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Fundamental Human Rights
Declaration of state of emergency
edited May 2013
Whether or not Mr. president(GEJ), was right in granting
"inabsolute" state of emergency?
kudles 2 mr president 4 such a wise decision.
Savndaniel, regarding your question as to whether or not the president, was right in granting the state of emergency, I am of the opinion that based on the provisions of Section 305 of the Constitution, the president has the right to do so.
As stated earlier, Section 305 provides for power of the president to declare a state of emergency. One of the conditions that must be present before this grant is contained in Section 305 (3) (d) which is when there is a breakdown of public order and public safety in any part of the country which requires extraordinary measures to avert. I feel the Boko Haram incidences falls under this criteria and the president rightly acted by declaring a state of emergency on 14th May, 2013.
Regarding whether or not the Governors have a right to remain in office after the declaration, I do not think that is the contemplation of the constitution (though that it is the way it has been practiced under the Obasanjo-led administration). I am more fortified in my view by Section 305 (4) which allows the Governor to request the president to declare a state of emergency if the need arises. I do not see a declaration of a state of emergency as a vote of no confidence.
Finally, Section 305 (6) (e) provides for a 6-month life span for the declaration of the state of emergency. If normalcy is restored, things will go on as they used to. If not, the National Assembly can extend the time for another 6 months by passing a resolution to that effect. Would that mean that another election would be held within 6 months? That would cause more harm than good to the affected states.
I would also appreciate more opinions on this.
It's a step in the right direction
Hello! My people.
How 'state of emergency' work on a group that has no definate location? How this will not affect ordinarly Nigerians?
: I am familiar with the precedence that allows for the suspension of the constitution and adoption of the decree rule(as witnessed in Obasanjo's administration).
How can the fusation of both civil and mechinical power work, in the light of this state of emergency? Is it expedient?
How will the power between the democratic and military function be construed: The constitution did not specify.
edited May 2013
: There is a lot in controversy of view- As per of legal luminaries, who are at deviance from other affirmative opinion(as enshrine in the constitution) Femi Fani Kayode is of the view that Mr.President "did not act" in "full" capacity. He argured that state of emergency should be ABSOLUTE and not partial. I too, construed, from the provision of section 305 of the constitution and the definition of the term "state of emergency", that the Governors of those state would have step aside for full blown function of the military.(That was my former position)... I am yet to decide: I am waiting for more clerification form you, so that I don't parade a wrong precedence and wrong application of the constitution. Thanks. Savn.
I think GEJ was only trying trying to pleased d PDP, dats why he didn't declared a full SOE is d affected states, come to think of it, even Kano is suppose to b one of dose state, d no of people killed in Kano supassed dat of Adamawa, may b GEJ is been sentimental somehow, but not withstanding d partial declaration will not in any way affect d military operations in dose states!!!!
I agree with Babade, the Constitution does not directly address an inabsolute state of emergency but the rules which relate to a state of emergency appear to preserve the preexisting civillian order. the state of emergency operates as a suspension and not a disolution of the civillian government that was in power before the declaration. in this case, the Presidency has chosen to go a step beyond and limit that suspension, whether this is wise is yet to be seen.
"the fact that the constitution
does not specifically grant the power to suspend governors in a
state of emergency does not mean that those powers do not exist"
Another luminary's view:
"As far as state of emergency is concerned it means this in Nigeria..
"A state of emergency is a governmental declaration which usually
suspends a few normal functions of the executive, legislative and
judicial powers, alert citizens to change their normal behaviors, or
order government agencies to implement emergency preparedness
plans. It can also be used as a rationale for suspending rights and
freedoms, even if guaranteed under the constitution. Such
declarations usually come during a time of natural or man made
disaster, during periods of civil unrest, or following a declaration of
war or situation of international or internal armed conflict.".. Except
Nigeria created another form of state of emergency"
edited May 2013
My question now:
IS THERE ANY JUDICIAL AUTHORITY THAT MAY SUFFIX TO BACK up SOE(as per the removal of public servants from office), since the constitution did not EXPRESSLY state that A governor may be removed as deemed fit by the president exercising his perogative, for the purpose of achieving the desired result.
