Nwabueze: You cannot justify the declaration
ITHANK you for your letter of July 19, 2004, which is a reply to my letter to Mr. President, Commander-in-Chief of the Armed Forces, dated May 27, 2004. I appreciate the courtesy of the reply, although its language is not entirely courteous.
Your letter is a good effort to justify the constitutionality of Mr. President's suspension of the constitutional organs of the Government of Plateau State; the constitutionality or otherwise of the declaration of a state of emergency in that State is governed by different considerations, which I do not really wish to go into here.
But your effort is vain one. If I may say so with great respect, undue partisanship and tendentiousness had prevented you from seeing the issues in their true constitutional perspective. Perhaps, it is to be expected that you would try as strenuously as possible to justify the correctness of advice which you, as the Chief Law Officer of the Federal Government, gave to Mr. President in a matter as critical to our fledgling constitutional democracy as the suspension of the constitutional organs of the government of one of the constituent states and federal system or you would not have given it in the first place. It requires a rare quality of mind given to only a few, for anyone in the position of the Chief Law Officer of the Government to admit the mistake of his advice in a matter as critical and explosive as this.
The basic issue is whether under our governmental system in which separate organs of government are, by the Constitution, established for the Federation and for each state, and powers are divided between them in such a way that each exists and functions independently of the other both is normal and abnormal times, the Federal Government or a State Government can, with faithfulness to the system, suspend the other. Such would be manifestly subversive of the system. That is what the 1979 and 1999 Constitutions seek to prevent.
Nothing could be more patently unconstitutional as a subversion of the federal system for the President, by the State of Emergency (Plateau State) Proclamation 2004, published as Statutory Instrument No.4 of 2004, to suspend "the office of the Executive Governor ... and the House of Assembly" of Plateau State with effect from May 18, 2004 without explicitly setting at the Proclamation to see that what it suspends is the office of Governor and the office of member of the House of Assembly of Plateau State. You, as Attorney General of the Federation and the other law officers in your Ministry, cannot be unaware of the crucial difference between suspending an office and suspending only its holder. I do not expect Mr. President in his position to have adverted his mind to the difference.
In effect, therefore, the provisions of sections 176 and 90 of the Constitution, which establish those offices or organs for the government of Plateau State, are suspended by a mere Executive Proclamation; they are erased, albeit temporarily, from the Constitution. To suspend is defined in New Webster's Dictionary of the English Language as "to cease for a time"; "to cause to cease for a time from operation or effect". The Constitution gives the President no power to suspend any of its provisions for however short a period of time.
Nor is the suspension of the Governor and members of the House of Assembly of Plateau State from office (as distinct from the suspension of those offices) authorised by any provisions of the Constitution. Section 305, on which you rely as authority, does not empower, much less "enjoin", the President, "in a situation of actual breakdown of public order and public safety" giving rise to a declaration of a state of emergency, to suspend the Governor and members of the House of Assembly of Plateau State or to take any other "extraordinary measures to protect the security of the State or any part thereof" without authorisation by law enacted by the National Assembly (para. 21 of your letter). Such a view of section 305 is a complete distortion of the reference in section 305 (3)(c) and (d) to "actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security" (section 305 (3) (c ); "a clear and present danger of an actual breakdown of public order and public safety ... requiring extraordinary measures to avert such danger' (section 305 (3) (d) emphasis supplied. The words italicised in the quotation are concerned only to define the nature or the seriousness and gravity of the situation which must exist as an objective fact to warrant the exercise of the power conferred by Section 305 (3) to declare a state of emergency; they confer no authority for, and have nothing to do with, actions that may be taken following or after the declaration of a state of emergency. The opening words of section 305 (3) leave no room for doubt that the subsection is concerned merely to define the nature of the situation that warrants the declaration of a state of emergency. They are as follows: "The President shall have power to issue a proclamation of a state of emergency only when ...." The situations when the power may be exercised are then set out as (a) to (g). Clearly, only the power to declare a state of emergency is conferred by section 305 (3). To imply or read into the subsection, power to take extraordinary measures after the declaration of a state of emergency would be a distortion of the provision.
