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That conjecture on state of emergency – Part 5

By Emeka U. Opara
26 November 2021   |   3:03 am
I am aware that during President Obasanjo’s tenure attempts or near attempts were made to remove some governors unconstitutionally. This essay has copiously captured what happened with Chris Ngige

Former Nigeria president Olusegun Obasanjo

Continued from yesterday

I am aware that during President Obasanjo’s tenure attempts or near attempts were made to remove some governors unconstitutionally. This essay has copiously captured what happened with Chris Ngige of Anambra State. The kite is flown on using the provision on the state of emergency to remove him did not and could not fly. The hawks flew the same kite with respect to Joshua Dariye of Plateau State. It did not also fly. It could not have under Section 305. However, Dariye was impeached by a contrived House of Assembly which lacked the requisite quorum. He was later to return to complete his term after the Court of Appeal nullified his impeachment, a decision upheld by the Supreme Court. The same kite was also flown with respect to Peter Ayodele Fayose of Ekiti State. When the hawks met the brickwall in section 305 they used the House of Assembly to impeach him under controversial circumstances. He was subsequently re-elected for a second term. In essence, Section 305 is yet to come under judicial interpretation.

Several centuries later, the dictum of the celebrated Late American jurist, Chief Justice John Marshal, continues to inform the interpretation of written constitutions. In Marbury v. Madison (1803) 1 Cranch 137, Marshal CJ had uttered the eternal dictum:

“To what extent are powers limited, and to what extent is that limitation committed to writing, if these limits can, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if these limits do not confine the persons upon whom they are imposed, and if acts prohibited and act allowed are of equal obligation. It is a proposition too plain to be controverted that the constitution prohibits legislative acts repugnant to it or that the legislature can amend the Constitution by an ordinary means.”

What is the purpose of a written constitution wherein pains have been taken to impose checks and balances against abuse of governmental powers if it exists only on paper? It is evident from the combined reading of sections 305 and 45 (2) that after passing a resolution legitimizing a proclamation of a state of emergency, the National Assembly cannot just sit back and allow the president or the executive arm free rein. At any rate, after the promulgation and the resolution, no jot of the fundamental human rights of the citizens can still be validly infringed upon. But by an act, the National Assembly can make any law that could have amounted to a temporary alteration (within the period of the emergency) of the fundamental rights of the citizens within the area of the emergency. Even so, this cannot be done without complying with the requirements of section 9 of the Constitution which requires a four-fifths majority before Chapter IV of the Constitution on fundamental rights can be amended. The advice in the denied memo advising the President to “suspend the Constitution and introduce martial law” can only be achieved by an insane disregard of the constitution, a virtual coup d’etat by a government against itself.

In a situation, therefore, where the army is called in to evacuate an area of a state because of a natural disaster, the National Assembly could make a law with the requisite majority allowing the army to cordon off the area and prevent people from moving into the area (contrary to their right to freedom of movement under section 41) or to move people out of their houses (contrary to their rights under sections 37, 41 and 44), to save them from such disaster. By use of civil defence and medical corps the executive, acting under such law could cordon off a part of a federation during an epidemic in such area so as to save the rest of the populace in other parts. So long as such measures are, in the language of section 45, reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency.

In its judgement in Aksoy v. Turkey: ECHR 18 December 1996, the European Court of Human Rights stated that even though the national authorities of a state party to the European Convention on Human Rights (in this case, Turkey) are given a wide margin of appreciation in deciding the extent of derogations necessary in a period of emergency, there must still have to be a “European Supervision” to ensure that such a state does not go beyond the “extent strictly required by the exigencies of the moment” (Para 68, citing its earlier judgement in Brannigan and McBride v. United Kingdom: ECHR 26 May 1993, Series A No. 258 B. pp. 49-50 para 43). Although the European system of human rights is not part of our judicial system, the reasoning in the above cases is of universal persuasion, considering that the African Charter on Human and Peoples’ Rights forms part of our laws and systems and that it is similar at least in some wording to the European and inter-American systems.

We have seen here that a declaration of a state of emergency can derive validity only from section 305 of the Constitution. We have also seen, from an analysis of that section and section 45(2), that no matter how liberal we are in interpreting the Constitution, the provisions cannot accommodate the powers being trumpeted on behalf of the President and the National Assembly in respect of promulgation of a period of emergency. Whatever be the plan of the protagonists of a promulgation/declaration of a state of emergency, the plan, as we hear it is rumored, cannot be achieved through the constitutional gateway. We can only conclude here that the mercenary exercises being carried out to ensure success for such a plan, as far as constitutionally possibly, amount only to a floated fiction.

This conclusion informs the title of this piece. A conjecture is an opinion or conclusion formed on the basis of incomplete information. In scientific terms, a conjecture is a guess about something which has not been subjected to rigorous scientific scrutiny. It is something less than a hunch. I submit that the protagonists of a state of emergency in Nigeria, especially in the South Eastern States, are engaged in a conjecture. That does not mean
that the land has been totally rid of quacks.


Opara is a Lagos-based attorney.