The Rape
of Constitutionality in Plateau
By
Ben Nwabueze
culled from GUARDIAN, May 20, 2004
THE suspension of the Governor and House of
Assembly of Plateau State and their replacement temporarily by an
Administrator by President Olusegun Obasanjo are the greatest and most
brazen illegality committed by any government in Nigeria, colonial, military
or civilian.
Emergency powers comprise two distinct powers, viz (i) power to declare a
state of emergency; and (ii) power to make laws and to execute them with
respect to matters within exclusive state competence in normal time, and to
overstep, with some exceptions, the limitations on power arising from the
constitutional guarantee of fundamental rights in chapter IV. Section 305 of
the 1999 Constitution, relied on by President Obasanjo for his action in
Plateau State, grants only the first power, but not the second; it only
empowers the President to declare a state of emergency in situations there
specified. It is not intended for present purposes to go into the question
whether or not the state of emergency in Plateau State was validly declared
under section 305.
A state of emergency validly declared under section 305 does not by
itself, bring into play the second power. It is a fundamental principle of
the Rule of Law that executive acts must be authorised by law, at any rate,
insofar as they affect the rights and interests of an individual, and that
the Executive is not the one to confer the necessary legal authorisation on
itself. The principle is well established by many authorities. As far back
as 1921 in the celebrated case, Eshugbayi Eleko v. Government of Nigeria,
the Privy Council applied it to invalidate the deportation of the then Oba
of Lagos by the colonial Governor of Nigeria without authorisation by law,
which as the sole legislature for the country at the time, he could have
conferred on himself by simply issuing an Ordinance, but which he failed to
do, relying instead on what he called his inherent authority as the
Executive. In a judgement that has become a great constitutional landmark,
the Privy Council, speaking through Lord Atkin, said that the Executive "can
only act in pursuance of the powers given to him by law."
The section in the 1960 and 1963 Constitutions (section 65 and 70
respectively) authorising the declaration of a state of emergency also
empowered Parliament 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" (section 65(1) 1960; section 60(1) 1963;
emphasis supplied.)
Pursuant to the power conferred by this provision, Parliament enacted the
Emergency Powers Act 1961 authorising the Governor General-in-Council to
make "such regulations as appear to him to be necessary or expedient for the
purpose of maintaining or securing peace, order and good government in
Nigeria, or any part thereof during any period of emergency." Altogether 12
regulations were made by the Governor General-in-Council under the Act. Of
these the most far-reaching was the Emergency Powers (General) Regulations,
1962, which empowered the Prime Minister to appoint an Administrator for
Western Nigeria (the emergency area.) The Administrator was authorised by
the Regulations to administer the government of the Region, with power to
legislate by means of orders for the peace, order and good government of the
Region, and with full executive powers. He then suspended the Regional
Governor, Premier, Ministers, and House of Assembly.
The Emergency Powers Act 1961 and the Emergency Powers (General)
Regulations 1962 clearly went beyond what was contemplated by the enabling
provision in Section 65(1) of the 1960 Constitution; they were a perversion
of power, but they at least provided some measure of legal authorisation and
basis for the appointment of the Administrator by the Prime Minister, and
the suspension of the Regional Governor, Premier, Ministers and House of
Assembly by the Administrator. The Act and the Regulations made under it
lapsed by effluxion of time under Section 65(2) of the 1960 Constitution
(section 70(2), 1963) that "any provision of law enacted in pursuance of
this section shall have effect only during a period of emergency," so that
they are not in force today as existing laws under Section 315 of the 1999
Constitution. They are not therefore reproduced in the laws of Nigeria 1990.
Even supposing them to be existing law, they will be inconsistent with
Section 11(4) and (5) of the 1999 Constitution, quoted below.
