THE SPIRIT OF THE CONSTITUTION AS REGARD THE PROCLAMATION OF ‘A STATE OF EMERGENCY'

                                                   

                                                                

  

 

                          Ochojila Nicholas

                             University of Jos

Introduction

The Constitution of the Federal Republic of Nigeria, 1999, as altered and amended and(hereinafter referred to as: “The Constitution”) is not just made up of words but also possesses ‘spirits’, which goes to its intent  core purpose of the Constitution.

The Constitution is seen to reflect the people's spirits, hence the concept of VOLKSGEIST (‘spirit of the people), as coined by German Legal scholars and rechoced by the erudite Jurist, Kayode Eso, JSC (as he then was) in his book Kayode Eso: Thoughts on Law and Jurisprudence, MJ Publishers Ltd. 259-260.

 

In the construction of the Constitution, the court must discern the spirits of the Constitution. In the judicial  dictum of Onalaja, JCA (as he then was) in N.E.W.  Ltd. v Denap Ltd. (1997) 10 NWLR [Pt. 526] 481 @ 524 which says: “ I do not conceive it to be the duty of the Court  to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve…” In the recent case of A.G.F. v A.G. of Abia State & 35 Ors. Suit Number SC/CV/343/2024, where the apex court held thus: “Therefore, the Constitution must be applied in such a manner as to not defeat its intention and purpose”. It is recondite law, the interpretation of the Constitution is unlike that of Statutes, as the construction of the former goes down to the root to decipher the intendment of the law framers.

 

  Overview of the Constitution on the Proclamation of the a State of Emergency

 

The main focus of this paper is to scrupulously examine the concept of ‘State of Emergency’ and discover the fossilised and immutable posture of the Constitution on this concept.This concept is provided for under Section 305 of the Constitution, and particularly by virtue of Sub-section 1, the President has the power to issue an instrument of the Proclamation of a State of Emergency.

 

Sub-section 2, makes it a sine qua non for the President to transit copies of the Proclamation to the leadership of the two national legislative houses (Senate President and the Speaker of the House of Representatives).

 

Sub-section 3, stipulates the various conditions that can necessitate the Proclamation of a State of Emergency and they include: when the Federation is at war, where there's imminent danger of invasion, occurrence of disaster, public danger that constitutes threat to the existence of the Federation or upon request to do so. Special attention must be given to Paragraphs (c) and (d) as they are the segments that relate to the Declaration of a State of Emergency in a state or a region. The wordings of the two Paragraphs specify that a State of emergency can be declared “in the Federation or any part Therefore”, where there is either actual breakdown of public Order and safety [para. (c)] or threat of breakdown of public order and safety [para. (d)] . Another phrase that bears need for attention is the stipulation “...to the extent as to require extraordinary measures to restore peace and security”, this caveat is essential to invoke this Proclamation in any state or region.

 

Sub-section 4, gives the opportunity for a Governor with approval of ⅔ of the State House of Assembly, to request to the President that a Proclamation of State of Emergency be made.

 

Sub-section 5, goes on to mandate that, before the President can exercise the power to declare a state of emergency in a state, a condition that must be manifest is that the Governor must have failed “within reasonable time” to make a request for such Proclamation.

 

Sub-section 6, gives the power to ratify the Proclamation to the National Assembly.

 

 

The combined interpretation of Section 305(3) and Section 305(5) of the Constitution, goes to the effect that before a Proclamation of a State of Emergency is made in a State, two main issues must be considered:

 

1. Whether the breakdown of public order and safety requires extraordinary measures to tackle;
2. Whether the Governor failed to request for a Proclamation to the President ‘within reasonable time’.

 

Whether the breakdown of public order and safety requires extraordinary measures to tackle.

 

This boils down to the gravity of the breakdown. In that regard, not every breakdown in public order and safety requires the Proclamation of a State of emergency, it must be malignant and one which is largely an emergency.

