Emergency Rule: 'Where Obasanjo Erred'
For the benefit of our people, it is necessary to explain how and why section 305 of the 1999 Constitution, reproducing section 265 of the 1979 one, came to be in the form it is, and that there is no lacuna at all in it, as some think. The contents and wording of the section, in particular, the omission from it of the provisions of section 65(1) of the 1960 Constitution, were the product of extensive, informed and protracted deliberation in both the Constitution Drafting Committee (CDC), especially its Legal SubCommittee, and the Constituent Assembly in 1976-78. As will be pointed out later on, there is just one drafting error which somehow crept into the final wording.
The contents of the section were informed by a desire, and were purposely designed, to prevent the recurrence of the disastrous perversions of constitutional power in Western Nigeria in 1962. The perversions were disastrous for Nigeria because they heralded the collapse of our first experiment in constitutional democracy as an independent country. The collapse came tragically by way of the overthrow of the Constitution by the armed forces in January 1966, and the forcible imposition of military rule that lasted 28 good years from 1966 to 1999, except for a shortlived civilian restoration from 1979 to 1983. The perversions in Plateau State in 2004 are a cause for deep anguish, frustration and disillusion for all true democrats and constitutionalists, especially those of us who laboured so hard to see the provisions of section 305 entrenched in the Constitution in the hope of preventing the repetition of the 1962 perversions.
There were three such perversions, each nearly as grievous as the others, all three of which were made possible or facilitated by section 65 of the 1960 Constitution, which provided as follows: "65(1) Parliament may at any time make such 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.
(2) Any provision of law enacted in pursuance of this section shall have effect only during a period of emergency;
Provided that the termination of a period of emergency shall not affect the operation of such a provision of law during the period, the validity of any action taken thereunder during that period, any penalty or punishment incurred in respect of any contravention thereof or failure to comply therewith during that period or any proceeding or remedy in respect of any such penalty or punishment.
(3) In this section 'period of emergency' means any period during which (a) the Federation is at war (b) there is in force a resolution passed by each House of Parliament declaring that a state of public emergency exists; or (c) there is in force a resolution of each House of Parliament supported by the votes of not less than twothirds of all the members of the House declaring that democratic institutions in Nigeria are threatened by subversion."
Perversion Number One
Under the provisions of section 65(3), literally interpreted, an emergency, apart from war, was determined, not by the physical situation actually existing in the country or any part of it as an objective fact, but simply by what Parliament, in its unfettered opinion, said by resolution was an emergency, no matter that the situation actually existing was perfectly normal and peaceful. Parliament was thus able to declare an emergency in Western Nigeria merely on the strength of a pre-arranged and stagemanaged affray among the members inside the chamber of the regional House of Assembly precipitated by a few hired opposition members, although no disturbances or threat of them occurred anywhere else in the region, and although the opposition members, content to have accomplished their assignment, did not try to carry their affray outside the chamber of the House all the members departed peacefully to their various homes after the police had cleared the legislative chamber and locked it up.
The declaration of an emergency in Western Nigeria in 1962 was thus clearly an abuse and perversion of the intendment and spirit of the provisions of section 65 of the 1960 Constitution, and was done with the object of furthering partisan political interests. Section 65 simply took it for granted that an emergency in a democratic setting implies a situation of grave danger to the public, and that members of parliament would be democrats whose resolution, guided and informed by good sense and reasonableness, would conform to the commonly accepted meaning of an emergency.
With the background of the perversion of section 65 of the 1960 Constitution, three significant changes were effected by section 305 of the 1999 Constitution (reenacting section 265 of the 1979 Constitution), with the aim of preventing a repetition of such perversion. First, following the precedent in most constitutions that institute a presidential system of government, the power to declare a state of emergency is vested in the President, but checkmated by the counter force of an independent National Assembly invested with power to revoke a declaration by the President within a specified time two days if the Assembly is in session or ten days if it is not in session. The checkmating of the President by the National Assembly for this purpose is meant to provide greater protection for the people against abuse of power, a check and protection that were lacking in section 65 of the 1960 Constitution.
