`From May 1962 to May 1963:`

State of Emergency in Western Nigeria and in Nigeria

By

Mobolaji E. Aluko, Ph.D.

alukome@aol.com

June 2, 2004

On Tuesday, May 18, 2004 , President Obasanjo , citing Section 305 of the 1999 Constitution, imposed a state of emergency on Plateau State , suspending the elected Governor Joshua Dariye and the State House of Assembly in the process. He accused the governor of failing to act to end a cycle of bloodletting violence between the Plateau State 's Muslim and Christian communities that might have claimed as many as 2,000 lives since September 2001. In a nationwide radio broadcast, Obasanjo stated that Dariye had been an indecisive governor and that his failure to intervene firmly to stamp out sectarian violence had led to the 2 May massacre in the town of Yelwa . Obasanjo appointed a retired army general, Chris Mohammed Alli, who has since been talking tough, as interim administrator for the next six months.

Only now are new emergency power regulations being proposed and tabled for consideration by the National Assembly, after that same assembly had approved Obasanjo’s moves on May 19 - before the tabling. In a letter to the NA entitled "State of Emergency ( Plateau State ) Proclamation: Emergency Powers Regulations," and dated May 21, 2004 , the president noted that "sequel to the state of emergency, there is urgent need to make consequential regulations for the administration of the government of the state."

"The regulations are made under Section 3 of the Emergency Powers Act 1961 (as modified). Under Section 5 of the said Act, every regulation so made requires approval by resolution of each House of the National Assembly within two months of the coming into operation of the regulations," he stated in the letter.

Section 5 of the Act states, "Every regulation made under Section 3 and every order or rule made in pursuance of such a regulation shall, without prejudice to the validity of anything lawfully done thereunder, cease to have effect at the expiration of a period of two months from the date upon which it came into operation unless, before the expiration of that period, it has been approved by resolutions passed by both Houses of Parliament."

The best legal minds in the country – from Chief FRA Williams, to Professors Nwabueze and Itse Sagay, as well as the president of the Nigerian Bar Association, Chief Wole Olanipekun and the fiery Gani Fawehinmi – conceding that the president could invoke emergency powers, have condemned the dismissal moves as unconstitutional, particularly when it (and the new powers that the president seeks) was based on a “spent”, “omitted” Emergency Powers Act 1961 regulations – according to the index to the Laws of the Federation of Nigeria 1990.

The regulations which the President Obasanjo is now seeking National Assembly approval for are: Emergency Powers (General) Regulations 2004; Emergency Powers (Procession and Meetings, etc); Emergency Powers (Reporting of Persons) Regulations 2004; Emergency Powers (Control of Arms and Explosives) Regulation 2004; Emergency Powers (Curfew) Regulations 2004; Emergency Powers (Detention of Persons) Regulations 2004; Emergency Powers (Restriction Orders) Regulations 2004; and Emergency Powers (Protected Places) Regulations 2004.

Yet the National Assembly has, on June 1, again passed these new regulations, after “helping” the president’s non-performing legal team by deleting references to the spent 1961 regulations and referring to them instead as bills.

Can you imagine? The bills sound pretty draconian, don’t they – as if we were back in a military regime. In fact, also on June 1,one week after two Plateau State indigenes challenged the declaration of state of emergency in the state, a coalition of human rights activists filed another suit at the Federal High Court, Abuja , challenging the consitutionality of the declared state of emergency. They are Mr. Chima Ubani for and on behalf of Civil Liberties Organisations (CLO), Dr. Beko Ransome-Kuti for Centre for Constitutional Governance (CCG), Moshood Erubami for Campaign for Democracy (CD), Luke Aghanenu for the National Association of Democratic Lawyers (NADL), Musa Ohimini Alachanu for the National Association of Nigerian Students (NANS) and Wale Okunniyi on behalf of Youth Vigil for Democracy. Others are Shehu Sani for Civil Rights Congress, Ledum Mitee on behalf of Movement for the Survival of Ogoni People (MOSOP), Festus Okoye, for Transition Monitoring Group (TMG), Edetean Ojo on behalf of Media Right Agenda (MRA), Joe Okei Odunmakin, for Institute of Human Rights and Democratic Studies and Abiodun Aremu on behalf of Movement for Independent Political Action (MIPA), Dr. Jubril Ibrahim on behalf of Citizen Forum for Constitutional Reform, Potter Lapir Dapub for the Middle Belt Progressive Movement and Olawale Fapohunda on behalf of Electoral Reform Network.

