INTRODUCTION Emergency in ordinary parlance means a time of crisis, a moment of danger or suspense. A state of emergency therefore is a governmental declaration that recognises the existence of this peculiar situation and takes some necessary actions to restore the peace and governmental stability of the society. During this period, the maxim, salus populi suprema lex has a special force and to that effect, some normal functions of the executive, legislative and judicial powers may be suspended.
Citizens are alerted to change their normal behaviours, or government agencies are ordered 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.
In Nigeria, the constitution provides for the declaration of a state of emergency by the President alone on the whole country or in a state, on request by the State Governor, in the following instances: a.
when the Federation is at war; b. when the Federation is in imminent danger of invasion or involvement in a state of war; c. when there is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security; d. here is a clear and present danger of an actual breakdown of public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger; e.
there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation; f. there is any other public danger which clearly constitutes a threat to the existence of the Federation; or g. the President receives a request to do so in accordance with the provisions of subsection (4) of the section.
In Nigeria, the President draws the authority to declare a state of emergency from his Emergency Powers which are inherent with his office and this empowers him to do whatever he deems necessary to restore peace and ensure the security of life and property for citizens of Nigeria and non-Nigerians alike residing in the areas affected by the crisis. This runs for a period of six (6) months but can be extended by the National Assembly alone with a two-thirds majority vote of approval.
For instance, the situations where these emergency powers have been exercised include the violent ethno-religious crisis in Jos, Plateau state in 2004 which resulted in the total break-down of law and order. Also in Ekiti state in 2006 as a result of the impeachment of both the Governor and his deputy for gross misconduct by the Ekiti State House of Assembly. Recently, there have been calls by the Nigerian people to the President to declare a state of emergency due to the electoral violence that erupted in Bauchi and Kaduna states, but it was not declared.
In the United States of America, the President in time of crisis uses his emergency powers which allow the Federal Emergency Management Agency (FEMA) to bypass normal administrative and jurisdictional rules. Declarations of emergency can also provide special federal aid such as during the Flood of 1993 along the Mississippi River or in New Orleans after Hurricane Katrina. President Abraham Lincoln used his emergency powers to suspend the writ of habeas corpus in Maryland during the American Civil War. In the United Kingdom, Section 1(1) of the Emergency Powers Act 1920 empowers the Monarch to declare a state of emergency.
It states that: “If at any time it appears to His Majesty that any action has been taken or is immediately threatened by any persons or body of persons of such a nature and on so extensive a scale as to be calculated, by interfering with the supply and distribution of food, water, fuel, or light, or with the means of locomotion, to deprive the community, or any substantial portion of the community, of the essentials of life, His Majesty may, by proclamation (hereinafter referred to as a proclamation of emergency), declare that a state of emergency exists. The Monarch, Privy Council or the Prime Minister can make Emergency Regulations under the Civil Contingencies Act 2004 if there is a serious threat to human welfare, the environment or in case of war or terrorism. These regulations last for seven days unless confirmed otherwise by the Parliament. A state of emergency was last invoked in 1974 by Prime Minister Edward Heath in response to increasing industrial action. In Victoria, Australia, a state of emergency can be declared if there is a threat to employment, safety or public order.
The effect of the state of emergency enables the Parliament to make desired regulations to secure public order and safety. Though fairly uncommon in democracies, dictatorial regimes often declare a state of emergency that is prolonged indefinitely for the life of the regime. In some situations, martial law is also declined allowing the military greater authority to act. In other cases, emergency is not declared and de facto measures taken or decree-law adopted by the government.
Egypt has been governed under emergency law almost continuously since 1967 and without interruption since Hosni Mubarak became president in October 1981 after the assassination of president Anwar Sadat. The law has been repeatedly renewed since then. The law gives the executive – in practice the Ministry of Interior – extensive powers to suspend basic rights such as prohibiting demonstrations, censoring newspapers, monitoring personal communications, and detaining people indefinitely without charge.
