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That conjecture on state of emergency

By Emeka U. Opara
22 November 2021   |   3:45 am
An earlier version of this article appeared in The Guardian newspaper of March 2, 2004 under the title “The State of Emergency Conjecture”. It was during the presidency of Olusegun Obasanjo.

Buahri

An earlier version of this article appeared in The Guardian newspaper of March 2, 2004 under the title “The State of Emergency Conjecture”. It was during the presidency of Olusegun Obasanjo. Chris Ngige was the Governor of Anambra State. He fell out with his political mentor, Chris Uba. Ngige was kidnapped at some point, and an attempt was made to put someone in his place.

When that attempt failed, a court order was obtained, via a dubious move to enforce a citizen’s fundamental rights, purportedly declaring that the governor was no more the governor, having resigned by reason of a letter of resignation written and signed before he became governor but dated thereafter.

While all these were going on, including the obvious assault on our democracy and what was clearly an undermining of the Constitution, the Federal Government, including the federally-controlled police, seemed to look away, uninterestedly. Arsonists, apparently linked to those who wanted the governor out, was thrown into the mix, with the burning of certain state institutions. However, as soon as the dubious court order was obtained, the police swiftly removed from the governor his security paraphernalia, rendering him ineffective. This was in apparent obedience to, and acquiescence of, the dubious court order.

It was obvious that there was an unwillingness on the side of the Federal Government to bring to justice those who had grossly violated the foundations of the Constitution and committed felonies that were highly treasonable. In the wake of all these, some hawks close to the Federal Government started pushing for a declaration of a state of emergency in Anambra State. Curiously, it appeared that the Federal Government was looking for an omen. Ordinary citizens of the state were expected to take to the streets and at least demonstrate. Somehow, they kept their peace and seemed to shun an obvious trap.

It was against that background that this article was written in 2004. Seventeen years later, in 2021, another scenario is playing out in the whole of the South East, with Anambra State as the pivot. This time, Muhammadu Buhari is the President of the republic while Willie Obiano is the governor of Anambra State. However, the problem is not confined to one state as in 2004. A few months ago the speculation was with respect to Imo State. That seems to have been put in abeyance, if temporarily. Apart from the upsurge of violence in the South East states, there has been perennial violence in the North East, much of the North West and most of the North Central states, and these have been more serious and more sustained than what is now playing out in the South East.

In what is arguably the most controversial judgement in Nigeria’s history, the Supreme Court removed the governor of Imo State and installed the candidate that came fourth, in a judgement delivered on January 14, 2020. Sometime thereafter, a separatist group, the Indigenous People of Biafra (IPOB), which the Buhari Government had hastily proscribed under controversial circumstances without proscribing herdsmen groups that have been terrorizing communities in the Middle Belt and Southern states, engaged in a confrontation with the police and other security agencies over land in Orlu, Imo State which the governor was rumored to have secretly given out to the Federal Government for its controversial RUGA.

The Buhari Government responded in a high-handed manner, up to bombing Orlu and other surrounding parts of the South East. On 4th April 2021, following upon political confrontation between aides of Governor Uzodinma and former Governor Rochas Okorocha, the State Police Headquarters and the Owerri Prisons were raided in a commando style by an amorphous group that, for want of a better name from then onwards, became known as Uknown Gun Men.

The Buhari Government responded with its signature – sending in more troops and other security agents into Imo State. In response, there was an escalation in the whole of the South East of the killing of security personnel and the burning of state assets like INEC offices, police stations and their vehicles. In a spiral, there was a brutal clampdown on civilians, especially youths, in Imo State and other South East States. Not surprisingly, hawks in the Buhari government started calling for a state of emergency to be declared in the South East. The body language of President Buhari does not show that he has not been giving more than a listening ear to such suggestions.

Just before the gubernatorial election in Anambra State, there was an upsurge of killings of civilians and security personnel, burning of private and public buildings and other forms of violence. Suddenly, Mr. Malami, the Attorney-General came out in the open to state that the President might declare a state of emergency in Anambra State. No, the authorities have not come up to tell us the real identity of the perpetrators of the violence, blamed on Unknown Gun Men.

Against these background issues, I hereunder examine the circumstances under which the Constitution of the Federal Republic of Nigeria 1999 (the constitution) would allow “proclamation” of a state of emergency, the condition it lays down for legitimizing it, and the acts and measures which the federal government may validly take in a period of validly declared state of emergency in any part of the federation. However, it is important to first of all understand the constitutional and historical antecedent of the present constitutional provision on state of emergency.

The constitutional and historical antecedent of state of emergency provision
Section 65(1) of the 1960 Constitution gave the federal parliament power to make laws for the federation or any part thereof on matters not included in the Exclusive Legislative list during any period of emergency. Under section 65(2) such laws would have effect only during the period of emergency. Section 65(3) specifies what a “period of emergency” was. There were only three, and that included an amorphous period when “there is in force a resolution passed by each House of Parliament declaring that a state of public emergency exists.”

It is important to note that it was under this amorphous provision which does not require a special resolution that the then Prime Minister Tafawa Balewa on May 29, 1962 brought a motion for a state of emergency to be declared in the Western Region up till and including the end of December 1962. It is also important to note that the Prime Minister in his speech on the floor of the House of Representatives noted and tried to debunk the accusation that his government was siding one of the sides to the conflict in the Western Region. See Eric Teniola, How Balewa Declared State of Emergency in The West in 1962 (2017); See also Excerpts by Urhobo Historical Society.

To be continued tomorrow
Opara is a Lagos-based attorney.