The Word “emergency” has been defined by the Court in the case of Sylva v I.N.E.C. (2018) 18 NWLR [pt. 1651] 310 as: “an unexpected and difficult or dangerous situation, especially an accident, which occurs suddenly and which must be dealt with quickly, and not in a normal way…”

Hence, regardless of the fact that the breakdown of public order and safety occurs, it is not sufficient to birth the Proclamation of a State of Emergency, the breakdown must be as such is described in the Constitution.

 

 

Whether the Governor failed to request for a Proclamation to the President ‘within reasonable time’.

 

It is visible to the blind and audible to the deaf, that the intendment of the law framers is that, caution should be exercised before a President declares a State of Emergency in a state, this is because of the underlying tenets of Federalism in the Constitution, particularly the principle of ‘Mutual Non-Interference’.

This principle in the words of Professor Ben Nwabueze in his book Federalism in Nigeria under the Presidential Constitution, 2003, page 3, where he stated that the doctrine implies that the exercise of the powers of the federal and state government should not be impeded or obstructed. The Constitution being a federal Constitution creates a system wherein the various governments are separate and autonomous. The Supreme Court in the case of A.G. Lagos State v A.G. Federation (2013) 16 NWLR [Pt. 1380] 249, held that: “The defining nature of federalism is the recognition of the separateness and independence of each government that make up the Federation”.

 

The letters and the spirits of the Constitution in its entirety, reflects this principle embedded in federalism, and Section 305 is no different, in the sense that before the President can interfere with the powers of the Governor, there must be lapse of “reasonable time”, where the Governor failed to request for such Proclamation. The Section proceeds to state that failure of the President to wait for the effluxion of  reasonable time will render the Proclamation otiose and a nullity.

 

 

Unfortunately, some attendant actions that succeeded the Proclamation of State of Emergency is an order to purportedly suspend the Governor and the Deputy Governor, to dissolve the State House of Assembly, and even going far to appoint a “Sole Administrator”.

This begs two questions; Can the President suspend a democratically elected Governor, and Can the President appoint a person to govern a state.

 

Can a Governor be suspended by the President?

 

Aside from the argument for the Independence of the various governments in the Federation, the Constitution does not allow for such ultra vires actions.

Section 176 of the Constitution creates the office of the Governor. Although the Constitution is silent as regards the suspension of a Governor, the best we can do is to speculate whether such contemplation eluded the law framers, or the Constitution did not want the operation of such.

However concerning removal which is the closest term to “suspension”, Section 188 of the Constitution states the only Constitutionally possible way of removing a Governor and/or a Deputy Governor, which is by way of impeachment by the State House of Assembly, and not by the President. See the case of DAPIANLONG v DARIYE (2007) 8 NWLR [Pt. 1036] 239.

Any act that suggests otherwise will be faced with going head to head with the Constitution and the latter must prevail. See the case of Nwokedi v Anambra State Govt. (2022) 7 NWLR [pt. 1828] 29 SC.

 

 

Can a President appoint a person to govern the state?

 

One of the distinguishing sections between the 1999 Constitution and any other Constitution, is the infusion of Section 1 (2) of the Constitution which states that: “The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the  Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution”.

From the clear and unambiguous wordings of the above Section, it bars any one from taking control of the Federal or State Government in any manner other than that stipulated by the Constitution.

How can one become a Governor?

This question is answered by Section 178 of the Constitution, which provides that the only means is by way of election. Any other manner, including appointment by the President, shall be a gross violation and affront to the provisions and tenor of the Constitution.

 

The office of “Sole Administrator” or any name in that light, is nothing but a total nullity and unknown to law.

Conclusion

 

Thus, in considering the propriety of a Proclamation of a State of Emergency, the above concepts and issues must be considered. The Constitution never gives any one or body absolute power, this is all under the doctrine of ‘Limited Government’ as promulgated by Professor Ben Nwabueze.

Although the power to make such Proclamation is provided under the Constitution, it's exercise and the extent thereof is briddled by the Constitution also.