Emergency powers comprise two distinct powers, viz. (a) power to declare a state of emergency; and (b) power to take extraordinary measures to deal with the exigencies of the emergency situation after a state of emergency has been declared. Section 305 of the 1999 Constitution (section 265 of the 1979 Constitution) in that, in addition to the power to declare a state of emergency, they also conferred power to take extraordinary measures to deal with the exigencies of the emergency situation after a state of emergency has been declared. The latter power was contained in section 65(1) of the 1960 constitution (section 70 (1) of the 1963 one ) which authorised Parliament to make "laws for Nigeria or any part thereof with respect to matters not included in the legislative lists as may appear to Parliament to be necessary or expedient for the purpose of maintaining or securing peace, order and good government during any period of emergency" Pursuant to the power conferred upon it by this provision, Parliament then enacted the Emergency Power Act 1961 which authorised the taking of extraordinary measures during the period of a state of emergency declared in accordance with section 65(3) of the 1960 Constitution (section 70(3), 1963 Constitution), including the suspension of the regional Governor, Premier and other designated functionaries, but not the suspension of the offices.
Because of the way it was misused during the period of the state of emergency declared in Western Nigerian in 1962, the power to take extraordinary measures to deal with the exigencies of an emergency situation after a state of emergency has been declared was, as a result of a deliberate decision by the Constitution Drafting Committee and the Constituent Assembly in 1976 - 78, omitted from section 305 of the 1999 constitution and moved in a modified form to section 11 where it more appropriately belongs; the power, as modified, remains part of the constitution.
You ask the question whether, when a state of emergency is declared under section 305, the President should "fold his arms and allow the crisis in the State to engulf the entire country", with the danger that that "may lead to chaos or anarchy", and you assert that that could not have been "contemplated by the father of the constitution." The impression created by your assertions is that the Constitution contains no provisions outside section 305 authorising the taking of extraordinary measures during an emergency declared pursuant to section 305.
There are in fact two such provisions. There are, first, the provisions in section 11(3), (4) and (5) which, as earlier stated, re-enact, in a modified form, the extraordinary measures authorised by section 65(1) and section 70(1) of the 1960 and 1963 constitutions respectively. The 1999 constitution is, like its predecessors, a written instrument of government; its various provisions form an organic whole and should be read together. Section 305 should be read together with, and not in isolation from, section 11.
Then there are the perhaps more relevant provisions in section 45 which, because they are often lost sight of in the arguments about the president's actions in Plateau State, need to be set out in full:
(1) Nothing in section 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society -
(a) In the interest of defence, public safety, public order, public morality and public health; or
(b) For the purpose of protecting the rights and freedom of other persons.
(2) An Act of the National Assembly shall not be invalidated by reason only that it provides for 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.
Provided that nothing in this section shall authorise any derogation from the provisions of section 33 or 35 of this Constitution except in respect of death resulting from acts of war or authorise any derogation from the provisions of section 36(8) of this Constitution.
(3) In this section, a "period of emergency" means any period during which there is in force a Proclamation of a state of emergency declared by the President in exercise of the powers conferred on him under section 305 of this Constitution" (my italicisation).
The words "law" and an "Act of the National Assembly" are italicised to show that the extraordinary measures in the form of derogations from guaranteed rights, which are permissible under section 45 quoted above, requires an enabling law before they can be carried out by executive action. An enabling law is as necessary during an emergency as during normal times for measures derogation from guaranteed rights. An enabling law specifically authorising executive actions that derogate from guaranteed rights or from other vested rights of the individual, like suspension from office, are required in order to comply with the principle of the Rule of Law. That is what is meant when we speak of the Rule of Law in relation to an emergency declared in terms of section 305.
If the declaration of a state of emergency and the reference in section 305(3)(c) and (d) to "extraordinary measures" have the effect, as you contend, of empowering the President to take such measures, then, an enabling law would not have been required by section 45. The President could just go ahead and curtail, restrict or interfere with the rights and freedoms of the individual without a law authorising such actions. This shows conclusively that the requirements of the Rule of Law are not met by the provisions of section 305 which, as stated earlier, do no more than empower the President to declare a state of emergency, not of course in his unfettered discretion as you imply in paragraph 4 of your letter, but in the situations and manner specified in section 305.
