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 state of emergency relevant
to the Ekiti case is contained in Section 305(3)(c) of the Constitution, namely,
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 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 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 a mere
academic exercise. Given the controversy that surrounded the impeachment
process, the polity would have to confront the issue 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 sub section into 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
nothing and expect it to stand; it will simply fall to the ground. Given the
view that I hold that there was no condition of 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 nothing on nothing 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 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 for ever 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.