In the suit filed on behalf of the human rights activists by the Lagos-based Senior Advocate of Nigeria, Chief Gani Fawehinmi, those cited as defendants are President Olusegun Obasanjo, Federal Attorney-General, Chief Akinlolu Olujimi (SAN), Sole Administrator of Plateau State, Major General Chris Mohammed Alli and Adolphus Wabara, the Senate president. Other defendants are the Speaker of the House of Representatives, Alhaji Bello Masari, suspended Governor of Plateau State, Chief Joshua Dariye, his deputy, Chief Michael Bot-Mang, the Plateau State House of Assembly and the Plateau State Attorney-General.

Is there any lessons to be learnt from history, when arguments of “the end justifies the means” are made to make controversial laws that are unconstitutional? Plenty – but just one should be mentioned here: that you never know where a particular action might end as one illegality is used to cover another illegality: Unintended consequences they are called.

On May 13, 1962 , enumeration during the first really Nigerian census began, and continued for two weeks. [Due to large-scale irregularities, the results were eventually cancelled, and the census redone more than a year later, November 5-8 1963 .]

On May 19, 1962 , at a meeting of the Western and Mid-Western executive committee of the Action Group, Chief SL Akintola, then premier of the AG-controlled Western Nigeria , was forced to defend himself for anti-party activities.

Source: " Nigeria : Yesterday, Today and...?", J.O.Ojiako, (1981). Africana Educational Publishers (Nig.) Ltd, Onitsha , pages 96 ff.

At the party’s annual convention held in January 1962 at Jos, the bitter disagreements among the leaders of the party were brought into the open. The dispute was caused largely by differences on tactics between Chief Samuel Ladoke Akintola, the then Premier of the Western Region and the deputy leader of the party who advocated that the Action Group should enter a Federal Coalition Government, and Chief Obafemi Awolowo, Leader of the Opposition in the Federal Parliament, who strongly opposed this view and also supported a more radical policy in internal affairs.

The conflicts involved more than party discipline and a power struggle between the two men. Since 1960, Chief Awolowo, sensing the growing discontent and grumbling among Nigerian Youth, had attempted to woo their votes by transforming the Action Group from a Yoruba-based, Western Regional party into a National Party with a radical socialist outlook. He demonstrated that Action Group had no future without it. The conflict within the Action Group became a battle between the young radicals led by Awolowo and the businessmen and traditional rulers led by Chief Akintola.

Late 1961, Chief Awolowo asked a group of young party leaders to draft a series of working papers defining democratic socialism. These papers were brought before the Action Group Federal Executive in December when they were derided by Chief Akintola as the work of revolutionary babes who haven’t the political astuteness to gain the party a single vote. Also Chief Akintola refused to accept the continued push by Chief Awolowo and the Youngmen to campaign both in the North and the East.

By a vote of 81 to 29, it was decided that Akintola be dismissed from the party and that he resign his premiership.

He refused. On May 20, Federal Executive Committee of AG decided to remove him as Deputy Leader of the party and premier. A majority of the legislature also signed a letter send to the Governor of the Western Region, Sir Adesoji Aderemi, the Ooni of Ife, asking that Chief Akintola to be dismissed. Accordingly, on May 21, the Ooni obliged, stating that “he was convinced that he (AKINTOLA) no longer enjoyed the support of the members of the House of Assembly.” Alhaji Dawodu Soroye Adegbenro was asked to form a cabinet, which was sworn in May 23. Rather than work from the premier’s office (which remained forcibly “occupied” by Akintola and his supporters), Adegbenro worked from his home residence.

On Friday, May 25, a House of Assembly meeting called to debate a motion of confidence in the new government ended abruptly with a free-for-all fight involving the throwing of chairs. This caused the Prime Minister to call for a special session of the Federal Parliament for 29^th May.