In an emergency declared pursuant to section 305, the extraordinary measures are targeted almost entirely at the rights and freedoms of the individual. Hence the twelve emergency regulations issued by virtue of the Emergency Powers Act 1961 during the emergency in Western Nigeria in 1962 were all measures curtailing, restricting or derogating from the rights and freedoms of the individual. The reason is because an emergency increases the proximateness of the connection between public order/public safety and an emergency situation makes ever more imminent, ever so "clear and present", the danger which unrestricted individual liberty poses to public order and public safety, thus making "reasonably justifiable in a democratic society" the curtailment of individual liberty by law - not by mere executive action. "The Executive", said the Privy Council, speaking through Lord Atkin, "can only act in pursuant of powers given to him by law. In accordance with British jurisdiction no member of the Executive can interfere with the liberty or property of a British subject except on condition that he can support the legality of his action before a court of justice" - see Eshugbayi Eleko v. Government of Nigeria (1930) AC 662.
I shall consider later on your purported re-surrection of the Emergency Powers Act 1961, modified, as you say in paragraph 7 of your letter, to bring into line with Constitution. The purported re-surrection of the Act came as an after-thought long after the promulgation on May 18, 2004 of the State of Emergency (Plateau State) Proclamation 2004 and after my letter to Mr. President dated May 27. The resurrection of the 1961 Act was an after-though because the President was reported in ThisDay newspaper of May 19 to have said that he "hoped the administrator will not require new laws in the administration of the state", and that "if he does, it will be in the form of regulations which he will submit to the President for consideration by the Federal Executive Council and promulgation by the President for the State".
Going back to the question you pose in paragraph 10 of your letter as to what "the fathers of the Constitution contemplated" should be done in the situation prevailing in Plateau State as at May 18, 2004, I venture to submit that what the "fathers" contemplated was the use by the Federal Government and the Plateau State Government under Governor Dariye of their combined powers to deal with the exigencies of the situation, with or without the declaration of a state of emergency; particularly the concurrent powers of both Governments to make and execute laws "with respect to the maintenance and securing of public safety and public order and providing, maintaining and securing of such supplies and services as may be designated by the National Assembly as essential supplies and services (section 11(1) and (2); the power of the President and the State Governor to give direction to the Inspector-General of Police and State Commissioner of Police respectively with respect to the use of the police to maintain and secure public safety and public order (section 215(3) and (4) and the power of the President to bring in the armed forces in aid of the civil authorities for the purpose of suppressing insurrection and restoring order (section 217). The maintenance and securing of public safety and public order are, afterall, the purpose a declaration of emergency is meant to serve.
The cardinal misconception underlying the argument in your letter is that a state of emergency declared in accordance with section 305 of the Constitution invests the President, by its inherent force, with authority to do whatever he deems necessary to avert "chaos" and to "protect the security of the State", including the suspension of the constitutional organs of the Government of one of the constituent States of the Federation. Enough has been said above to show that an emergency, even when it is validly declared under section 305, has no such effect or force in law. "Emergency", the U.S. Supreme Court has held, "did not crate power; it merely marked an occasion when power granted by law should be exercised" see Youngstown Sheet and Tobe Co. v Sawyer, 343 U.S. 579. "Extraordinary conditions", the same court has said in another case, "may call for extraordinary remedies, but they do not create or enlarge constitutional power" - see Schechter Poultry Corp. v United States 295 US 495 (1935).
The Sawyer case has a direct bearing on President Obasanjo's actions in Plateau State, because the issue there also arose out of a state of emergency declared in the country by the president as a result of the war in Korea in which the United States was involved. In response to a strike call in the steel industry during the emergency, the President, without express statutory authorisation, but solely on his own independent authority under the U.S. Constitution to preserve the security and safety of the nation, ordered the steel factories to be seized and operated by government agents in order to avert a national catastrophe which might follow from a stoppage of steel production owning to the strike. But he immediately sent a message to Congress informing it of his action, and inviting it to approve or revoke his action as it thought fit. In an action by the owners of the factories challenging the constitutionality of the seizure and praying that they be returned to them, the U.S. Supreme Court held that, without express statutory authorisation, the President had no independent power under the Constitution to take possession of the steel mills and operate them by his agents, on the ground that seizure of private property even during a declared emergency requires legislative authorisation by Congress, to which alone the Constitution has entrusted the law-making power in both good and bad times.
