MONTH 1 OF EMERGENCY RULE IN PLATEAU STATE
Emergency rule: The debate continues
From Emmanuel Onwubiko, Abuja
ONE month after the declaration of state of emergency in Plateau State, the courts have become inundated with suits questioning the constitutionality of the declaration. Those contesting the state of emergency are a coalition of human rights groups, some indigenes of Plateau State, Chief Gani Fawehinmi (SAN) and the National Conscience Party (NCP).
However, retired Justice of the Supreme Court, Justice Chukwudifu Oputa, has said that the Supreme Court is a better place to adjudicate over the matter. Oputa, who was the chairman of the defunct Human Rights Violation Investigation Commission (HRVIC), said only the nation's apex court can determine the constitutionality or otherwise of the emergency rule declaration.
Oputa had told an interviewer soon after the emergency rule was imposed that "this is something the court should do as a matter of urgency within a week or two. Not necessary through appeals to it, but through a special process seeking its interpretation on an important constitutional matter."
Oputa reportedly said: "A Supreme Court verdict on the interpretation of any section of the constitution is binding on all parties to a dispute. If it is a constitutional issue, not only one justice, but seven justices, will sit on the panel to determine the matter. What we need is the view of the Supreme Court, not that of individuals."
At the Federal High Court, Abuja, the litigants want the court to make a pronouncement that the declaration of emergency rule in Plateau was unconstitutional.
However, President Olusegun Obasanjo, through his lawyers led by Chief Afe Babalola (SAN), wants all the suits challenging the state of emergency before Justice Steve Jonah Adah, dismissed.
Babalola contends that the lower courts lack the jurisdiction and the matter was commenced wrongly through an originating summons.
Mr. Femi Falana, lawyer to the human rights coalition and Fawehinmi, hinted at the last court session on June 16, that he might pray the Federal High Court to refer the suit to the appellate court.
Cited as defendants in the suit filed by the human rights activists, are President Olusegun Obasanjo, Olujimi, and Maj.-Gen. Chris Alli, the sole administrator of Plateau, and Senate President, Adolphus Wabara.
Other defendants are the Speaker of the House of Representatives, Alhaji Bello Masari, the suspended governor of Plateau State, Joshua Dariye, his deputy, Michael Botmang, the state House of Assembly and the Attorney-General.
The plaintiffs are Mr. Chima Ubani (Civil Liberties Organisation), Dr. Beko Ransome-Kuti (Centre for Constitutional Governance), Moshood Erubami (Campaign for Democracy), and Luke Aghanenu (National Association of Democratic Lawyers), and Musa Ohimini Alachanu (National Association of Nigerian Students). Others are Wale Okuniyi (Youth Vigil for Democracy), Shehu Sani (Civil Rights Congress), Ledum Mitee of the Movement for the Survival of Ogoni People (MOSOP), Festus Okoye (Transition Monitoring Group), and Edetean Ojo (Media Right Agenda).
Also as joint plaintiffs are Dr. Jubril Ibrahim of the Citizens Forum, Potter Lapir Dapub of Middle Belt Progressive Movement and Olawale Fapohunda of Electoral Reform Network.
Among the constitutional questions the plaintiffs want the Federal High court to decide is:
- whether the Emergency Powers Act of 1961 made pursuant to Section 65 (1) of the 1960 Constitution is an existing law under Section 315 of the 1999 Constitution having ceased to exist with effect from, January 1, 1963 pursuant to Section 65 (2) of the 1960 Constitution as the state emergency would in the Western Region of Nigeria ended on Monday, December 31, 1962.
The two indigenes of the state that filed a separate suit through an Abuja-based lawyer, Dr. Valerie Azingie, are similarly challenging the constitutionality of the emergency rule.
Obasanjo's lawyers led by Babalola have gone to the Federal High Court with a notice of preliminary objection challenging the jurisdictional competence of the court to hear the matter as presently instituted.
Obasanjo filed his preliminary objection to another suit by Fawehinmi challenging the validity of the state of emergency.
Obasanjo, Olujimi, Alli, Wabara, and Masari want the second case by Fawehinmi dismissed because the plaintiffs in both suits lack the locus standi to commence the action.
Obasanjo and the other defendants gave the grounds of objection to include:
- that the originating summons has not complied with the mandatory condition precedent to the issuance of valid originating summons;
- that the plaintiffs lack the locus standi to institute the suit and that the suit having been commenced by originating summons is incompetent.
