Has Jonathan Really Declared a State of Emergency? By Jiti Ogunye

On Tuesday, May 14, 2013, the President of Nigeria, Goodluck Jonathan, in a televised national broadcast, “declared” a state of emergency in the North-Eastern States of Borno, Adamawa and Yobe “in order to restore public order, public safety and security in the affected States of the Federation.”

In the address that focused on “the recent spate of terrorist activities and protracted security challenges in some parts of the country, particularly in Borno, Yobe, Adamawa, Gombe, Bauchi, Kano, Plateau and most recently Bayelsa, Taraba, Benue and Nasarawa States”, the President condemned the “activities of insurgents and terrorists”, which are ” causing fear among our citizens and a near-breakdown of law and order in parts of the country, especially the North”

Stating that he had received detailed security briefings  which “indicate that what we are facing is not just militancy or criminality, but a rebellion and insurgency by terrorist groups which pose a very serious threat to national unity and territorial integrity”, the President pointed out that “already, some northern parts of Borno State have been taken over by groups whose allegiance is to different flags and ideologies.”

“These terrorists and insurgents”, the President continued “seem determined to establish control and authority over parts of our beloved nation and to progressively overwhelm the rest of the country; in many places, they have destroyed the Nigerian flag and other symbols of state authority and in their place, hoisted strange flags suggesting the exercise of alternative sovereignty; they have attacked government buildings and facilities,  murdered innocent citizens and state officials, set houses ablaze, and taken women and children as hostages.”  “These actions”, the President declared, “amount to a declaration of war and a deliberate attempt to undermine the authority of the Nigerian State and threaten her territorial integrity.” .

The President said that in spite of government’s ” restraint to allow for all efforts by both State Governors and well-meaning Nigerians to stop the repeated cases of mindless violence.., the insurgents and terrorists (implacably) seek to prevent government from fulfilling its constitutional obligations to the people, as they pursue their fanatical agenda of mayhem, mass murder, division and separatism.”

“While the efforts at persuasion and dialogue will continue”, the Government, the President assured, would do “whatever becomes necessary to provide the fullest possible security for the citizens of this country in any part of the country they choose to reside”, and “stand firm against those who threaten the sovereign integrity of the Nigerian state”, based on a strong will and  faith “in the indivisibility of Nigeria.”

Stating that “extraordinary measures to restore normalcy” had to be taken, the President, claiming to be exercising  the powers conferred on him by the provisions of Section 305 (1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, then “declared” a State of Emergency in Borno, Yobe and Adamawa States, and directed the  Chief of Defence Staff to “immediately deploy more troops to these States for more effective internal security operations.”

“The troops and other security agencies involved in these operations” according to the President, ” have orders to take all necessary action, within the ambit of their rules of engagement, to put an end to the impunity of insurgents and terrorists,  including the authority to arrest and detain suspects, the taking of possession and control of any building or structure used for terrorist purposes, the lock-down of any area of terrorist operation, the conduct of searches, and the apprehension of persons in illegal possession of weapons.”

While promising that the details of “this Emergency Proclamation” would be  transmitted to the National Assembly in accordance with the provisions of the Constitution, the President clarified that within the purview of the “Proclamation”, the Governors and other political office holders in the affected states would continue to discharge their constitutional responsibilities.

Let us state very clearly that contrary to popular but erroneous belief, the President has not declared and cannot single-handedly declare a state of emergency under the provisions of Section 305 of the Constitution. What the President did on Tuesday the 14th of May was to merely “broadcast” or announce a state of emergency.

Declaration of a state of emergency, proclamation of a state of emergency and announcement of a state of emergency are not one and the same thing. And this is no hairsplitting semantics. Unfortunately, the President, in his broadcast, interchangeably said he was “declaring” a state of emergency. The President has no such powers. Under Section 305 of the Constitution, the President can only issue ” a proclamation of a state of emergency”. Without any attempt to be  pedantic, we submit, that by the marginal note of Section 305, ” procedure for declaration of a state of emergency” is not a one step or stage process.

The proclamation of a state of emergency cannot be accomplished outside the official gazette of Government; and the issuance of a proclamation of a state of emergency in the Official Gazette, by the President, without more, does not constitute a declaration of a state of emergency, let alone a mere broadcast on television.

Such a proclamation in the Official Gazette is inchoate and incomplete unless and until the National Assembly passes a 2/3 majority resolution approving of the proclamation. Sadly, many commentators have been  hailing  the “declaration of a state of emergency” and even the deployed armed forces  have reportedly  “imposed a dusk to dawn curfew”  in certain areas covered by the “emergency declaration”. Thus, the Presidency has started exercising “emergency powers” without the approval of the National Assembly. This is unconstitutional. And a helpless and hapless broadcast on the part of a governor, urging civic cooperation with the deployed troops, before the requisite approval of the proclamation by the National Assembly, does not make it less so.

