That conjecture on state of emergency – Part 3
Since the governor can validly make such a request only with the sanction of two-thirds of the state House of Assembly, can the governor be said to have failed to make a request within a reasonable time if the state assembly has not even made the necessary resolution? In other words, the determination as to whether the facts in a state or a part of it fit into the situation contemplated by paragraphs (c) to (e) of subsection (3) (i.e., whether the facts justify the setting in motion of the first step in the procedure towards a declaration of a state of emergency) can only be made by that state’s House of Assembly.
The National Assembly cannot even presume to make such determination so long as there is a functioning House of Assembly in the state concerned.
There has been for some time a presupposition, rife in the air, that in a period of a state of emergency in a state of the federation, the National Assembly takes over the law-making powers of the state House of Assembly. This is an unfortunate falsity. The constitution makes no contemplation on the cessation of federalism under any condition whatsoever, except by the strenuous amendment of the constitution itself under Section 9 of the structure of the federation to give the federal authorities executive and legislative powers in a region (state) on those matters left to the states. This was so made to avert a resort to political self-interest as the actors of the First Republic have been consistently accused of. To imply such power and construe it so without an amendment of the Constitution would amount to writing in a death sentence to the Constitution itself.
It would also grossly be contrary to section 1(2) of the Constitution which stipulates that “the Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of the constitution” (emphasis mine)
There is a limit to contemplation. If the constitution should contemplate the disappearance of the governmental structures of a part of Nigeria, the constitution must then necessarily contemplate such disappearance on the federal level. Who would legislate for the whole country? Should the President and the National Assembly respectively take over the executive and legislative functions of a state under the present constitution, it would fully amount to a coup d’etat. The whole Nigeria, not only the state involved, would from that moment no longer be operating a constitutional government (at any rate not the 1999 Constitution), as the constitution would have been overthrown. This would be consonant with the classic definition of coup d’etat. (cf Lakanmi’s case (1971) 1 U.I.L.R. 201; Hans Kelsen’s Pure Theory of Law)
Assuming for the sake of argument, that there is no functioning House of Assembly in a state, and the National Assembly, by a most insanely flexible stretch of the doctrine of necessity assumes the function, the National Assembly would by a two-thirds majority resolution still have to request the governor to make the request of the President. The National Assembly, in acting for such a state in such a situation, cannot bypass the governor and empower the President, because they would be acting not as legislators of the Federal Government but in the capacity of the state House of Assembly under sub-section (4).
In summation on this point, nowhere does the constitution contemplate that the steps and conditions stipulated by it could be circumvented. Anything otherwise would be ultra vires. It appears from a clear reading of subsections (3)(f), (4) and (5) of section 305 that before a governor can be removed from participating in the build up to a proclamation of a state of emergency within a section of a country entirely within his state, the following situations must exist conjunctively:
There must be no sitting governor (substantial or acting), and The House of Assembly in the state must be de facto no longer in existence (i.e., totally unable to sit and perform their legislative functions).
It is still arguable that where there is no governor of a state and no House of Assembly (a possibility of extreme remoteness), in acting for the state the first function of the National Assembly would be to elect an acting governor in accordance with the order of succession, then pass a resolution mandating the acting governor to request the President to proclaim a state of emergency if the conditions exist.
How it may be declared
If the conditions stipulated by subsections (3), (4) and (5) (as the case may be) are satisfied, the first step in the actual proclamation would be taken by the President, not the National Assembly. The President will issue a proclamation. A proclamation to this effect is issued only if it has been published in the official gazette of the federation, not by a political announcement on the television or on the pages of a tabloid by a government spokesperson.
This is the provision of section 305(1). However, the proclamation in the gazette does not alone mean that a state of emergency has become operative. It has to await an approval by each house of the National Assembly in a resolution under sub-section (2). However, a consolidated reading of sub-section (6) therewith suggests that when it is proclaimed, the President may take initial steps to ready certain things towards putting it into effect, subject to approvals, for example putting the police, the army or any civil defence force into logistical preparations. If the National Assembly is in session, there must be a vote on a resolution for approval within two days of presidential proclamation; if not in session, this must be done within ten days, contemplating an emergency session in that instance.
It is therefore abundantly clear that the National Assembly cannot even contemplate a resolution under section 305 when there has been no proclamation by the President published in the official gazette.
To be continued tomorrow
Opara is a Lagos-based attorney.