Emergency Rule In Ekiti As The 1999 Constitution Holds

culled from GUARDIAN, October 26, 2006

The President of the Federal Republic of Nigeria, Chief Olusegun Obasanjo, has made a proclamation of a state of emergency in Ekiti State pursuant to the power conferred on him by Section 305 of the Constitution of the Federal Republic of Nigeria, 1999. This is the second time in two years that the President would be exercising the power to proclaim a state of emergency, the first being in Plateau on May 18, 2004.

In issuing the current proclamation, the President sought justification in what he referred to as breaches of the constitution by members of the Ekiti State House of Assembly. According to the President, the removal of the governor and his deputy was a 'clear case of usurpation of power.' This proclamation and the antecedent events leading to it are worth examining with a view to identifying a few legal and political lessons.

Was there actual breakdown of public order in Ekiti?

The condition precedent for the proclamation of the state of emergency relevant to the Ekiti case is contained in Section 305(3)(c) of the Constitution, namely, the existence of '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. The emphasis should be on the phrase 'actual breakdown of public order. Both the Black's Law Dictionary and the Oxford Advanced Learner's Dictionary identically defines 'actual' as 'existing in fact; real'. It follows that the sort of breakdown of public order contemplated by Section 305 of the Constitution must be such as is real as opposed to a contrived or simulated breakdown of public order. In the Ekiti case, where the Federal Government literally folded its arms and did nothing when the legislators removed the substantive Chief Judge and appointed an acting Chief Judge without complying with constitutional provisions; where unchallenged press reports stated that the President made it clear that only the Governor should be impeached otherwise the legislators should not count on his support; where the Police accorded all the factions full official police orderlies as distinct from regular police protection, there can be little doubt that the breakdown of public order was unreal. It was not an actual breakdown. Even if the President claims that he acted to avert a 'clear and present danger of actual breakdown of public order' he would still have to respond to the charge that he masterminded the 'clear and present danger'.

To that extent, one should feel no hesitation in concluding that the President ought not to have proclaimed a state of emergency in Ekiti State. This conclusion is no doubt fortified by the fact that there was no violence in Ekiti State. The citizens and, in all fairness, the combatants themselves were going about their lawful and not so lawful duties peacefully. When people were murdered in Ekiti and there were accusations that they were premeditated, no state of emergency was proclaimed. It would be difficult to convince many impartial observers that the conditions on the ground in Ekiti justify the proclamation.

Can the President suspend the executive and the House?

Professor Ben Nwabueze (SAN), the leading authority on constitutional law in this country, has argued with considerable force that the power given to the President under Section 305 of the Constitution is limited to mere declaration of a state of emergency and does not include the power to make laws and to execute them with respect to matters within exclusive state competence. It is difficult not to agree with him for Section 305 of the Constitution does not contain, as was the case with the 1960 and 1963 Constitutions, any clause permitting the National Assembly to make 'laws for Nigeria or any part thereof with respect to matters not included in the Legislative Lists as may appear to Parliament to be necessary or expedient for the purpose of maintaining or securing peace, order and good government during any period of emergency'. In constitutional democracies, particularly those operating written constitutions, it is not permissible for creatures of statutes such as the President to act outside the four walls of the statutes that created them. The President must limit his actions in respect of emergency situations to the provision of Section 305 of the Constitution. Unless he can locate the source of his power to suspend the Governor and the House of Assembly of Ekiti State in the Constitution or any statute validly deriving therefrom, the obvious conclusion is that he acted illegally in so doing. The point must also be made that the President cannot seek protection under section 11(4) of the Constitution for that section only empowers the National Assembly to make laws for a state where the House of Assembly is unable to perform its functions by reason of the situation prevailing in that state. From the available facts, the House of Assembly in Ekiti was not unable to perform its functions. As a matter of fact, the House a day before the proclamation elected new officers and took a number of other decisions in a peaceful atmosphere. Thus, the warrant for the suspension of the House cannot be section 11(4) of the Constitution.

The summary of the points canvassed here is that the President has no power under the Constitution or any law to suspend the State House of Assembly and the Executive in Ekiti State. While the statement made by Professor Nwabueze that 'the suspension of the elected Governor and House of Assembly of Plateau State and their replacement by an Administrator by the democratic government of President Obasanjo without authorisation by law must rank as perhaps the greatest tragedy to befall the Rule of Law in Nigeria' remains agonisingly true. The repetition of that tragedy in Ekiti State within two years is calamitous.

State of emergency, politics and human rights

Unlike what obtained in the West in the 1960s when draconian regulations were made pursuant to the Emergency Powers Act, 1961, the Sole Administrator 'nominated' - that was the President's exact word - for Ekiti State cannot in any way abridge the rights of Ekiti people as guaranteed by the Constitution and other laws. This is because he has no power whatsoever to make any law. As stated earlier, the current Constitution, unlike those of 1960 and 1963, does not permit the National Assembly to pass any Act in the mould of the Emergency Powers Act of 1961 in respect of which he could be permitted to make any regulation. At best, the Sole Administrator is an overseer of federal interests or presidential liaison officer. His office is unknown to the law. Any act of his that violates the rights of Ekiti people in any way would be null and void being unconstitutional.

The opposition in Ekiti cannot be restrained or restricted in any way by the Sole Administrator from participating in politics. He cannot stop public gatherings that comply with existing laws. The people have a right to sue him in his personal capacity for the enforcement of their fundamental rights in any court in that state.