The President, as the Commander-in-Chief of the Armed Forces, of course, has the power, under Section 217 (2)  (b & c ) and Section 218 (1) of the Constitution “to determine the operational use of the armed forces” in “maintaining the territorial integrity” of Nigeria, and in “suppressing insurrection and acting in aid of civil authorities to restore order”. So, the President can order a “troops surge” without resorting to  Section 305 of the Constitution and ” declaring a state of emergency”

For the avoidance of any doubt, Section 305 (1-3) of the Constitution 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; (2) The President shall immediately after the publication, 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;

(3) The President shall have power 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 ( that is when the President receives a request of a governor of a state, supported by a 2/3 majority approval vote of a house of assembly of a state, for a proclamation of a state of emergency”.

Under  Section 305(6), the President may revoke (cancel) a proclamation of a state of emergency, by instrument published in the Official Gazette of the Government of the Federation.  When it affects the Federation or any part thereof,  following the publication of the proclamation of a state of emergency, if the National Assembly does not, within two days when it is in session, or within ten days when it not in session, pass a resolution supported by two-thirds majority of all the members of each House of the National Assembly, approving the proclamation, the proclamation shall cease to have effect. The life span of a proclamation of a state of emergency is six months.  However, before the expiration of the six months, the proclamation  can be extended by a two-thirds majority resolution of the two Houses of the National Assembly, from time to time, for a further period of six months.

Here let us argue, in passing, that the total number of months, envisaged by the Constitution, in which emergency rule can exist is twelve months.  This interpretation is what is yielded by the plain words contained in the phrase “for a further period of six months.” Whether this provision of the Constitution regarding the critical issue of duration of any state of emergency is adequate remains an interesting question, especially when it may be necessary to sustain a state of emergency, emanating from a war affecting the Federation or any part thereof, as long as the war subsists; and this may be more than twelve months. Also, before the  expiration of the six months, or after any extension thereof, the proclamation of a state of emergency can be  revoked by  a simple majority vote of all the members of each House of the National Assembly.

From the foregoing provisions of Section 305, it is clear, beyond equivocation, that the President can only issue a proclamation of a state of emergency  in an instrument published in the official gazette, which, depending on its approval by the National Assembly, after transmission of the official gazette thereto and consideration thereof, may transmute or ripen into a declaration of a state of emergency.

The President has no constitutional obligation to exhibit, grandstand, showcase  or advertise a purported declaration of state of emergency on national television, as he has done. 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”, without a broadcast. And if he is enamoured  of a broadcast, the broadcast ought to come after, and not before, he  has “by (an) instrument published in the Official Gazette of the Government of the Federation issue(d) a Proclamation of a state of emergency in the Federation or any part thereof”. The mode of issuing a proclamation of a state of emergency is “by (an) instrument  (that is) published in the Official Gazette of the Government of the Federation.” It is not by a text of an address or a television broadcast, which will later form the content of an instrument to be published in the official gazette, or the details of which will later be supplied in an official gazette, as the President erroneously suggested.

Upon issuing the Proclamation, as directed by the Constitution, the President must immediately transmit the Official Gazette to the National Assembly for a vote of approval. The President cannot refuse, neglect or fail to transmit the proclamation gazette, after its publication; Even if the President fears a legislative disapproval of his proclamation of a state of emergency and his consequential loss of face, the President must ( the word used in the Section is “shall”) transmit the proclamation gazette.

Now, three quick questions. Question one: can the President use a radio or television broadcast, or a newspaper or online publication to issue a proclamation, and can any of this media be legally accepted as a constitutionally recognized platform or means of proclamation? The short answer is no, and we say so, regardless of the phrase “the President may by instrument published in the Official Gazette of the Government of the Federation” used in Section 305 (1).

The word “may”, in the context of Section 305 (1), only gives the President a discretion, when a state of emergency exists or is warranted, to issue or not to issue a proclamation, and not a discretion on the choice of the medium wherein the proclamation is to be issued. The one and only medium or means of  proclaiming a state of emergency under the Constitution is an official gazette.

There can be no valid proclamation outside the Official Gazette. And if we may add, the word ” may” could  be construed or interpreted as “shall” and mandatory, permitting of no discretion, in certain grave national circumstances, when the situations or conditions of a state of emergency exists. In such situations, if the President does not act, he may be compelled to do so by an order of mandamus of a court of law, by a resolution of a national assembly or he may risk impeachment.