On May 29, 1962 , in the Federal House in Lagos , the Prime Minister, Sir Abubakar began a chain of events with the following statement:

That in pursuance of section sixty-five of the Constitution of the Federation it is declared that a state of public emergency exists (IN THE WESTERN REGION OF NIGERIA) and that this resolution shall remain in force until the end of the month of December, nineteen hundred and sixty-two.”

He then went on to give historical reasons why he thought his motion should be supported by those present.

After his lengthy speech, Chief Obafemi Awolowo, leader of Opposition in the Federal Parliament, and Leader of the Action Group that was the ruling (but then conflict-ridden) party in the Western Region, said:

I beg to move the following Amendment to the Motion already proposed by the Prime Minister:

“To delete all the words of the Motion after – That – and substitute – “This honourable House declares that having regard to the provisions of section 65 of the Constitution of the Federation of Nigeria a state of public emergency does not exist.”

He then went on to argue that the motion was discriminatory, and would amount to a gross misuse of power if approved.

After voting, Ayes were 32, Noes were 7 and Abstention – 2, and the motion was passed, giving the Federal Government constitutional powers to take over the administration of Western Nigeria . Thirteen Emergency Powers (General) Regulations 1962 were rapidly passed by Parliament on the same day, and Senator the Hon. Dr. Moses Adekoyejo Majekodunmi was appointed the Administrator of Western Nigeria. [He resumed work in Ibadan on May 31, 1962 .] 24 Commissioners to head ministries and advise (including six Obas as advisers: the Awujale of Ijebuland, the Osemawe of Ondo; the Olubadan of Ibadan, the Olu of Warri, the Olu of Iwo, Oba of Benin) were appointed on June 4, 1962. On May 30, 1962, restriction orders were served on 15 leading political figures in Western Region (including Awolowo, Akintola, Adegbenro, Rosiji, Fani-Kayode, etc), and following a subsequent order on 35 additional persons, one of them , Sam Ikoku, the Action Group’s Federal secretary, fled to Ghana and took refuge there.

On June 6, 1962, Alhaji Adegbenro, who had been chosen as new leader by the Action Group to replace Chief SLA Akintola went to the Supreme Court, and lost in a decision given on July 7.

Ibid., pages 118 ff.

ALHAJI ADEGBENRO CHALLENGED THE EMERGENCY POWERS

Two interlocutory motions seeking the Federal Supreme Court's authority to restrain the Western Nigeria Administrator from restricting them until they had argued their substantive motions
challenging the validity of the Emergency Powers Act operating in Western Nigeria were filed by Alhaji Adegbenro and Chief Rotimi Williams, legal adviser to the Action Group, who had also been restricted.

The interlocutory motions were dismissed by the Supreme Court on June 7, on the grounds that the Court was unable to say that Parliament could not legislate in appropriate cases for the restriction of the movements of individuals except in case of war, and would therefore refrain fro the present from deciding the validity of the Emergency Powers Act.

On July 7, 1962 , the Supreme Court gave judgement on the substantive motions filed by Alhaji Adegbenro and Chief Williams, and also on a motion filed by Chief Akintola challenging the validity of his removal from the Premiership. Its rulings were as follows:'

(1) By three votes, including that of the Chief Justice (Sir Adetokunboh Ademola), to one the court held that "the Governor cannot validly exercise the power to remove a Premier from office except in consequence of proceedings from the floor of the House of Assembly", and it therefore declared Chief Akintola's dismissal invalid. Mr. Justice Lionel Brett, in a dissenting opinion, said that "always assuming good faith, the Constitution does not preclude the Governor from acting on any information which he considers reliable", and that it would be unwise to apply in practice unwritten conventions of the British Constitution to the provisions of Nigeria's written Constitution.

(2) The court held that the Emergency Powers Act and its regulations were constitutionally valid and did not exceed the powers of the] Federal Parliament, and that there were ample grounds for the restriction placed on Alhaji Adegbenro's movements in the interests of peace and avoidance of bloodshed. Alhaji Adegbenro's legal advisers stated afterwards that they would appeal to the Privy Council in both the case in which it was involved.

(3) The court found that the restriction order imposed on Chief Williams, who had acted as chairman of a conciliation committee which sought to bring together the two factions of the Action Group, was unreasonable and unjustified, and directed that it should be set aside. A new restriction order, however, was served on Chief Williams later the same day.