Status of the governor and his deputy

Before the proclamation of a state of emergency in Ekiti State, there were litigations challenging the legality of the removal of the Governor and his Deputy from office by the House of Assembly of the state. The proclamation, if approved by the National Assembly, may have effectively removed the two politicians from office but it does not overtake the cases in court unless the courts take the erroneous and unhelpful view that they have become mere academic exercise. Given the controversy that surrounded the impeachment process, the polity would have to confront the issue of whether the Governor and his deputy were validly removed from office.

The fact that the President and his ministers have pronounced the impeachment unconstitutional even when they became aware that there were cases in court on the subject is but a sad reflection on the type of democracy we practice. Such pronouncements not being judicial are not binding on anyone. The people of Ekiti need to know whether Mr. Fayose and Mrs. Olujimi can be tried in the regular court on the allegations that led to the impeachment process in the house. Unfortunately, in this contribution, one cannot comment on the legality of the impeachment process, as the matter is already subjudice. Nevertheless, one can make the point that if our political actors fail to exercise adequate restraint in discharging the functions of their office, particularly in proclaiming a state of emergency, our democracy will remain stunted and bedevilled by the sort of confusion that we are witnessing in Ekiti. I believe that the time has come to begin to take a second look at our impeachment procedure in both sections 143 and 188 of the Constitution. Section 188(10) must be redrafted to permit the court limited jurisdiction on impeachment matters. The court should be able to declare a panel composed of cronies of a sitting Governor, as we saw in Ekiti, unconstitutional. In the same vein, there is no reason why the court should not have the jurisdiction to determine whether the required fraction of the legislators actually passed any of the resolutions envisaged in sections 143 and 188.

Excessive power of the President to proclaim a state of emergency

In two years, two states have had their legislatures and the executive arms suspended. Yet everyone agrees that the power to proclaim a state of emergency is an extraordinary one that must be used sparingly and only after consultation and dispassionate assessment of the conditions present in the country or any part of it. In the two cases, there have been doubts that the President acted dispassionately. The logical and sensible thing to do would be to tinker with section 305 of the Constitution a little. My proposal is that the President should not proclaim a state of emergency without consulting with the Council of State. This would ensure that the President regards the instrument of proclaiming a state of emergency as one of last resort.

The membership of the Council of State is fairly representative of the interests of other states of the Federation and should be able to offer calm advice to the President. If he chooses to disregard the advice of the Council, he is unlikely to get the approval of the National Assembly as the Senate President, the Speaker of the House and the 36 State Governors are members of the Council. The alternative proposal is to take a cue from section 5(4) of the Constitution on the power of the President to declare war between Nigeria and another country.

The section makes it clear that the President shall not declare a state of war between the Federation and another country except with the sanction of a resolution of both Houses of the National Assembly sitting in a joint session. We may insert a subsection into a section that makes it mandatory for the President to seek a prior approval of the National Assembly in a joint sitting before proclaiming a state of emergency. Either of these two proposals should assist in preventing possible abuse of the extraordinary power to proclaim a state of emergency.

What political lessons?

Politicians in Ekiti State and the elite must blame themselves for the current situation in that state. If they had toed the path of constitutionalism in the resolution of the crisis, it would have been impossible for the President to proclaim a state of emergency. The proclamation may not have been warranted or justified, nevertheless, they participated in simulating the conditions for it. They all played into the hands of certain interests that were bent on truncating democratic order in that state by all means. Politics should not be a matter of life and death if politicians truly desire to serve the people. The country will be at peace if this lesson is driven home.

All Nigerians must be troubled and concerned deeply that crises are looming in many parts of the country. The truth is that if a state of emergency is declared in two or three more states, the forthcoming elections would be imperilled. We all need to do our bit to ensure that the 2007 elections are free, fair and credible. It is doubtful that we can have free and credible elections in states supervised by Sole Administrators who are answerable to the person who appointed them.

The proclamation of a state of emergency in Ekiti once again raises the issue of how far politicians can be trusted. Mrs Olujimi, whom many people believe was encouraged to hold on to her mandate by persons in very high quarters, told the press that she was shocked by the proclamation. The point then is that if politicians cannot trust themselves, how can they expect the people to trust that they will deliver on their numerous promises. This is why it is unreasonable to align with mainstream politicians for whatever tactical advantages one might gain momentarily unless one is sure that the strategic end result will be to the benefit of the people and our democracy.

Conclusion

The proclamation in Ekiti has in my view compounded the series of illegalities in that state. There have been arguments to the effect that given alleged violations of the Constitution by all parties to the crisis, the Federal Government had no option but to proclaim a state of emergency in circumstances suggesting constitutional infraction. I do not share this view. We cannot resolve constitutional crises by violating the Constitution.

As the President himself rightly pointed out, one cannot put something on anything and expect it to stand; it will simply fall to the ground. Given the view that I hold that there was no condition of the actual breakdown of public order in Ekiti State, the proclamation of a state of emergency is not 'something' but 'nothing'; and it follows that you cannot put anything on anything and expect it to stand. It simply does not exist- at least not legally.

That being the case, my recommendation is that the National Assembly should refuse to approve the proclamation and urge the President to restore Ekiti State to the status quo. Things can then be done properly. That is the only condition for growing democracy in this country. We may not like those who hold political offices. Indeed, we may have a duty to ensure that they are gaoled forever or sentenced to death for their unpardonable criminal breach of trust, murder and rapacious looting of the treasury, but we will not help the rule of law and constitutionalism if we throw due process to the wind. That would tantamount to laying the foundation for fascism. Fascism, we must remind ourselves, thrives best in the cloak of the pursuit of good intentions and the welfare of the people. If democracy is as much about substantive rights as it is about the process for creating and protecting those rights, no arguments for abandoning due process can be right or sound.

Aturu is an attorney-at-law in Lagos