If that happens, it may lead to chaos or anarchy and I do not think the fathers of the constitution contemplated that such chaos should exist.
There was total breakdown of public order and public safety in Plateau State leading to massive loss of lives and property. Several efforts were made by the Federal Government to resolve the crisis in Plateau State but to no avail. This situation no doubt led to the use of extraordinary measures within the contemplation of the constitution, to resolve the crisis.
The Proclamation of a state of emergency by the President also suspended the Governor, the Deputy Governor, and the State House of Assembly. This suspension is not tantamount to removal from office of the Governor or the Deputy Governor. Neither has the House of Assembly been dissolved or sacked contrary to the erroneous conclusions being made. There is therefore no question of the President or the National Assembly violating Section 11 of the 1999 Constitution.
Let me now address your erroneous contention on the Emergency Powers Act 1961. You observed that Section 4 of Decree No. 21 of 1990 empowered the LAW REVISION COMMITTEE to omit some laws from the revised edition of the Laws of the Federation 1990 and argued that since the Emergency Powers Act 1961 was one of the laws omitted, then the Act is no longer part of our law. On this point you inadvertently failed to consider some fundamental issues, which include but are not limited to the fact that in exercise of the same power, the Law Revision Committee (LRC) itself asserted or indeed conceded that, "As stated elsewhere and particularly in Section 3(2) of the Revised Edition (Laws of the Federation of Nigeria) Decree 1990, the omission of these enactments from the publication does not derogate from their validity and effect where those otherwise exist."
For ease of reference, Section 3(2) of the Decree, which you failed to mention in your letter and which the Committee (LRC) referred to, provides, "Enactments omitted in accordance with subsection (1) of this section, shall have the same force and validity as if they had not been omitted in the revised edition."
It may be necessary to inform you that the Court of Appeal (Lagos Division) sitting in a powerful panel consisting of Hon. Justice M.A. Akanbi (then President of the Court of Appeal), Hon. Justice Ogebe and Hon. Justice Emmanuel O. Ayoola (as he then was) had the opportunity to interpret section 3(2) of the Decree quoted in paragraph 13 above, in the case of Joseph Ibidapo V. Lufthansa Airlines (CA/L/78/92) reported in (1994) 8 NWLR, page 355 at 370 paragraphs B-D. They held unanimously as follows: It must be borne in mind that the LAW REVISION COMMITTEE was not essentially a law making body. Its function was mainly to 'tidy up' the laws of the Federation by 'revising and updating' them for compilation as provided for under the law, which created it. But even if it can be said that the process of revising the law, the Committee can exercise legislative powers (which I do not concede it can) the fact still remains that insofar as Section 3(2) is concerned, it did not feel able or competent to effect amendment thereto by employing those qualifying words 'where those otherwise exist."
The Court proceeded further at page 373 paragraph F-H of the report to hold emphatically that the mere omission of any enactment from the revised edition does not amount to a repeal of the omitted enactment. I quote the holding for ease of reference.
"I have tried to show that the mere omission of the 1953 Order from the Revised Edition of the Laws of the Federation does not amount to a repeal of that order or for that matter any omitted enactment. The omission authorised to be made cannot be equated with a repealing clause in an Act. For, if the two were to give rise to the same result and effect, it would, in my view, have been unnecessary to have clause 3(2) in the Revised Edition of the Act of 1990. Again as I said before, I have not been shown any legislation expressly repealing the 1953 order, and I am unable to imply any. I have already held that it is an existing law. So, I agree with the respondent's counsel that where a repeal is intended, it should expressly have been so stated."
This decision was confirmed by the Supreme Court in Ibidapo Vs. Lufthansa Airlines (1997) 4 NWLR Pt 498, 124.
This is therefore sufficient proof that the Emergency Powers Act 1961 is still subsisting until expressly repealed. Strangely enough, the legal pontification and postulates of all the critiques, without exception, of the declaration of emergency apparently demonstrated a lack of awareness of Section 3(2) of Decree No. 21 of 1990 and the Court of Appeal and Supreme Court decisions referred to above. Otherwise you all would not have argued that the Emergency Powers Act 1961 is a non-existent law. Section 3(2) of Decree No 21 of 1990 and the Court of Appeal and Supreme Court decisions on same are too clear for anybody to misconstrue.
Strenuous efforts have been made in your write-up to paint a very gloomy picture of possible consequences that would befall this country as a result of the proclamation by Mr. President of the State of Emergency in Plateau State; accusing him of misusing his powers in the current situation in that State. Indeed your analysis attempts to conjure up phantoms simply to show that Mr. President is a dictator who does not respect the principles of the rule of Law. With due respect, your summation of Mr. President is grossly inaccurate and therefore misleading. You have simply overlooked the realities of the situation, including of course the Constitutional Rule of Law in an emergency.
I do not believe that it is a responsible or patriotic attitude to the resolution of the serious crisis in Plateau State to suggest that Mr. President is misusing his powers in the current emergency.
Surely, the Constitutional duty of every government faced with actual and/or imminent widespread disorder and chaos, as has been the case in Plateau State, to meet the emergency situation with extraordinary measures pursuant to Section 305 of the 1999 Constitution cannot be denied. As Chandrachud J. in the India Case of A.S.M. Jabalpur V.S. Shukla AIR 1976 SC 1207-1392 has said: "The 'Rule of Law' argument like 'the Basic feature' argument is intractable. Emergency provisions contained in part XVIII of the Constitution, which are designed to protect the security of the State are as important as any other provision of the Constitution. If the true construction and effect of Article 359(1) is as I have stated it to be, it is impossible to hold that such a construction violates the rule of law. The rule of law during an emergency is as one finds it in the provisions contained in Chapter XVIII of the Constitution. There cannot be a brooding and omnipotent rule of law drowning in its effervescence the emergency provision of the Constitution."
The Constitution is the paramount and supreme law of the land and since it enjoins the President in a period of emergency to take extraordinary measures to protect the security of the State or any part thereof in a situation of actual breakdown of public order and public safety, the suspension of the Governor and the State House of Assembly come within the term "extraordinary measures" when objectively considered. The Constitution is the 'Rule of Law' and there cannot be any rule of law other than the Constitutional Rule of Law. The emergency provisions are by themselves the Rule of Law during a period of emergency. The decision whether or not to declare a state of emergency in any area is a matter of high state policy, which should not be dismissed in a facile manner or approached with mental reservation as it appears in your letter.
No doubt it is true that the wider the scope of power, the greater are the chances of its abuse but this by itself cannot be justification for denying the President the power he has under the Constitution. Indeed to do so is to defeat the very purpose of the emergency provisions of the Constitution, which is to protect the security of the state. The fact of the matter is that the President has not abused his powers. On the contrary, the situation in Plateau State is returning to normalcy day by day as a consequence of the Proclamation of a State of Emergency in that state.
We should not project our own preferences or values to destroy or nullify Section 305, which is clear on its face. In this connection, let us heed the golden advice of Chandrachud J in the Indian case of A.D.M. Jabalpur Vs. Shukla (Supra) to wit: "A frank and unreserved acceptance of the Proclamation of Emergency, even in the teeth of one's own pre-disposition, is conducive to a more realistic appraisal of the emergency provisions."
Finally, let me restate to you that Mr. President was compelled to adopt the emergency proclamation option purely as a last resort in the interest of all Nigerians, for the defence of the constitution and in accordance with his Oath of Office. The task of all patriots now, one of whom I believe you are, is in my view, to avoid overheating the polity and rather see the matter from this objective viewpoint in order to ensure the return of peace to that treasured geographical part of Nigeria called Plateau State.
