their right to freedom of movement under section 41) or to move people out of their houses (contrary to their rights under sections 37, 41 and 44), to save them from such disaster. By use of a civil defence and medical corps the executive, acting under such law could cordon off a part of a federation during an epidemic in such area so as to save the rest of the populace in other parts. so long as such measures are, in the language of section 45, reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency.

In its judgement in Aksoy v. Turkey: ECHR 18 December 1996, the European Court of Human Rights stated that even though the national authorities of a state party to the European Convention on Human Rights (in this case, Turkey) are given a wide margin of appreciation in deciding the extent of derogations necessary in a period of emergency, there must still have to be an “European Supervision” to ensure that such a state does not go beyond the “extent strictly required by the exigencies of the moment” (Para 68, citing its earlier judgement in Brannigan and McBride v. United Kingdom: ECHR 26 May 1993, Series A No. 258 B. pp. 49-50 para 43). Although the European system of human rights is not part of our judicial system, the reasoning in the above cases is of universal persuasion, considering that the African Charter on Human and Peoples’ Rights forms part of our laws and systems and that it is similar at least in some wording to the European and inter-American systems.

Conclusion

We have seen here that a declaration of a state of emergency can derive validity only from section 305 of the Constitution. We have also seen, from an analysis of that section and section 45(2), that no matter how liberal we are in interpreting the Constitution, the provisions cannot accommodate the powers being trumpeted on behalf of the President and the National Assembly in respect of promulgation of period of emergency. Whatever be the plan of the protagonists of a promulgation/declaration of a state of emergency, the plan, as we hear it being rumored, cannot be achieved through the constitutional gateway. We can only conclude here that the mercenary exercises being carried out to ensure success for such a plan, as far as constitutionally possibly, amount only to a floated fiction.

This conclusion informs the title of this piece. A conjecture is an opinion or conclusion formed on the basis of incomplete information. In scientific terms, a conjecture is a guess about something which has not been subjected to rigorous scientific scrutiny. It is something less than a hunch. I submit that the protagonists of state of emergency in Nigeria, especially in the South Eastern States, are engaged in a conjecture. That does not mean that the land has been totally rid of quacks.

* Emeka U. Opara is a Lagos-based attorney.