Egyptian defense attorneys and human rights groups say about 5,000 people currently remain in long-term detention without charge or trial. Some prisoners held under the emergency law have been in jail for more than a decade. Also in Syria, the state of emergency law that had been in force since 1963 was only recently repealed by President Bashar al-Assad in April 2011. In Argentina, the provision for declaring a state of emergency is repeatedly abused by dictatorship with long lasting states of siege giving the government a free hand to suppress opposition.
LEGAL EFFECTS AND CONSEQUENCES OF A STATE OF EMERGENCY Under a state of emergency, there is the increased presence of personnel of the armed forces the police and even plain clothes security officials. They are authorized to invade the privacy of homes, emails and even telephone conversations of anybody suspected of anti-governmental activities. They can arrest and detain anyone without charge and for as long as they please. Public demonstrations, freedom of press are prohibited.
Pursuant to this authorization, several human rights are infringed upon with impunity. They include: the right to life, personal liberty, freedom of movement, freedom of religion, freedom of expression and the press, right to fair hearing, and the right to peaceful assembly. Historically in Nigeria, a declaration of state of emergency has never been declared on the whole country in a democratic government but it has been declared in some states. In all instances, such declaration means the outright suspension of the Governor, is Deputy and the State House of Assembly or Parliament by the President as seen in Western Nigeria (1962), Plateau State (2004), and Ekiti State (2006). Based on this, opinions are divided among eminent jurists, legal icons and constitutional experts on the legality or otherwise of these actions taken during the six-month emergency period. The actions of the President have been argued to be backed by the provisions of Emergency Powers Act of 1961 deriving authority from Section 65 (2) of the 1960 Independence Constitution of Nigeria.
Again, the judiciary is replete with arguments pertaining to whether this law is still in existence in Nigeria or otherwise. Therefore the legal effects and consequences in Nigeria revolve around these four main issues as follows: 1. The suspension, abuse and/or denial of the human rights of citizens. 2. The suspension of public officers such as the Governor, his Deputy and the State House of Assembly and the Appointment of an Administrator. 3. The Constitutionality of the Appointment of a Sole Administrator to rule the state 4.
Arguments and legal suits challenging various aspects and actions of governance during the emergency rule. 1. The suspension, abuse and/or outright denial of the human rights of citizens. “Human” means “relating to human beings”, relating to members of the races of homo sapiens – men women, children. ‘Right’ refers to that which is just or correct, truth, fairness, justice, just or legal claim. ‘Human Rights’ therefore means the freedoms, immunities and benefits that according to modern values, all human beings should be able to claim as a matter of right in the society in which they live.
The Black’s Law Dictionary defines human rights as the freedoms, immunities, and benefits that, according to modern values especially at an international level, all human beings should be able to claim as a matter of right in the society in which they live. They are regarded as fundamental or basic to the individuals who assert them. Thus civil liberties and human rights are primarily individual rights, claimed by the individual or group of individuals as part of and which relates to, the position of the individuals in an organised state (Foster, 2008).
On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights. Following this historic act the Assembly called upon all Member countries to publicize the text of the Declaration and “to cause it to be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories. ” These rights have been so enshrined in the Nigerian Constitution in Chapter IV, CFRN 1999. They are as follows: a. Right to Life; b.
Right to Dignity of Human Persons; c. Right to Personal Liberty; d. Right to Fair Hearing; e. Right to Private and Family Life; f. Right to Freedom of Thought, Conscience and Religion; g. Right to Freedom of Expression and the Press; h. Right to Peaceful Assembly and Association; i. Right to Freedom of Movement; j. Right to Freedom from Discrimination; k. Right to own Immovable Property. In most countries, the state of emergency and its effects on human rights and freedoms and governmental procedure are regulated by the constitution and/or a law that limits the powers that may be invoked.
Rights and freedoms may be suspended during an emergency, for instance, freedom of movement, right to fair hearing, right to peaceful assembly and association as seen in the instances of Syria, France and India. In Nigeria, the Constitution recognises that some measures may need to be taken during a period when the corporate existence of the country may be threatened or may be in jeopardy. The essence of this is to protect the whole public or corporate existence of the nation. In such a situation, the interest of an individual must step down for the interest of the nation. In the famous case of F. R. A.
