But for the seemingly vengeful manner in which President Matthew Okikiolakan Aremu Olusegun Obasanjo, the Balogun Owu and Ekerin Egba, went about the declaration of emergency rule in Plateau State, particularly with the suspension of an elected state governor in the person of Joshua Dariye, and the concomitant suspension of the state House of Assembly, decisions which have since received the scorn which they deserve, the Sole Administrator, General Chris Ali (rtd.), may have stemmed the tide of mass murder, looting and wanton destruction of properties, but it has become clear that what President Obasanjo needed to have done when he declared a state of emergency in the state was to be a bit firmer with the protection of lives and property since the heads of the nation’s security agencies report to him. This report examines the pros and cons of the declaration at mid-term.
Your style is not my style During the Second Republic, Alhaji Usman Aliyu Shehu Shagari, could have done it but common sense prevailed. Richard Osuolale Abimbola Akinjide, SAN, Second Republic Attorney-General and Minister of Justice, and now Board of Trustee member of the ruling Peoples Democratic Party, PDP, could have convinced the president otherwise, but he chose to apply the wisdom of the law in analysing the issues at stake to the cabinet.
Akinjide, who can be considered as a man who has seen and been part of it all, going by his participation in the politics of the First Republic and where it eventually led the nation, counseled against it. And so, the Second Republic was spared the odium of a declaration of a state of emergency - but that, mind you, did not stop that administration from quelling the infamous Maitatsine Riots. All these during Shagari’s Second Republic.
Fast forward to May, 2004 and Olusegun Obasanjo, as President and Commander-in-Chief showed no mercy.
But Obasanjo could have saved himself and Nigeria the embarrassment.
The pictures on Cable News Network, CNN, on Wednesday, May 26, 2004, some nine clear days after the declaration of emergency rule in Plateau State, was capable of scaring any reasonable investor out of and away from Nigeria.
The bodies, the torched houses and vehicles, the victims, trekking tens of kilometres from their homes, were all that was needed to tell the world that Nigeria is still not a safe place to venture into.
And why was the world availed this scene? Because emergency rule was declared in Plateau State by Mr. President. Although in his appearance on the same CNN following Sunday, he justified his declaration, any discerning viewer would not need any other further clarification before making up his or her mind on the need not to invest in Nigeria. Why? Because emergency rule was declared in Plateau State.
Unfortunately, the crisis seems to have been more upbeat since the declaration. And although the declaration was challenged in court, the verdict may not change anything whichever way it goes.
However, had Mr. President, with due respects to his coterie of advisers, chosen to tarry awhile, things may not have become this embarrassing.
Granted, as in all affairs of men, any law can be interpreted to sooth the instincts, temperament and mentality of the interpreter, for according to an anonymous quotation, “any fool can make a rule and every fool will mind it”. Unfortunately, the declaration of emergency rule in Plateau State is something that had to be carried through because the president declared it so.
And although late sage, Chief Obafemi Awolowo had once said that law is 90% common sense and 10% technicality, it should still be granted that the commonness of common sense is the fact that it is uncommon. And, also, granted that politicians are wont to play politics with otherwise very crucial and serious issues, the crisis in Plateau State went beyond mere politics.
President Shagari and the Maitatsine Riots
Chief Akinjide explained that the way the Shagari government handled the situation was quite unique and result-oriented. He was able to relive the Shagari administration’s handling of the Maitatsine riots and how that administration refused to declare a state of emergency, even when “The Maitatsine crisis in Kano was far more serious than what we have today in Plateau State for which the emergency powers have been invoked.
“You are right, I was both the Attorney General and Minister of Justice as well as being a member of the security council.
“What we did then was that we had to call in the army, but we completely ruled out any suspension of the constitution in that state or suspension of the governor or legislature. Mind you, that state was not ruled by the National Party of Nigeria, NPN, our own party, the ruling party, it was governed by the Peoples Redemption Party, PRP, an opposition party but our consideration then was that the constitution was very sacred and we didn’t just want to treat it with levity. We agreed that under no circumstances were we going to tamper with the constitution via its suspension. We took that as a political decision.
“You know, as a true democrat that then President Shehu Shagari is, nobody would push him, neither did he conceive of it or allow himself to be pushed into suspending a governor or the elected legislature.
“He will not even accept it; and nobody suggested it to him.
Shagari sent the soldiers to Kano during the Maitatsine crisis to go there and restore order. The order they got was to restore law and order, protect the governor, protect the legislature and obey the rule of law. We did not suspend their fundamental human rights, we did not suspend habeas corpus; we did not.
“Well, I think in a matter of weeks; within weeks or a few months, we were able to restore law and order.
And what is more, it was not Kano alone, it was spreading to other parts of the north.
In fact, it was more widespread, than what is happening now.
But as we said, because we do not have all the facts, we must give the president benefit of doubt and we should not read anything political into it.”