After stating, as earlier quoted, that "emergency did not create power", and that "it merely marked an occasion when power granted by law should be exercised", the Court continued as follows:
"The fact that is was necessary that measures be taken to keep steel in production does not mean that the President, rather than Congress, had the constitutional authority to act...The President can act more quickly than Congress. The President with the armed forces at his disposal can move with force as well as with speed...Legislative power, by contrast, is slower to exercise. There must be delays while the ponderous machinery of committees, hearings, and debates is put into motion. That takes time; and while Congress slowly moves into action, the emergency may take its toll in wages, consumer goods, war production, the standard of living of the people, and perhaps even lives. Legislative action may indeed often be cumbersome, time-consuming, and apparently inefficient. But the doctrine of the separation of powers was adopted by the Constitution of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of governmental powers among three departments, to save the people from autocracy" - quoting Justice Brandeis in Myers v. United States 272 US 52 (1926).
The president had tried desperately to derive legal authority for his action from the provision in the constitution designating him as commander-in-chief of the armed forces, but that too was emphatically rejected by the court. "We cannot," it said, "with faithfulness to our constitutional system, hold that the commander-in-chief of the armed forces has the ultimate power as such to take possession of private property in order to keep labour dispute from stopping production" at p.587 - per Justice Black delivering the opinion of the court. "The constitution," said Justice Jackson in a separate concurring judgment, "did not contemplate that the title, commander-in-chief of the army and navy, will constitute him also commander-in-chief of the country, its industries and its inhabitants" at pp.642-4.
The argument in support of the constitutionality of the president's suspension of the constitutional organs of the government of Plateau State is not helped one bit by the quibble over the words "suspension" and "removal," which only serves to trivialise the issue. Suspension is a "temporary removal from office" according to the definition of the world in new webster's dictionary of the English language. Nor is the argument advanced by your assertion that "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." That is a should be expected. For autocratic rule is, indisputably, more effective than a constitutional government in dealing with public disorders. But should we for that reason embrace the former and abandon the latter To quote the telling words of Professor Charles Mcllwain in his widely acclaimed book. Constitutionalism: ancient and modern (1940) at p.32.
"A constitutional government will always be a weak government when compared with an arbitrary one. There will be many desirable things, as well as undesirable, which are easy for despotism but impossible elsewhere. Constitutionalism suffers from the defects inherent in its own merits. Because it cannot do some evil it is precluded from doing some good. Shall we, then, forgo the good to prevent the evil, or shall we submit to the evil to secure the good This is the fundamental practical question of all constitutionalism. It is the foremost practical issue in the present political world, and it is amazing, and to many of us very alarming, to consider to what insufferable barbarities nation after nation today is showing a willingness to submit, for the recompense it things it is getting or hopes to get from an arbitrary government."
I now come to your purported resurrection of the emergency powers act 1961. I could not possibly have overlook section 3(2) of the revised edition (law of the federation of Nigeria) Decree No.21 of 1990. Your heavy reliance on the subsection is perhaps the strangest part of the arguments in your letter. The provision of the subsection is so clear and unambiguous as to leave no room whatsoever for differences of opinion concerning its meaning. It says: "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." The words italicised show clearly that the subsection is concerned only with enactments omitted in accordance with section 3(1) and has no application at all to enactments omitted in accordance with section 4 and the schedule or in accordance with any other provision of the decree.