According to the saying, 'no one is fountain of knowledge' after listened to many talks & went through the passage of the constitution which makes provision for SoE which is section305 of Nigeria Constitution 1999 as amended, it doesn't categorically stated there that the Governor&MHA of a state where SOE is declared should be relieved of their activities. I think Obasanjo used his prerogative power in Ekiti&Plateau then. GEJ is still acting according to Nigeria Constitution. But it would have been better if the Governor&MHA suspended to show them their incompentencies. Two master can't paddle a boat @ the same time
I thank you all for all your comments. I appreciate the fact that there is a desire to know what is right and to advocate such. This gladdens my heart.
Savndaniel, while thanking you specially, I must state that I understand your dilemma. However, they are not as complicated as they seem. I think it would be good for me to point out that the declaration of the Obasanjo-led administration I referred to were those declared in Ekiti and Plateau states in his democratic dispensation. There was no suspension of the Constitution and there was no take over by the military. A civilian administrator was appointed for the states to be in charge of the caretaker committees.
Like Fani Kayode commented, which I agree with, the president has the power to remove the governors from office when declaring a state of emergency. It is however his prerogative whether or not to exercise the power. And like Oladimeji stated earlier, only time will tell whether that decision was a wise one.
With all due respect, the other luminary’s position is forceful and supported by the law. However, that cannot be regarded as the only interpretation that can be given to declaration of a state of emergency in Nigeria. His interpretation of the Constitution is his opinion and that cannot be equated to be the law.
I think McValenty knew how I would have concluded on this issue by saying ‘no one is an island of knowledge’. People are free to air their opinion regarding any subject matter of controversy. However, no singular opinion can be equated to be the position of the law. The Courts in performing their duty of interpreting the law are in the best place to give an interpretation to that Section vis-a-vis this current situation.
From the wordings of the Constitution, I feel safe to conclude that the president has the power to remove the governors when declaring a state of emergency. He however reserves the prerogative of exercising that power. His non removal of the governors is not a contradiction to any express or implied provision of the Constitution. The wisdom in the exercise of that prerogative and the possible consequence is one that only time will tell.
I still seek your opinion in this regard.
edited May 2013
I am sure that like me, a number of us here have read a number of articles regarding the declaration of a state emergency by the president. Here is an excerpt from an article by Mike Ozekhome, SAN.
“Governors are the duly elected Chief Executives of their states. Ditto members of State Houses of Assembly. Such elected officers cannot be sacked outside the provisions of the Constitution. To do so amounts to a great assault on cherished principles of Federalism and Constitutionalism. Executive powers are concurrently shared between the Federal Government and State Governments on matters of public safety, public morality and public order, with the Federal Government expectedly having an upper hand (SS. 5(1), 5(2) and 5(3) of the CFRN, 1999). But, even with the concentration of enormous powers at the centre that makes Nigeria to operate, not like a Federal structure as obtains in the U S, Canada, New Zealand, Australia and Germany, but like a militarily pyramidal unitary form of Government, President Goodluck could not have removed any of the Governors or Legislatures. Thank God he did not!
The apex Court has held in Attorney-General of Ogun State Vs. Attorney-General of the Federation (1982) 3 NCLR 583, that it is unconstitutional for the Federal Government to confer functions on functionaries of a state such as state Governors. Hapless Governors cannot deploy security agents to quell riots, insurrections or ethno-religious crisis. Being kings without crowns, farmers without matchets and a Pope without the papacy, the President had to intervene. Governors and Legislators can only be removed constitutionally. See Sections 188, 189, CFRN. Section 11(4) of the 1999 Constitution in fact states that: “nothing in this section shall be construed as conferring on the National Assembly power to remove the Governor or the Deputy Governor of the state from office”.
I hope this provide answers to some questions. I still welcome comments.
Thank you all; thank you Babade for your great effort(s), as a big plus on this issue: you have given me a grip. God bless you all; God bless Nigeria and every other part of the world.
Amen. Amen and Amen. You are welcome, my brother. It is nice for us all to know the true position of issues so we can know how best to articulate them.
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