Asked whether the 1979 constitution permitted emergency powers for the Shagari administration, Akinjide made it clear that as Attorney General and Minister of Justice, “I can tell you categorically that “Yes, the constitution permitted the government to invoke the powers then, but we chose not to.
If we wanted to do it, we could have done it. And that is how to exercise discretion. I would want us to follow that example. “But having said that, I would want us to give the president the benefit of doubt, he has access to intelligence reports, he was there first hand to observe the situation and he is the one in charge.
On whether the constitution allowed a lacuna regarding the sacking of the incumbent governor or the person to be appointed to take charge; neither did the constitution infer the suspension of the governor or the state legislature that were duly elected by the people, Akinjide said: “In the case of Western Nigeria, a civilian was appointed the head of government and he was given a tenure of six months to run the government at that time, but now, the president has appointed a retired military man to oversee the state. Well, the constitution gave the president the powers to declare state of emergency in the entire country or just in some parts where he feels law and order have completely broken down.”
But Akinjide himself was quick to point out that “In the system we operate, the presidential system we operate, the personality of the president and his style, approach and way of doing things have a lot of effect. Abraham Lincoln was the American president during that country’s civil war and a lawyer for that matter and he suspended habeas corpus and it was challenged in court. The court said Lincoln was wrong. Abraham Lincoln had no choice but to accept the verdict of the courts.”
Why Emergency
Provisions exist First, it has to be understood that the Emergency Rule provision is in the constitution of all countries, whether it is French, British or Indian. It is a very necessary power given to government.
The need for the invocation may happen in various ways - it may be a foreign aggressor or foreign aggression and it could be internal and it’s not something that is almost always foretold and because the government of the day would still have to deal with the unexpected situations, there is a need for emergency powers
For instance, the 1999 Constitution of the Federal Republic of Nigeria, in Section 305 talks about the procedure for the proclamation of emergency rule, starting with the gazetting,
the president can make the proclamation before seeking ratification from the National Assembly.
What people must know is that the emergency powers is a shared power and it is not exclusive to either the president or the National Assembly. They have to co-operate with each other. One can proclaim it while the other can refuse to ratify it or vice versa. And it is stated clearly in the constitution: Shared powers and not absolute powers for either the president or the National Assembly.
To be fair, as far as the constitution goes, the president followed the constitution and carried out its letters. Now, what usually happens in practice, and which may not be known to the public is that the president will take the presiding officers of the Senate and the House of Representatives into confidence as to the situation of things in the country or any part thereof, and they being patriotic citizens, they would understand and after that, the president would then make his gazette and from then the proclamation and then, in writing, he would officially inform them.
But in the event that he doesn’t get what the constitution says he would have to get, that is the end - everything becomes a nullity. The initiative is the president’s but it is still shared power. But having taken the initiative, he has to get the National Assembly’s approval.
The experience in India
Emergency powers is not exclusive to the Nigerian constitution. It was once used in India which is regarded as the greatest democracy with great experience in situations like this. It has emergency provisions in its constitution in Articles 352, 358 and 359.
Interestingly, the emergency powers were invoked by the late Mrs Indira Gandhi when she was Prime Minister with very disastrous consequences. Mrs Gandhi was challenged in court and the challenge was futile because she won. But that was not all. In the following election, Mrs Gandhi not only lost the election, she lost her seat in the legislature. And of all the states in India, she won less than half a dozen states; she was routed.
And that led to what is now known in India as the Sha Report - a commission was set up under the headship of a distinguished personality called Sha. That report is in the constitutional law of India as very definitive. It caused a number of amendments to the constitution of India in order to restrict the powers of the prime minister in declaring a state of emergency.
Today in India, it is no longer possible for the prime minister to use emergency powers arbitrarily, or for political purposes. That is India.
Section 305 of the Nigerian Constitution
For Nigeria’s Section 305, some amendments would come in handy.
First, under no circumstances should an elected government be dissolved.
It should be categorically stated that the governor should remain, the state assembly should remain and then the emergency power can be invoked. At least that’s how it is done in the United States. The powers are there but the elected governor remains in place and the legislature remains in place.
These are the areas I would cause to be amended.
We can’t do without the emergency powers.
But for the future, these are the amendments I would proffer.
Look, we should be very careful the way we suspend the constitution, which is what has happened in Plateau State.
The constitution of any country should be seen as a sacred document that can not just be suspended. The American constitution is sacred and you don’t find it being suspended just any how. You can make amendments, but you don’t just suspend it. I think we should follow the American example. We can’t just suspend a state legislature or a governor that was elected. That is one of the defects of this constitution because of its silence.
Interpreting the constitution (Ejusdem Generals)
Still, in all of these, the principle of Ejusdem Generals, had it been applied, would have tempered the thinking which went into the interpretation of the letters and spirits of Section 305 of the 1999 Constitution. The principle of Ejusdem Generals simply and clearly states thus: “Ejusdem generis, of the same kind, class or nature. In the construction of laws, will and other
instruments, the ‘ejusdem generis rule’ is, that where general words