The kind of situation that must actually exist as an objective fact to warrant the declaration of an emergency is explicitly set out in the Constitution, and it is expressly provided that the President can declare an emergency ONLY when such a situation exists, but not otherwise. The prescribed situations are
(i) war;
(ii) imminent danger of invasion or involvement in a state of war;
(iii) "actual breakdown of public order and public safety .... to such extent as to require extraordinary measures to restore peace and security";
(iv) "a clear and present danger of an actual breakdown of public order and public .... requiring extraordinary measures to avert such danger";
(v) "an occurrence or imminent danger of the occurrence of danger or natural calamity affecting the community or a section of the community";
(vi) "any public danger which clearly constitutes a threat to the existence of the Federation; or
(vii) the President receives a request from the Governor of a State to declare an emergency there if the situation is confined within the territory of that State" [emphasis supplied].
These specifications are the most elaborate that can be found in the constitution of any other country in the world. Thus, the situation warranting the declaration of an emergency is spelt out in the Constitution in terms so clear, so precise and unequivocal as to leave hardly any room for abuse. The test of "clear and present danger of an actual breakdown of public order and public safety", the only term in the provisions whose meaning may not be as obvious and indisputable as may be wished, was first propounded by the great Oliver Wendell Holmes of the US Supreme Court in a unanimous opinion in Schenck v. United States 249 US 47 (1919), and its meaning has been expounded and amplified in a series of cases since then. "No danger .... can be deemed clear and present, unless the incidence of evil apprehended is so imminent" per Justice Brandies of the same Court in Whitney v. California, 274 US 357 (1927). As the Court held in Thomas v. Collins 323 US 516 (1945), the test of clear and present danger is not satisfied simply by showing that there is a substantial and rational connection between the danger apprehended and public safety or public order; the danger of a breakdown of public order and public safety must be imminent, and the threat of it must not be doubtful or remote.
The word public is underlined for emphasis because of its special significance in the whole design of section 305 to prevent the perversions of 1962. It is used with deliberateness to refer to the state, its government or the people as a whole or a considerable portion of the population. Where the danger affects, not the entire population of a state, but only a portion of it, then, the portion so affected must be considerable enough to justify describing it as the "public" whose safety or order will warrant declaring an emergency over the entire state. The disturbances in Plateau State affect only a district in just one local government area out of the seventeen local government areas in the State. Does a district constitute the "public" as the term is used in section 305 of the 1999 Constitution? Certainly, members of the House of Assembly of Western Nigeria fighting among themselves within the confines of the chamber of the House in 1962 did not constitute the "public" of the Region.
The third change intended to be effected by section 305 of the 1999 Constitution is the restriction on the power to declare an emergency in one State only. The maintenance of public safety and public order, which is the reason d'�tre for the power to declare an emergency, is a matter concurrent to both the federal and state governments. Section 11(2) of the 1999 Constitution emphatically affirms that the power granted to the National Assembly by section 11(1) to make laws with respect to the maintenance of public safety and public order shall not "preclude a House of Assembly from making laws" on the matter. Likewise, both the President and the Governor of each State have concurrent power for the maintenance of public safety and public order under section 5 which vests in them the power to "execute and maintain" the Constitution as well as "the execution and maintenance of laws made by" their respective legislative Assemblies which constitutes the President the chief security officer of the Federation and the Governor the chief security officer of his State.
Given, then, the concurrent power of the Governor of a State for the maintenance of public safety and public order in his State, which is not "precluded" by the like power of the President over the whole Federation, it follows that the Governor should be part and parcel of a decision to declare an emergency in his State alone. The initiative should come from him by way of a request to the President; at all events, an emergency should not be declared in his State alone over his head. That is what section 305(4) and (5) seeks and is intended to do. The provision needs to be reproduced in its precise wording to enable the intention behind it to be appreciated.
(4) The Governor of a State may, with the sanction of a resolution supported by twothirds majority of the House of Assembly, request the President to issue a Proclamation of a state of emergency in the State when there is in existence within the State any of the situations specified in subsection (3)(c), (d) and (e)of this section and such situation does not extend beyond the boundaries of the State.
(5) The President shall not issue a Proclamation of a state of emergency in any case to which the provisions of subsection (4) of this section apply unless the Governor of the State fails within a reasonable time to make a request to the President to issue such Proclamation".
Unfortunately, the intention behind the abovequoted provisions is not effectually achieved by the wording of section 305(3) which specifies a request by the Governor of a State, as one of the grounds for the declaration of a state of emergency, the implication being that a state of emergency can be declared in one state only if any one of the other grounds is met. Item (g) in section 305(3), which is preceded by the word "or", should not have been included; had it not been included, _ section 305(4) and (5) should have been worded differently in order to effectuate the intention.
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