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B N W: Biafra Nigeria World News |
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The emergency powers act of 1961 subsistsADETOKUNBO KAYODE
THE emergency powers Act No. 1 of 1961 was passed into law on April 17, 1961 being the day it was duly assented to by the then Governor-General of the Federal Republic of Nigeria. There is no doubt that the memories of the incidence which culminated in the enacting of that law still leave a sour taste in many a mouth. The unhappy antecedent of the law makes it probably the most unpopular and obnoxious law ever made in Nigeria. Even the pang and invidious effect of the law has not been any way extenuated by the passage of time. The wounds will not heal. The psychological craters dug in the mind of people directly or indirectly affected by the long hand of that law not yet fully filled. The anger against the law, apparently now being sought to be passed on to this generation, has not abated. But having said all that, it is my considered view that while the death of that law would be a clear wish of all who deem it a hateful legislation, wishes do not repeal law. A law can only cease to be law, when it is either repealed by an express act or by necessary implication. Where a law has been directly or explicitly repealed there can be no controversy. So the question is: Has the emergency powers Act 1961 been expressly repealed? No, it has not. So, it follows then, that any argument as to the repeal of the Act must be deduced from or hinged on repeal by implication. The general and popular authority for the alleged repeal by implication of the Emergency Powers Act is section 65(2) of the 1960 Independence Constitution. Section 65(2) states that: �Any provision of law enacted in pursuant 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 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�. 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�, and that since that emergency has ended, that is the end of that law. With all due respect, this provision does not by any rule of interpretation nullify any law made pursuant to Section 65 of the 1960 Constitution or the emergency powers act at the end of the emergency period. The emergency act was not made exfacie, at least for their Western Region. It was only made for the whole of the country. What that section is saying is that the law will have effect only during the period declared as emergency. There is no basis of reading any other meaning into it. This cardinal principle of interpretation of law has been upheld in many decided cases including the recent case of Attorney-Generalof Federation Vs Attorney-General Abia State (no. 2) (2002) 6 NWLR Part 764, page 542 at 794 where the Supreme Court relying on Attorney General of Bendel State Vs Attorney General of the Federation (1982) 3 NCLR 1; (1981) 10. S.C. 1 held as follows: �It is a fundamental and cardinal principle of interpretation that where in its ordinary meaning a provision is clear and unambiguous, effect should be given to it without resorting to external aid�. Section 65(2) is not a destructive or a repealing section, which automatically repeals any law made pursuant to section 65. The emergency powers act continues to be law in the statute books and only remains dormant at the end of every emergency. The second argument is based on the Interpretation Act, Cap 192 LFN 1990. By section 6(2) of the Interpretation Act Cap 192, where a law has expired, lapsed or ceased to have effect, then, it is to be treated as if it has been repealed. On July 19, 1990, the Federal military government promulgated the revised edition (law 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 the Decree gives �power to the Attorney General of the Federation to authorise omission of certain enactment�, from the revised law of the Federation being compiled. Section 3 provides: �The Attorney General of the Federation may by order specify a schedule of enactments which it shall not be necessary for the committee to include in the revised edition upon the grounds that such enactment are: (a) Obsolescent; or (b) Of a temporary nature; or (c) Under revision with a view to replacement; or (d) Or restricted or personal application. Enactment, 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 is thus obvious that the Attorney General of the Federation has the power to exclude from the revised laws of the Federation being compiled, some existing laws on the grounds that such laws were; (a) Obsolete (b) Of a temporary nature (c) Under revision with a view to replacement (d) Of restricted or personal application. But by Section 3 (2) any such laws omitted �shall have the same force and validity as if they had not been omitted in the revised edition�. The meaning of this is very clear. The fact of the omission of any law from the revised edition of the laws of the Federation 1990 does not mean that those laws have been repealed. Put in another way, the fact of the classification of law as obsolete, temporary, under revision, restricted or personal and by reason therefore, its non-inclusion in the current Law of the Federation of Nigeria (LFN) of 1990, does not amount to the repeal of that law. Schedule II, of �Acts Considered� at page xiviii (1961) of Decree no 21 of 1990 shows that the emergency powers act was classified as �emergency powers act-omitted, spent�. 