Question two: Do “announcement”, “declaration” and “proclamation” of a state of emergency have the same meaning under the Constitution, so as to make no difference whether the President issues a proclamation, or makes a declaration or an announcement? The answer is no. The literal or dictionary meanings of these three words may be the same, but their constitutional imports, in the context of Section 305, are dissimilar.

Question three: can the President refuse to properly issue a proclamation of a state of emergency by an instrument  and publication of same in the official gazette, after indulging in a national “state of emergency declaration” broadcast ( as President Jonathan has done), to avoid suffering a feared vote defeat of  the contemplated   proclamation of a state of emergency? Yes, he can, for the state of emergency broadcast is, really, not a proclamation known to the Constitution. In that case, the emergency broadcast will just be a piece of national entertainment or a gross violation of the provision of the Constitution, if, emergency powers have been assumed and wielded, pursuant to the broadcast.

Expectedly, the action of the President has elicited divergent views in  the media, amongst the political class, and in the civil society. The “declaration” of a state of emergency has been hailed and condemned.

The issues in discourse are whether  the declaration of a state of emergency was necessary or justifiable in the circumstances; whether it will permanently resolve the problem of insurgency in the North East, whether it will not only temporarily suppress it, or even complicate and worsen it; whether the enforcement of the emergency powers or orders, given by the President, would not be attended by gross human rights abuses and  violations; and whether the military operation would not alienate the local population and whether the usual anti-civilian excesses of the military would not radicalize indigenes and drive the moderate mass of the population into extremism; whether the declaration of emergency has not made the amnesty offer to the insurgents, and the Amnesty Committee, itself, untenable.

Other issues are whether the state of emergency declaration is complete and far reaching enough by the non-dissolution or suspension  of the operation of the legislative and executive arms of government in the three states; whether  such dissolution or suspension can be ordered by the President, permissible under a declaration of a state of emergency or is not a negation of constitutional democracy; whether the legislative and executive arms of government in the three states can, realistically, co-exist, without let or hindrance, with the state of emergency and the  martial order created under it; whether civil governance, established under the Constitution, can effectively discharge its authority in this state of emergency, and whether it will not be in limbo?

While we have the capacity to address the above issues one after the other, permit us to address only two: the issue of justification of a proclamation and declaration of state of emergency in the North East, and whether a  proclamation and declaration of state of emergency necessarily implies the temporary suspension, removal or demolition of democratic structures.

Without mincing words, the situation in the North East calls for a declaration of a state of emergency. But so also is the situation of the entire Country. Nigeria, as a territorial whole, and Nigerians as a people, not just the peoples and territory of the North-East States, are in an undeclared  state of permanent emergency. As envisaged by Section 305 (3) ( a & c ), Nigeria is at war, not with an external aggressor, but with internal aggressors.

Truth be told, there is a civil war going on, in the North-East where guerilla warriors are locked in mortal combat against conventional warriors. And there is actual breakdown of public order and public safety in the Federation, and in particular in the North East to such extent as to require extraordinary measures to restore peace and security. However, as envisaged by Section 305 (d)  of the Constitution, ” there is a clear and present danger of an actual breakdown of public order and public safety in the Federation ( and all parts thereof ) requiring extraordinary measures to avert such danger. In the North, in the Middle Belt, in the South East and South-South and in the West, the military, in an extra ordinary measure, is permanently engaged in internal security operations, whether against armed robbers, kidnappers, pipeline vandals and militants or marauding itinerant fulani herdsmen or avenging aborigines.

This situation will not be so, if country-wide, we are not in an undeclared state of emergency. Unfortunately, the Nigerian Government is fixated on  the territorial integrity and indivisibility of Nigeria. But, if we may ask, what is the value of territorial integrity and indivisibility of Nigeria to thousands of our country men and women who perish every month in road accidents, who are victims of violent crimes and civil strife that abounds in our country, who are traumatized by lack, killed by want and devastated by unemployment?, who are being destroyed by poverty, diseases and  corruption in our public and private lives? These millions of people are in an unmitigated state  of permanent emergency.

The second issue is on the question of whether a  proclamation and declaration of state of emergency necessarily implies the temporary suspension, removal or demolition of democratic structures? The answer is no. All democratic structures or institutions in the Country, including the Office of the President  owe their existence to the same document: the Constitution.

