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That conjecture on state of emergency – Part 4

By Emeka U. Opara
25 November 2021   |   3:23 am
It cannot be denied that the National Assembly has a general power of passing resolutions. It may pass resolutions noting the situation in the federation or any part of it and suggest a solution to it, although it must be careful in its language...

It cannot be denied that the National Assembly has a general power of passing resolutions. It may pass resolutions noting the situation in the federation or any part of it and suggest a solution to it, although it must be careful in its language, otherwise it may be unwisely dabbling into a matter constitutionally not ripe for it and subjecting itself to political accusations. For purposes of a resolution under section 305, however, the National Assembly can only pass a resolution approving or refusing to approve a proclamation already made by the President, and the President must have acted in accordance with the constitution, otherwise any approval by the National Assembly cannot legitimize an ultra vires action, neither could it even disapprove an action that does not exist de jure.

In the final analysis, the President cannot hide behind the National Assembly and cannot use it to achieve an unconstitutional end.

Measures that may be taken during a period of emergency
Even some of the protagonists of the emergency declaration viewpoint would be surprised at the ignorant suppositions of those who have taken the drumbeat from them and partly out of fear and partly from uninformed support have beaten to a crescendo what should have been ignored as an attention-getting attempt. There is nothing sacrosanct about a state of emergency, and the constitution does not even begin to elevate it to any level of sacrosanctity. A period of emergency is a constitutional aberration anytime and the constitution regards it as such.

Owing to its possible political abuse, the constitution provides adequate checks, to the end that the need that informs the giving of such powers is not replaced with political expediency.

The most important checks in the constitution are found in the procedure stipulated in section 305 of the constitution itself. The wisdom of the drafters of the constitution in this section is that the president cannot really pass the buck of the decision. It is also because the country is (supposed to be) a federal democracy that in a situation where the facts necessitating a declaration are confined within one state per area, that the power to initiate the procedure is given not to the Federal government but to the nearest representatives of the people of the state within the state government – the state House of Assembly. From there it moves up to the state Governor. It is also because the constitution contemplates that the paraphernalia for solving the problem must have gone beyond the capabilities of the state and that if left to the state might spread beyond it and even engulf the whole federation, that the build-up to the declaration ultimately involves the federal executive, subject to sanction through resolution by the federal legislature, otherwise the tenets of federalism would not have allowed the involvement of the federal government at all.

During a period of emergency, the police powers of the state are heightened (“state” is used here in the jurisprudential sense of the whole federation). What would ordinarily be ultra vires under normal conditions would be intra vires the constitution, subject to certain conditions. It would mostly be in a period of properly declared emergency that certain restrictions and derogations would be valid under the constitution.

Section 45(2) of the Constitution provides:
“An act of the National Assembly shall not be invalidated by reason only that it provides the taking, during periods of emergency, of measures that derogate from the provisions of section 33 or 35 of this constitution; but no such measures shall be taken in pursuance of any such act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency.”

It is beyond altercation, either of grammar or on legislative intendment, that this provision on derogation lays down clear conditions. Unless all the conditions contained therein are satisfied, any action by the government cannot pass constitutional muster. Consequently, it can be gathered from section 45(2) that,
Although a period of emergency might have been properly promulgated by the president under the relevant section of the constitution, there can be no derogation based on such promulgation until the National Assembly enacts an act stipulating measures that could be taken which, even though ordinarily derogatory and contrary to the constitution, would still be valid because they are taken during a period of emergency;
Even if the National Assembly enacts such an act, a derogatory measure taken based thereon would still be beneath the acceptable constitutional threshold except such a measure is “reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency.”
A proviso to this sub-section emphasizes that the National Assembly cannot by law authorize derogation on the right to life except in respect of death resulting from acts of war, and that under no condition can an ex post factor law be validated. A period of emergency cannot therefore be a licence for extra-judicial killings and unconstitutional arrests, abductions and disappearances as we have witnessed recently in Imo State and other South Eastern states.

Nowhere in the Constitution is it provided that the President is given power, under the constitution, to replace the Governor or the executive government of a State and replace the governor with a military administrator. Nowhere does the Constitution permit the president to usurp the powers of the Governor either directly or by proxy. Nowhere is it provided that the National Assembly is given the power to take over the legislative function of a state House of Assembly or to sack a functioning and functional legislative body of a state. The arguments so far muting such possibilities have been and can only be outside the Constitution. That a president could simply by proclamation take up a power beyond the widest ambit of constitutional government is a proposition beyond the outermost edges of reason.

That such power can be implied when there is nothing remotely suggesting it in the constitution is, with due respect, symptomatic of constitutional lunacy.
To be continued tomorrow

Opara is a Lagos-based attorney.