With the experience of the perversions of 1962 in mind, Section 305 of
the 1999 Constitution (reproducing Section 265, 1979 Constitution) gives the
Federal Government no emergency powers, legislative or executive,
exercisable during a state of emergency declared under its provisions. It
(i.e. Section 305) omits completely the power in Section 65(1) of the 1960
and Section 70(1) of the 1963 Constitution. The only provisions relevant
upon the points are those in Section 11(3), (4) and (5) of the 1999
Constitution (same section number in the 1979 Constitution) which, again
significantly, make no reference at all to an emergency declared in terms of
section 305 (section 265, 1979 Constitution).
These provisions need to be reproduced in their precise wording in order
to underline their underlying aim of avoiding the evil of perversion made
possible by the 1960 and 1963 Constitution. Section 11:
(3) During any period when the Federation is at war, the National
Assembly may make such laws for the peace, order and good government of the
Federation or any part thereof with respect to matters not included in the
Exclusive Legislative List as may appear to it to be necessary or expedient
for the defence of the Federation"
"(4) At any time when any House of Assembly of a State is unable to
perform its functions by reason of the situation prevailing in that state,
the National Assembly may make such laws for the peace, order and good
government of that state with respect to matters on which a House of
Assembly may be necessary or expedient until such time as the House of
Assembly is able to resume its functions, and any such laws enacted by the
National Assembly pursuant to this section shall have effect as if they were
laws enacted by the House of Assembly of the State.
Provided that nothing in this section shall be construed as conferring on
the National Assembly power to remove the Governor or the Deputy Governor of
the State from office."
"(5) For the purposes of subsection (4) of this section, a House of
Assembly shall not be deemed to be unable to perform its functions so long
as the House of Assembly can hold a meeting and transact business."
(emphasis supplied)
The severest of the restrictions on the powers of the Federal Government
under these provisions is that where a situation of an abnormal
extraordinary nature is confined to the territory of one State and does not
extend beyond its boundaries, then, even although a state of emergency has
been declared in the state in terms of section 305, the National Assembly is
not to assume power to make laws on matters within exclusive state
competence unless the State House of Assembly is "unable to perform its
functions by reason of the situation prevailing in that state" (section
11(4) - i.e. the situation prevailing in the state independently of, not one
brought about by, a declaration of an emergency. Further, "a House of
Assembly shall not be deemed to be unable to perform its function so long as
the House of Assembly can hold a meeting and transact business" (section
11(5). Again, what is envisaged is inability to perform its functions
arising from the situation prevailing in the State independently of, but not
one brought about by, a declaration of an emergency.
Finally, the removal of a State Governor from office by reason solely of
an emergency situation prevailing in the State, whether or not an emergency
is formally declared under section 305, is completely and unequivocally
procluded by the proviso in section 11(4), which declares that "nothing in
this section shall be construed as conferring on the National Assembly power
to remove the Governor or the Deputy Governor of the State from office." The
Governor remains in office during such period with his executive powers
undiminished, since by section 11(4) any "laws enacted by the National
Assembly pursuant to this section shall have effect as if they were laws
enacted by the House of Assembly of the State." He is the rightful authority
to execute such laws by virtue of the provision in section 5(2) that the
executive powers vested in him shall extend to "the execution and
maintenance of the Constitution (and) all laws made by the House of
Assembly." And if the National Assembly cannot, in the exercise of its power
to make law under section 11(4), remove a State Governor, it cannot by law
authorise the President to do so. The President has no inherent power to
remove or suspend a Governor, anyway.
It follows that a State Governor elected into office under the 1999
Constitution cannot be removed from office by reason solely of an emergency
validly declared under section 305 of that Constitution; in order words,
there is nothing in the provisions of the 1999 Constitution relating to an
emergency that can cause or be used to make a state Governor to "cease to
hold office" within the meaning of section 180 of that Constitution.
All the military governments that have ruled Nigeria observed the Rule of
Law at least to the extent of enacting laws (Decrees or Edicts) as a basis
for their executive actions, especially executive actions affecting the
rights or interests of individuals. There was seldom, if ever, an executive
action of the military government not backed by law, a Decree or Edict, made
normally prospectively, but sometimes retrospectively.
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.`
Professor Nwabueze (SAN), a constitutional lawyer, is a member of The
Patriots`