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. I am not unmindful of Section 6(2) of the Interpretation Act, CAP 192, which provides that when an enactment expires, lapses or cease to have effect, such an enactment shall be treated as if it had been repealed. It is my humble submission that Section 6(2) does not apply in this case because Section 3(2) of Decree 21 of 1990 has made specific provision to what should happen in this circumstance. Second, Section 3(2) expressly provide that any such law shall continue to have its time to the Interpretation Act and the established position of law is that a law which is later in time supercedes in effect, an earlier law, and may even repeal it. Worse still, Decree no 21 of the 1990 is (or was) by virtue of the Federal military government (Supremacy and Enforcement of Powers) Decree no 13 of 1984 is superior to the Interpretation Act. In view of the above, it is my thinking that the 1961 emergency powers act, is still an existing law under Section 315 of the 1999 Constitution. Ejiwumi JSC in the case of Ikine V Edjeride (2001) 18 NWLR Part 745, page 446 at 476, citing with approval his judgment in Odugbo V Abu (2001) 14 NWLR part 732 page 45 at 81 where he relied on the dicta of lord Blackburn in the case of Garnet V Bradley (1878) 3 APP CAS, 944 at 966 where he said: �I shall not attempt to recite all the contrarieties which make one statute inconsistent with another. The contraria which make second statute repeal the first. But there is one rule, a rule of common sense, which is found constantly laid down in these authorities to which I have referred, namely that when new enactment is couched in a general affirmative language and the previous law, whether a law of custom or not, can well stand with it for the language used is all in the affirmative, there is nothing to say that the old law shall be repealed�Straddling V Mayor (1560) P. law 199 at p.206 such as by their necessity to import a contradiction, that is to say, where one see that it must have been intended that the two should conflict, the two could not stand together, the second repeals the first�. Does the President have power to proclaim state of emergency? A plain understanding of Section 305 makes it very clear that the President may by an instrument published in official gazette of the government of the Federation issue a proclamation of statement of emergency in the Federation or any part thereof. The circumstances in which this can be done are also clearly stated in the constitution. The President may issue a proclamation of state of emergency when Nigeria is in imminent danger of invasion or involvement in a state of war or at war. Emergency can also be proclaimed where there is �a clear and present danger of or an actual breakdown of public order and public safety in the country or any part thereof requiring extra-ordinary measure to subvert such danger. Wherever there is an occurrence or immediate danger, disaster or calamity affecting any community or section or any other incidence of public danger, which may constitute a threat to the country, the President may also issue proclamation of emergency. In doing this, the President is obliged to comply with the emergency powers act 1961, in so far as those provisions are not inconsistent with the provisions of the 1999 constitution. Any law that is inconsistent with the provisions of the constitution is likely to be declared void to the extent of its inconsistency. It is my view that all those who attempt to urge their views as to the meaning of or interpretation of the constitution should endeavour to do so in a wholesome and organic manner. The constitution is nothing more than a skeleton in the body. It does not, cannot, and is not expected to provide for every conceivable situation in a dynamic society. If the provisions of the emergency power act are not adequate to meet the exigencies of the peculiar circumstances at this time, then we have a legislative vacuum, which the National Assembly should fill with dispatch. (a) The National Assembly has an urgent duty to make laws and regulations, delimiting powers and responsibility, emergency and generally prescribing what may be done and by whom ant at what stage. (b) Whenever there is a legislative vacuum, in accordance with international or at least American practice, the executive arm of government usually allowed to act by executive authority to fill the vacuum. If the President has power to declare an emergency, which he no doubt has, which law says what he can do, or cannot do. Is there any law regulating the powers to be exercised under Section 305 of the constitution? Has the President broken any such law? Is it not the Christian that said where there is no law there is no sin? Apart from conjecture but it�s definitely clear that where the law is silent who is in charge in an emergency? Nobody? But what is hardly acceptable is for the government to fold its arms and allow a clear and present danger and I dare say a persistent dangerous situation that was in Plateau, Kano and clandestinely in surrounding states to continue. An escalation of this unacceptable situation can only cause a catastrophic implosion within the country. It is the duty of the government to uphold law, public order and public security. It is the duty of the (legal) elite of the country to assist the government, willy-nilly, to do this, and the way to do so, is not, with due respect, by legal hair splitting and academic jingoism. It is by insisting on and adopting and or encouraging a realistic constructive and altruistic approach to the interpretation and enforcement of the laws. From this, it follows with due respect, that all the debate as to the legality or otherwise of the declaration of emergency in Plateau State, suspension of the governor and the legislature in that state appears for the moment to be mere theoretical and academic exercise, futile and wasteful. It would be more patriotic, I believe, if all of us, stakeholders in this country, now come out to pull all pressure on the government to do the right thing. We should undertake to assist ourselves by assisting the government to enhance public security and public safety not only in Plateau State but also in the entire Federation. The rule of law cannot coexist with a state of anarchy or a state of anomie. Let all those who are patriotic, even if not for themselves, but for their children (or grand children) renew their pledge for the unity, peace and progress of this country.
Wednesday, June 30, 2004 |
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