Thus, the President cannot, under the pretext of a proclamation of a state of emergency, suspend the Governor of a State or dissolve, disband or suspend the House of Assembly of a State. Section 11(4&5) of the Constitution does not support such a proposition. The only conceivable ground for dissolving a state house of assembly or removing a governor under a declaration of a state of emergency is when these authorities declare secession from Nigeria, are levying war against Nigeria or declare that they no longer bear allegiance to Nigeria. In other words, when the anti-Nigeria acts of these institutions are the reasons for the declaration of a state of emergency, arguably, they may be dissolved.

Unfortunately, much ignorance is being exhibited in discussing this issue. The Obasanjo’s perversion in Plateau and Ekiti States, during his presidency, when both the executive and legislatives arms of government were suspended from operation, and, in their stead, retired military officers were appointed as sole administrators, is being touted as an ideal declaration of a state of emergency. So also was the fraudulent declaration of a state of emergency in Western Region in 1962, by the NPC/NCNC Federal Government, obviously to save an ally, Chief S.L Akintola-the Premier- from falling from power, and to decimate the political opposition-the Action Group. The legal history of that perfidious intervention is captured in the Privy Council’s decision in the case of  Adegbenro v Akintola ( 1963) 3 WLR, 63

A case for the dissolution of houses of assembly and the removal of governors is being made and anchored on the alleged ineffectiveness of the state governments in tackling the security challenges in their states, as if a state government that is not in control of the military, police, civil defence corps, prisons, customs, immigrations, State Security Service, National Intelligence Agency and Directorate of Military Intelligence, can tackle any security challenges, beyond advertising vehicles and weapons procurement for policemen, in their respective states. The Police and the Armed Forces are unitary entities, under the Federal Government and the President, the Commander-in-Chief ( See Sections 214-218 of the Constitution). Thus, the responsibility to secure lives and property in the North Eastern States is not determined by the physical governance of the States by the Governors and the making of laws in those States by their Houses of Assembly, but by the control and monopoly of  the armed forces and security agencies in the Federation by the Federal ( central ) Government.

So, if any democratic structures or arms of government ought to be dissolved, disbanded or suspended for ineffectiveness in tackling the security situation in the North East, it is the Presidency, the Federal Executive Branch of Government and/or or the National Assembly.  In any case, nobody in his right senses will argue that if a state of emergency is declared in Nigeria as a whole, the Presidency and the National Assembly must be suspended from operation. The point is missed. A declaration of a state of emergency is meant, in part, to preserve the lives of democratic institutions, not to  temporarily terminate them.

When the Plateau State precedent was created in 2004,  many interest groups, lawyers, legal essayists and publicists, including the Patriots, Chief Gani Fawehinmi, Professors Ben Nwabueze and Itse Sagay had enlightened that the suspension of the “democratic structures” by the Federal Government was not in consonance with the provision of the Constitution, and that the Emergency Powers Act, 1961 (on which the Government claimed it based the suspension) was long repealed. Chief Akin Olujimi, the then Attorney General of the Federation and Minister of Justice, argued to the contrary, in spite of the fact that the Emergency Powers Act was long dead and buried when the Federal Government summoned its ghost to haunt the democratic process. Proof? The Emergency Powers Act, 1961 had been repealed by  Section 4 of the Revised Edition (Laws of the Federation of Nigeria) Decree No.21 of 1990 and Paragraph 1(a)(ii) of the Schedule made thereunder.

Unfortunately, when the Supreme Court of Nigeria had a golden opportunity to make a judicial pronouncement on the arbitrary powers of President Obasanjo, after the lapse of the period of the emergency declaration, the Court declined, and chose to strike out the Suit challenging the exercise of the emergency powers of President Obasanjo. The Supreme Court held, erroneously in our view, that the Suit was not authorized by the Plaintiffs, since the action, which was filed in the names of “Plateau State of Nigeria and House of Assembly of Plateau State” was not filed on the instructions of Major-General Chris Ali-the Sole Administrator, who had taken over the positions of the suspended Governor Dariye and the House of Assembly. How the Supreme Court could have expected the usurper to initiate an action against himself and his appointing authority, in the name of the democratic institutions whose powers he had usurped, is baffling. ( See the case of Plateau State v A-G.; Federation, 2006,3NWLR,Pt. 967, pg 346 at 393-395)

In a constitutional democracy, the purpose of exercise of power is as important as the method of exercise of power. This is why we insist that  a proclamation of a state of emergency should be made in the constitutionally prescribed format. This is substance, not sheer pedantry.

Mr. Jiti Ogunye, a constitutional attorney and author,  is Principal Counsel, Jiti Ogunye Chambers, Lagos Nigeria.


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