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That conjecture on state of emergency – Part 2

By Emeka U. Opara
23 November 2021   |   3:02 am
Many have argued that the downward plunge of Nigeria started at this point. It is clear that accusations of one-sidedness against successive federal governments have not subsided.

Presidency

Continued from yesterday

Many have argued that the downward plunge of Nigeria started at this point. It is clear that accusations of one-sidedness against successive federal governments have not subsided. See Sam Eyoboka, 60 YEARS ON: Nigeria at The Edge of The Precipice – Danjuma, Dongoyaro, Lekwot, Others’ Group, Vanguard Newspaper, September 27, 2020, citing Dr F. A. Ajayi, SAN, In Our Days, pp. 467-468.

It is against the background of the provision in the 1960 Constitution and the events that followed the first time that provision was relied upon that one ought to look at the 1999 Constitution. It is therefore for the reason of our historical development that the framers of the 1999 Constitution sought to introduce elaborate checks to forestall any abuse of the powers given to declare a state of emergency. It ought to be borne in mind that whereas under the First Republic the power was given to Parliament, in the present Fourth Republic the power is given to one person, the President, with checks to prevent abuse.

When a State of Emergency may be declared Under the 1999 Constitution
Section 305 of the 1999 Constitution makes elaborate provisions on the procedure for a declaration of a state of emergency. It states as follows:
305. (1) 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 the 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.

(4) The Governor of a State may, with the sanction of a resolution supported by a two-thirds majority of the House of Assembly, request the President to issue a Proclamation of a state of emergency in the State when there is in existence within the State any of the situations specified in subsection (3) (c), (d) and (e) of this section and such situation does not extend beyond the boundaries of the State.

(5) The President shall not issue a Proclamation of a state of emergency in any case to which the provisions of subsection (4) of this section apply unless the Governor of the State fails within a reasonable time to make a request to the President to issue such Proclamation.

(6) A Proclamation issued by the President under this section shall cease to have an effect –

(a) if it is revoked by the President by instrument published in the Official Gazette of the Government of the Federation;

(b) if it affects the Federation or any part thereof and within two days when the National Assembly is in session, or within ten days when the National Assembly is not in session, after its publication, there is no resolution supported by a two-thirds majority of all the members of each House of the National Assembly approving the Proclamation;

(c) after a period of six months has elapsed since it has been in force:
Provided that the National Assembly may, before the expiration of the period of six months aforesaid, extend the period for the Proclamation of the state of emergency to remain in force from time to time for a further period of six months by resolution passed in like manner; or

(d) at any time after the approval referred to in paragraph (b) or the extension referred to in paragraph (c) of this subsection, when each House of the National Assembly revokes the Proclamation by a simple majority of all the members of each House.

Subsections (3) and (4) of Section 305 stipulate the conditions one of which must exist before a state of emergency may be validly proclaimed. There are nine of such specific situations:
When a federation is at war;
When the federation is in imminent danger of invasion or involvement in a state of war;

When there is an actual breakdown of public order or public safety in the federation or any part thereof to such extent as to require extraordinary measures to restore peace and security;

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;

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; or

The Governor of the state requests the President to issue such a proclamation if the conditions under the (c), (d) or (e) part here exist and a two-thirds majority of that state’s House of Assembly has given the Governor the sanction to make such a request as provided under sub-section (4).

There is no risk of misinterpreting the powers of the President under paragraphs (a) and (b). However, paragraphs (c) to (e) present particularly doubtful room for those set on mischief. It is only after paragraph (e) and before (f) that the word “or” is used. Two alternative interpretations seem possible here. The first is that the President has the power to proclaim a state of emergency within the whole federation or any part or parts thereof under paragraphs (a) to (e) regardless of whether the governor makes a request under paragraph (f) where any of the conditions under paragraphs (c) to (e) exists. The second is that where the conditions under paragraphs (c) to (e) exist in one state only or per time in a few non-contiguous states, the President can make a proclamation only after the Governor in whose state the conditions exist makes a request pursuant to paragraph (f) and in accordance with the stipulations of sub-section (4). However, sub-section (5) appears to settle this issue. It provides that in any of the situations where sub-section (4) applies, the President “shall not” issue a proclamation unless the governor fails within a reasonable time to request him to do so.
To be continued tomorrow

Opara is a Lagos-based attorney.