State of Emergency : What the constitution says

culled from PUNCH, May 19, 2004

Under the miscellaneous provisions in Part II of the 1999 Constitution,
Subsection 1 of Section 305 provides that, "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."

After the publication, the president is required by subsection 2 to
"immediately 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."

Subsection 3 empowers the president 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.

By the provision of subsection 4, the request for the proclamation of a
state of emergency may also emanate from the state where "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) . and such situation does not extend
beyond the boundaries of the State."

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

Subsection 6 provides that, " 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.

Complementing the provisions of Section 305 is Section 45 of the
Constitution, which endorses the curtailment of the fundamental rights
listed in Chapter IV of the constitution in areas covered by the
proclamation of a state of emergency.

By implication, section 45 empowers the national assembly to make laws
considered reasonably justifiable in a democratic society in the
interest of defence, public safety, public order, public morality or
pubic health or for the purpose of protecting the rights and freedom of
other persons notwithstanding that such laws derogate from the
provisions of Sections 33 on right to life; 35 on right to personal
liberty; 37 on right to privacy; 38 on right to freedom of thought,
conscience and religion; 39 on right to freedom of expression and the
press; 40 on freedom of association; and 41 on freedom of movement. A
proviso to this special power conferred on the federal parliament
however warns, "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." This provision
suggests the empowerment of the federal legislature to make laws
curtailing the fundamental rights of citizens to the extent of dealing
with the existing threatening situation and without desecrating
democratic norms.

On the consequences of the proclamation of the state of emergency,
though the constitution does not state the form of the administration of
the territory under emergency rule or the required details of governance
in such area, the taking over of the executive power from the state
executive suggests and vesting same on an administrator appointed by the
federal government, and to whom the administrator is responsible,
suggests an automatic emasculation of the state legislature whose
continued existence during a period of emergency may create conflict in
governance and by implication, disrupt the peace process in the
territory under emergency rule.

The above constitutional provisions are similar with the provisions of
section 65 of the 1960 Nigerian Constitution under which the government
of Prime Minister, Sir Abubakar Tafawa Balewa, declared a state
emergency in the then Western Region on May 29, 1962, following the
fracas in the chambers of the region's House of Assembly in Ibadan.

Section 65 of the 1960 Constitution stated:

65. - (1) Parliament may at any time make such 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.

(2) Any provision of law enacted in pursuance of this section shall have
effect only during a period of emergency:

Provided that the termination of a period of emergency shall not affect
the operation of such a provision of law during that period, the
validity of any action taken thereunder during that period, any penalty
or punishment incurred in respect of any contravention thereof or
failure to comply therewith during that period or any proceeding or
remedy in respect of any such penalty or punishment.

(3) In this section "period of emergency" means any period during which-

(a) the Federation is at war;

(b) there is in force a resolution passed by each House of Parliament
declaring that a state of public emergency exists; or

(c) there is in force a resolution of each House of Parliament supported
by the votes of not less than two-thirds of all the members of the House
declaring tha t democratic institutions in Nigeria are threatened by
subversion.

(4) A resolution passed by a House of Parliament for the purposes of
this section shall remain in force for twelve months or such shorter
period as may be specified therein:

Provided that any such resolution may be revoked at any time or may be
extended from time to time for a further period not exceeding twelve
months by resolution passed in like manner.

Also complementing these provisions in the 1960 constitution was section
28 whose provisions were similar to the provisions of section 45 of the
1999 constitution.

The section 28 provided:

(1) An Act of Parliament shall not be invalid by reason only that it
provides for the taking, during periods of emergency, of measures that
derogate from the provisions of section 17, 20, 21 or 27 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:

Provided that nothing in this section shall authorise any derogation
from the provisions of section 17 of this Constitution except in respect
of deaths resulting from acts of war or any or any derogation from the
provisions of subsection (7) of section 21 of this Constitution.

(2) In this section "period of emergency" means a period of emergency
for the purposes of section 65 of this Constitution.

Sections 17, 20, 21, 27 provided for the fundamental rights of citizens.