Following the split in the Action Group, Chief Akintola's supporters formed the United Peoples Party, which secured control of the Ibadan city council on July 16, when 35 of the 46 members announced their support for the new party. The Ibadan High Court made an interim order on the following day, restraining Chief Awolowo and his supporters from operating the Action Group's accounts in all banks, after two U.P.P. members had applied to the court to share the Action
Group's assets between "the two factions in the party."

A “ West Africa ” editorial titled “Verdict” of June 16, 1962 is most instructive:

Clearly, Alhaji Sir Abubakar’s decision to declare an emergency strengthened Nigeria in the eyes of the world. In headlines, the story was simple. Rioting had erupted in the Western Region. The federal government immediately squelched it. After a few moments of wavering, Nigeria quickly recaptured its image of stability. Nigeria still was a safe place for investment.

Viewed domestically, however, the federal action had some disturbing sides. The Prime Minister seemed to attribute most of the blames for the crises on Awolowo. He chided the Action Group leader for trying to move too fast on questionable constitutional grounds in ousting Akintola. But he also seemed to ignore that a small minority, by screaming and chair throwing, frustrated the House majority and achieved exactly what it wanted. There was no doubt that Awolowo and his followers, by trying to avoid an election, moved on questionable ground. But the Akintola people had recourse in the courts.

Much of the federal government oratory also gave the impression of a complete breakdown in law and order in the West. The breakdown, however, occurred on the floor of the House; the rest of the Western Region was tranquil, although no one can be certain what the situation might have been if the federal government had not moved in.

On June 20, 1962 , the political temperature of the country was increased: Sir Abubakar Tafewa Balewa established a commission of enquiry headed by Justice G.B. Coker to probe the business operation of six statutory corporations in Western Nigeria since October 1, 1954

The Coker Commission enquiry opened on July 23, 1962 . On September 22, Chief Awolowo, whose movements had been earlier restricted to just within half-a-mile of his official residence, was now placed under house arrest. On September 25, 1962 , public meetings and processions were banned in Lagos . On that day, a particularly vicious regulation was published:

By which any person who, in any newspaper, periodical, book, circular or printed publication on, or means of any broadcasting system published any matter –

“referring to, or likely to be understood by members of public as relating directly or indirectly to any person in respect of whom a detention order or restriction order had been made and not revoked; or referring to these regulations, should, unless the matter had previously been submitted to and approved in writing to and approved in writing by or on behalf of the Administrator or the Minister of the Government of the Federation responsible for information, be guilty of an offence against the Emergency Power Regulations, 1962 and regulations 3 and 4 of those regulations which specify penalties and the consents required for prosecutions.”

On October 1, Prime Minister Balewa in a nation-wide broadcast told the nation that his government had been aware for some time of violent intentions of certain politicians to forcefully overthrow the legitimate government in Nigeria , and that they had been undergoing military training abroad. On October 26, the ban on public meetings and processions was extended to cover the whole of Western Nigeria . On November 2, 1962 , Chief Awolowo was formally charged with 26 others (including Anthony Enahoro, Sam Ikoku, Ayo Adebanjo, Lateef Jakande, Alfred Rewane, J.S. Tarka, Josiah Olawoyin, Dr. Oladipo Maja, Bisi Onabanjo, James Aluko, etc) with conspiring to overthrow the Federal Government by force. Just before his charge and thereafter he refused to testify before the Coker Commission, citing “no useful purpose to be served.” Trial began November 12. On November 27, 1962 , Chief Anthony Enahoro, who had broken restriction in September 1962 and fled to Britain , was arrested. [He was later returned to Nigeria in May 1963 to face trial.] On December 6, 1962 , an immigration restriction [Legal Practitioners Bill] was imposed on foreign lawyers, depriving Awolowo [who, in addition to Mr. Abraham A. Adesanya had British and Lebanese lawyers] and others their representation of choice. Awolowo’s application to have the restrictive bill quashed was dismissed December 12.

On December 31, 1962 , the Coker Commission enquiry report was published, indicting Awolowo and others, stating, among other things that:

Chief Awolowo has failed to adhere to the standard of conduct required of a Premier, and “there is not sufficient evidence in our view to say the same of Chief Akintola and we absolve him on all grounds.