Williams v. Dr. M. A. Majekodunmi, the facts of the case are: The plaintiff/applicant (Williams), was a legal practitioner and a prominent member of the Action Group and its Legal Adviser. Following a rift in the Action Group, the then Premier, Chief S. L. A. Akintola, was removed by the Government of Western Nigeria and Chief Dauda Adegbenro was installed as Premier instead. When the Western House of Assembly convened to pass a vote of confidence on Chief Adegbenro’s government, Chief Akintola’s supporters in the House created an uproar which resulted in the dispersal of members by the police using tear gas.
The Federal Parliament, because of the two personalities claiming to be Premier, in exercise of its powers under the Constitution of 1960, declared a State of Emergency in Western Nigeria and approved Regulation whereby the defendant (Majekodunmi) was appointed and empowered to administer the region as Administrator for the region. Inclusive of his powers was the right to serve orders restricting individuals’ movement to an area defined in the Restriction Order.
In exercising of his powers, Majekodunmi caused a Restriction Order to be served on Williams and required that Williams shall be and remain within a distance of three miles from 193, Abeokuta Road, in the township of Abeokuta. It was dated the May 29 1962 and signed by Majekodunmi This assent points to the verity that the Restriction Order under The Emergency Powers (Restriction Orders) Regulation of 1962 was served to deny Williams his personal liberty, right to freedom of movement and fair hearing because he could not appear in court. In the No 1 case decided on June 1, 1962, presided and read by Sir Lionel Brett F.
J. , the issue for determination was: “Whether in this case, the defendant’s change of his decision in withdrawing plaintiff’s right to appear for himself in court is based on the needs for public order. ” It was held that “the defendant shall be and he hereby is restrained from giving effect or causing effect to be given to the restriction order dated the 29th May, 1962, and served on the plaintiff under the Emergency Powers Restriction Orders) Regulations, 1962, so far as the said order would restrict the plaintiff from leaving the prescribed area at or after 6. 00 a. m. n the 4th June, 1962, and travelling thence by the normal route to the Federal Supreme Court, Lagos, and there arguing the motion filed by him and set down for hearing on that day. And that after arguing the said motion the plaintiff shall return without delay by the normal route to the prescribe area unless the Court shall otherwise direct. And that if the defendant grants the plaintiff a permit under Regulation 2 of the Emergency Powers (Restriction Order) Regulations, 1962, to enable him to attend this Court and argue the said motion this order shall be of no effect.
Justices John Idowu Conrad Taylor and Sir Vahe Bairamuan concurred. In Canada, police powers are extended. A state of emergency in this country has resulted in the mass arrest of all the people in an area and they were detained for six hours without charging them. This is called a ‘precluding’ arrest especially when a suspect is required. The International Covenant on Civil and Political Rights (ICCPR) permits the state to derogate from certain rights in times of emergency.
Any measures derogating from obligations under the covenant however, must only be to the extent required by the exigencies of the situation and must be announced by the state party to the Secretary-General of the United Nations. But there are some rights which are too fundamental to be suspended; they are referred to as non-derogable rights. They include the right to life, human dignity, prohibition of torture or cruel human punishment, prohibition on servitude or forced labour, right to religion, right to fair labour practices and the protection of children’s rights.
These rights are not permitted to be denied by any government even in times of emergency. There have been arguments by political theorists’ that human rights monitoring activities under the Charter of the United Nations is invasive and a threat to National Sovereignty. 2. Suspension of public officers such as the Governor, his Deputy and the State House of Assembly In all instances of the declaration of state of emergency in Nigeria the foremost public officers of the state were suspended and an Administrator, mostly military, is appointed to take over affairs of the state.
The first state of emergency in Nigeria was declared in 1962 and the then Minister of Health, Dr. M. A Majekodunmi was appointed to take over the helms of affairs in Western Region of Nigeria while also suspending the Western House of Assembly. In 2004, a state of emergency was declared on Plateau State by former President Olusegun Obasanjo due to the severe ethno-religious crises and thus the state Governor, Joshua Chibi Dariye, his Deputy and members of the State House of Assembly ceased to hold their respective offices for an initial period of six months.
This suspension did not affect the local councils. