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Insecurity, the constitution and renewed calls for state of emergency

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Masari. Photo/TWITTER/GOVERNORMASARI

The upsurge in violent crimes such as banditry, kidnapping, insurgency and terrorism has renewed calls for a state of emergency. BERTRAM NWANNEKANMA examines the validity of such calls vis-à-vis constitutional provisions.

The National Assembly recently called on President Muhammadu Buhari to declare a state of emergency on insecurity across the country. The call seems to be in sync with the view of many Nigerians, who have expressed concern about the worsening state of insecurity. The suffocating tales of kidnappings and other violent crimes bedeviling the country and failure by security agencies to tackle the situation lend credence to the calls.

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Aware that section 14 (2) (b) of the 1999 Constitution, stipulates that the welfare and security of citizens shall be the primary responsibility of government; thus government at all levels owes the people the duty to provide adequate security, the Senate also recently passed a resolution calling on President Buhari to declare a state of emergency on insecurity. They insisted that the government must suspend normal constitutional procedures to regain control of the situation. The resolution was reached after the kidnap of students at Government Science College, Kagara in Niger State.
  
The upper chamber also urged the President to consider and implement the recommendations of the Senate ad hoc committee on Nigeria’s Security Challenges dated March 17, 2020, and Senate resolutions as a holistic response to the mounting security challenges across the country.
  
The Senate resolutions followed the consideration of a motion titled, “Abduction of Students and Teachers of Government Science School Kagara: Need for Urgent Action” moved by Senator Mohammed Sani Musa (APC, Niger East) at plenary. Senator Musa, speaking under Order 42 and 52 of the Senate Standing Rules, noted with sadness and great concern, the recent terrorist attack and abduction of students at Kagara School by gunmen.
 
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Similarly, the House of Representatives asked President Buhari to declare a ‘state of emergency on security, following similar worsening security situation across Nigeria and the recent taking over of 42 communities in Niger State by Boko Haram. The House’s position followed a revelation by the Niger State Governor, Abubakar Bello, that Boko Haram terrorists had taken control of territories in Kaure and Shiroro local governments of the state.
In the ensuing debate, many Nigerians have thrown their weight behind the Senate’s call on President Buhari to declare a state of emergency. However, others believe that declaring a state of emergency would not solve the problems of insecurity going by the history of emergency rules in the country.
   
For instance, former Speaker of the House of Representatives and incumbent governor of Kastina State, Aminu Bello Masari, had questioned the effectiveness of the declaration by the lawmakers.
  
The governor, whose state has been under constant attacks by bandits said; “after the state of emergency, what else?” According to him, a state of emergency cannot solve the problem.
 
“I think we better be serious about this issue of security because if you say we declare a state of emergency, then what do you do next? You will continue to have the same people; the same security agencies, capacities and resources to deploy.
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“We have a problem whereby, every person has a role to play, and we better play it. Politics should be over. The security situation in the country is beyond partisan politics and it is a national concern for all of us. State of emergency cannot solve the problem,” he maintained.
    
It is on record that Nigeria witnessed its first state of emergency on October 1, 1962, when the then Prime Minister, Tafawa Balewa declared a state of emergency in the Western Region.
 
Balewa in a nationwide broadcast told the nation that his government had been aware for some time of violent intentions of certain politicians to forcefully overthrow his legitimate government and that they had been undergoing military training abroad.
  
He subsequently banned public meetings and processions on October 26. This was extended to cover the whole of Western Nigeria. On November 2, 1962, Chief Obafemi 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.
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The other time state of emergency was declared was on May 18, 2004, and September 2006 when President Olusegun Obasanjo declared a state of emergency on Plateau and Ekiti States.
  
Citing Section 305 of the 1999 Constitution, Obasanjo imposed a state of emergency on both states, suspending the elected Governors, Ayo Fayose and Joshua Dariye as well as the Houses of Assembly in the process.
  
He accused Governor Dariye of failing to act to end the cycle of bloodletting between Muslim and Christian communities in the state, which claimed over 2,000 lives since September 2001.
   
President Goodluck Jonathan also declared a state of emergency in some local governments in Borno and Plateau States in 2011 before the full declaration in Borno, Adamawa, and the Yobe States. Although Jonathan did not sack the governors and lawmakers, there were increased security activities in those states.
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A Lagos based lawyer, Uchechi Igwe said declaring a state of emergency might be essential to stem the tide of insecurity.
    
According to him, there is no doubt that the spate of insecurity calls for urgent action to be taken to save the nation from total collapse.
   
“At this point in time, the declaration of a state of emergency in the whole nation is desirable.
   