On that same day ( December 31, 1962 ), the state of emergency declared in Western Region in May 1962 ended.

On January 1, 1963 , Chief Akintola returned to Ibadan to head the coalition government of his party – the United Peoples Party and the National Convention of Nigerian Citizens (NCNC), and announced his cabinet members.

On April 29, 1963 , Balewa announced that Nigeria would become a republic within the Commonwealth by October 1963. On May 13, 1963 , an all-party conference called by Prime Minister Tafewa Balewa approved a referendum for the creation of the Midwest Region in July 1963, which was eventually overwhelmingly approved (on July 13).

On May 16, 1963 , Tony Enahoro, arrested in September 1962, was returned to Nigeria , with his own trial beginning June 24, 1963 . Chief Awolowo and several others were convicted as follows: September 7 for Enahoro and on September 11, 1963 for Chief Awolowo (jailed 10 years) and others.

The case lost by Alhaji Adegbenro before the Nigerian Supreme Court in July 1962 finally wound its way to judgement delivery by the Privy Council in England .

PRIVY COUNCIL DECISION ON PREMIERSHIP DISPUTE

Leave was granted by the Federal Supreme Court to Alhaji D.S. Adegbenro to appeal to the Privy Council in London against the court's decision dismissing his two motions. The court also granted Alhaji Adegbenro final leave to appeal to the Privy Council against the decision of the court that the Oni of Ife , suspended Governor of the Region, acted unconstitutionally in dismissing Chief S.L. Akintola from office as Premier of the Region.

On May 27, 1963 the Judicial Committee of the Privy Council gave its judgement. The Council held that Chief Akintola's dismissal was valid thereby maintaining Alhaji Adegbenro's claim to the Premiership.

Giving judgement for the Privy, Lord Radcliff said that the Nigerian Federal Supreme Court had by a majority decision denied that the Governor could validly exercise the power to remove a Premier from office except in consequence of proceedings from the floor of the House of Assembly. This Lord Radcliff said had not answered the further question whether such a removal was possible on the basis of any material or information extraneous to the proceedings of the
House of Assembly.

Quoting relevant sections of the Western Nigerian Constitution, Lord Radcliff concluded that no limitation of the statutory power of the Governor in exercising his right to dismiss a Premier could be found in the words of the constitution which said in section 33(10) that "the Governor shall remove the Premier from office if it appears to him that the Premier no longer commands the support of the majority of the members of the House of Assembly." These words according to
the Lord indicated that the judgement of the support enjoyed by a Premier was left to the Governor's own assessment, and there was no limitation as to the material on which he was to base his judgement or the contacts to which he was to base his judgement, or the contact
to which he might resort for the purpose.

CONSTITUTIONAL AMENDMENT NULLIFYING PRIVY COUNCIL DECISION

On the same May 27, 1963 , the Western House of Assembly approved a Government-sponsored amendment to the Regional Constitution. It laid down that the Governor could remove a premier only in consequence of a majority decision of the Regional Legislature. This bill was back-dated with retrospective effect to October 2, 1960 and thus invalidate the appointment of Alhaji Adegbenro as Premier.

On May 30, 1963, the Federal Prime Minister, Sir Abubakar Tafawa Balewa issued the following statement:

"I have given the issues raised by the opinion of the Judicial Committee of the Privy Council most anxious thought; and I have reluctantly come to the conclusion that, of the alternative course of
action open to the Federal Government, the most expedient is for it to give support to the Constitution of Western Nigeria (Amendment) Law, 1963.

"After all the recent upheavals, Western Nigeria deserves a stable Government. It is in the national interest that the Federal Government should take all steps necessary to assure national unity and the continuance of the Federation of Nigeria . "

An emergency session of the Federal House of Representatives approved on June 3 a Government motion ratifying the amendment of the Western Nigerian Constitution by the Regional Parliament.

UNQUOTE

Western Region and Nigeria went downhill from there on, culminating in a military coup three years later (on Saturday, January 15, 1966) that plunged into a period of instability that we are yet to fully (?) recover from, and justifying the well-known idiom that many a times the road to hell is paved with good intentions.

Let us pray.

BIBLIOGRAPHY

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`From May 1962 to May 1963:`