Section 3(1) provides that "the attorney-general of the federation may by order specify a schedule of enactments" to be omitted from the revised edition. Pursuant to this, the attorney-general made an order titled the revised edition (authorised omissions) order 1990 containing a list of 124 legislation of which 18 were local Nigerian acts and 106 were British imperial acts and subsidiary legislation, one of them being the carriage by air (colonies, protectorates and trust territories) order 1953 whose omission from the revised edition was in issue in Ibidapo v. Lufthansa Airlines cited in your letter. With great respect, I am unable to understand why you spent so much time and space on the decisions of the Court of Appeal and the Supreme Court in the Ibidapo case, knowing, as you ought to know, that section 3(2) and the decisions based on it have no application to the omission of the emergency powers act 1961 from the revised edition.
The emergency powers act 1961 is not one of the 124 enactments listed in the attorney-general's order. It was omitted from the revised edition by the law revision committee in accordance with section 4 and the schedule to the decree No.21 of 1990, which empowered the committee to "omit all enactments which have... expired or have become spent" or for other reasons specified in the schedule. Section 4 and the schedule stand on their own as separate, independent provisions, which are not made subject to section 3(12) by Decree. The Emergency Powers Act 1961 was omitted by the committee as having become "spent", as stated in a table attached to the revised edition.
The omission of the Act derives authority from another source - the Constitution itself (1979) which in Section 274 (reproduced verbatim in Section 315 of the 1999 Constitution) empowered "the appropriate authority" identified as meaning the President, the Governor or "any person appointed by any law in revive or rewrite the laws of the Federation of a State") to "make such modifications in the text or any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution." And "modifications" is defined to include "addition, alternation,. omission or repeal". Thus, the Law Revision Committee had the same power as the President to modify the Emergency Powers Act 1961 or any other law existing on January 31, 1990 by omission or repeal.
Even assuming the Emergency Powers Act 1961 not to have ceased to exist by reason of its omission from the revised edition by the Law Revision Committee, it is unconstitutional and void for inconsistency with section 11 of the 1999 Constitution and as an abdication or an impermissible delegation of legislative power in violation of Section 4. These grounds for the unconstitutionality of the Act need no be pursued further here.
To conclude, I maintain that the suspension of the constitutional organs of the government of Plateau state by a mere executive instrument issued by Mr. President is unconstitutional as a subversion of our federal system. I also think that anyone whose passions would be inflamed by public criticisms of his public actions should have no business heading the government in a constitutional democracy. Short of public demonstrations and riots, criticisms on the pages of newspapers, not private letters, are the only effective means available to the public for expressing their views and feelings on the conduct of public affairs and seeking to obtain a reversal of obnoxious governmental measures.
By his actions in Plateau State, done apparently under your advice as Attorney-General of the Federation, Mr. President has alienated many of us who formerly considered ourselves as his friends and who has been attracted and been attached to him because of this principled and courageous stand against the bestialities of General Abacha's despotism.
I do not consider it a mark of a patriotic citizen of this country to condone a palpable illegality in the name of patriotism. My interest in the autocratic rule clamped on Plateau state goes beyond that an ordinary Nigerian citizen or that of a constitutional lawyer. It springs from the concern as well as the anguish and frustrations of one who was a member of the Constitution Drafting Committee in 1976-78, the chairman of one of its sub-committees, a member of its legal sub-committee, a member of the Constitution Assembly 1978 that adopted the Constitution of 1979, and a principal architect of the provision in section 265 of the 1979 constitution (reproduced in section 305 of the 1999 constitution) which has aimed at plugging the loopholes that facilitated the perversions of constitutional power in Western Nigeria in 1962. I am deeply pained and devastated that the perversions which we worked so hard to prevent should have recurred in a more brazen, outrageous and unbashed fashion.
The 1962 emergency rule in Western Nigeria involved only a perversion of power while observing the due processes of law by enacting the Emergency Powers Act 1961 and promulgating twelve emergency regulations by virtue of its authority and under which the repressive measures were taken. The 2004 Emergency Rule in Plateau State, on the other hand, is a case of brazen, bare-faced illegality - an utter disregard and disdain of the due process of law by an administration which came to power on the crest of so much public confidence and faith - your belated but futile resurrection of the emergency powers act 1961 notwithstanding.
We should await the pronouncement of the Supreme Court on these momentous issues. It would be in the interest of the country to have the apex court pronounce on them.