“Section 305(3) (c) & (d) of the 1999 Constitution empowers the President to issue a proclamation of a state of emergency when there is actual breakdown of public order and public safety in the federation or any part thereof to the extent as to require extraordinary measures to restore peace and security or when 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.
 
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“We do not need a soothsayer to tell us that in Nigeria today, there exists, a clear and present danger of an actual breakdown of public order and public safety. There is no part of Nigeria presently that is secure. I wish that the President would be courageous enough to invoke this provision of the Constitution to salvage this nation before it is totally consumed,” he said.
    
Also, former 2nd vice president of Nigerian Bar Association, (NBA), Monday Ubani, said a state of emergency might be necessary to draw complete attention to the issue of insecurity and not to suspend elective government.
   
According to him, the reason for the state of emergency is that adequate attention is not being paid by the government in power concerning the state of insecurity and probably holding a stakeholders’ meeting to address it. 
   
“I think what they meant was to draw attention and probably hold a meeting of stakeholders on the issue and proffer solutions to the issue at hand. 
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“President Buhari wants to enjoy the luxury of the office, he doesn’t want to endure the pain. There was a time when the National Assembly invited the President to come and discuss the reasons insecurity is worsening, but he didn’t come.
   
“When you declare a state of emergency on a sector, it is different from declaring a state of emergency in a state or region. My understanding is that it is different from declaring a state of emergency either in a state or in a country.

“What I understood by the call for a state of emergency is to convoke stakeholders’ meeting to really address the issue of insecurity and probably come out with a resolution, which the government should take action on it.

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“People are merely frustrated as there is a high level of insensitivity and incompetence. People have to voice out so that government would buckle up to tackle those lingering issues, and regarding such people as committing a treasonable felony is not the right thing for the government to do because they may be heating up the polity,” he added.
   
Constitutional lawyer and senior advocate of Nigeria (SAN), Chief Mike Ahamba, said although declaring a state of emergency is a possibility, it would not address the insecurity challenges.
He said: “If it is seen that the authority cannot control the situation, then a state of emergency can be declared in any part of the country or the whole country by the President.
  
“But if you ask me, I will say, there is no need for it because there is no part of Nigeria, where there are no security challenges and to zero it to any part of Nigeria technically is wrong. If it is not going to be national, then, there should be none.”
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The learned silk also disapproved the piecemeal declaration of a state of emergency as being projected as unconstitutional.
  
According to him, there is nowhere in the constitution where you can declare a state of emergency on a sub-sector as being projected.
  
Elucidating, Ahamba said when a state of emergency is declared in a place, the elected authority is suspended during that period.
   
“If you are talking of a state of emergency on security, it means that the place has broken down. So this selective declaration of a state of emergency is not the best. Have we exhausted what we have right now? Have we exhausted the position of the Constitution given to the army and police? Are we even applying them? 
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“So, this is the problem. To declare a state of emergency in some parts of Nigeria should be for another purpose. However, nobody can stop them from making a selective declaration of a state of emergency, if they are bent on doing so. The way the National Assembly is acting shows they do not understand the situation of the country right now,” he said.
   
In his view, Lagos based constitutional lawyer, James Ezike said, declaring a state of emergency amounts to a waste of time because the problem cannot be solved by a state of emergency.
   
Ezike hinged his position on the fact that the current security problem in certain sections of the country is not tribally induced but a religious one.
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“So why are they talking about wars, about Biafra and others? There is nothing anybody can do with a state of emergency?” he queried.
  
Ezike said the last democracy Nigeria ever had was under Shagari and since then, the military has been transmuting into power to avoid the inevitable because they want to continue until they all die.
  
He stressed that a state of emergency is a declaration of incompetence, because it is the easiest way to avoid responsibility, adding that it has never worked anywhere in the world.
  
“It is meant to be a short term solution to a problem. They did it in Plateau but the line drawn is still there. Let them also look at the result of the 2011 presidential election. They should know that where Nigeria is on the map drawn by Orkar, is what was reflected in the result. 
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“Jonathan won all the states that Orkar said should remain in Nigeria except one and inside that mystery, there was an enigma, which was in Osun State, where Ribadu won. The present government should take a cue from that analogy to solve the problem of insecurity,” he added.  
   
Illustrating further, Ezike said that when Obama was in power, he visited several African countries, including Ghana but he didn’t come to Nigeria even when the country was supposed to be under a democracy.
   
According to him, before he left Ghana, he repeated what he said earlier that jailing top government officials would solve the problem of corruption in Africa and by extension Nigeria, not by pursuing hungry people for committing minor offences.

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