While the legal dispute continues, Nigerians expect that whatever verdict the courts turn in, the parties to the suit must comply for the rule of law to be maintained.
The emergency rule has created sharp divisions among legal and constitutional scholars. Foremost constitutional scholars like Chief Rotimi Williams (SAN) and Professor Ben Nwabueze (SAN) have noted that the emergency rule was based on the 1961 Emergency Powers Act 1961, which does not exist as a law in the country. The Nigerian Bar Association (NBA) said it is illegal.
However, Federal Attorney General and Minister of Justice, Akinlolu Olujimi (SAN) and Mr. Adetokunbo Kayode (SAN) in supporting the emergency rule, said that the Emergency Powers Act of 1961 is still an existing law.
The discordant notes have caused a group of human rights activists, to head to the Federal High Court, Abuja, seeking the quashing of the emergency rule.
In his broadcast on May 18, 2004, President Olusegun Obasanjo referred to his "constitutional responsibility as President" and relied on the Section 305 of the Constitution. That has not stopped the criticisms that have trailed the President's action. While saying that there was nothing wrong with the declaration, Kayode said that his colleagues who have kicked against the action of the President are wrong.
Kayode said: "While the death of the Emergency Powers Act No 1 of 1961 would be a clear wish of those who consider it a hateful legislation, wishes however do not repeal laws. A law can only cease to be law when it is repealed either by an express act or by necessary implication. Where a law has been directly or explicitly repealed, there can be no controversy.
"So I ask: Has the Emergency Powers Act 1961 been expressly repealed
- It has not. It follows then, that any argument as to the repeal of the Act must be deduced from or hinged on a repeal by implication."
He added that "the general and popular authority for the alleged repeal by implication of the Emergency Powers Act is Section 65 of the 1960 Independence Constitution."
It has been argued that the Emergency Powers Act lapsed by virtue of Section 65(2) of the 1960 Constitution, which provides that "any provision of law enacted in pursuance of this Section shall have effect only during the period of Emergency."
Kayode believes that the meaning of this provision cannot by any interpretation have the effect of nullifying any law made pursuant to Section 65 of the 1960 Constitution or the Emergency Power Act (made pursuant thereto) at the end of the emergency period. The Emergency Powers Act was not made (ex facie) only for the then Western Region. It was a general law made for the whole of Nigeria, he noted.
What Section 65 (2) of the 1960 Constitution meant was that the Emergency laws will be in effect only during the period of emergency, the law will not apply during any other period, i.e that the law was not a law of general application at all times. There is no basis for reading any other meaning into it beyond its plain connotation.
Kayode said that "the Emergency Power Act continues to be law in the statute books and only remains dormant at the end of every emergency."
On July 19, 1990, the Federal Military Government promulgated the Revised Edition (Laws of the Federation of Nigeria) Decree No 21 of 1990. The essence of the Decree was to update all the laws of the Federation applicable up to that time. The side note to Section 3 of this Decree gives "power to the Attorney-General of the Federation to authorise omission of certain enactments" from the revised law of the Federation being complied.
Kayode submitted that it is obvious that Attorney-General of the Federation had the power to exclude from the revised Laws of the Federation being compiled, some existing laws on the grounds that such laws were obsolete, or of a temporary nature, or under revision with a view to replacement, or of restricted or personal application.
Faulting the position of opponents of the emergency rule, he said: "Schedule II of Act Considered" at page 18 (1961) of Decree No 21 of 1990 shows that the Emergency Powers Act was classified as "Emergency Power Act - omitted.
"My submission is that in view of Section 3 (2) of Decree No 21 of 1990, this law still has the "same force and validity" as if it had not been omitted in the revised edition," therefore it is my considered opinion that the Emergency Powers Act, 1961 is an existing law under Section 315 of the Constitution of Federal Republic of Nigeria, 1999."
The lawyer said emergency rule can be proclaimed where there is "a clear and present danger of or an actual breakdown of public order and public safety in the country. In doing this, the President is obliged to comply with the Emergency Power Act 1961, in so far as those provisions are not inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, 1999. This law has to be read subject to modification in other to bring it in line with the 1999 Constitution since any law that is inconsistent with the provision of the constitution is likely to be declared void to the extent of the inconsistency.
Kayode explained that it is the duty of the National Assembly to make laws and regulations delimiting powers and responsibility in an emergency. A legislative vacuum will prevail if the provisions of the Emergency Powers Act are not adequate to meet the exigencies of the peculiar circumstances.
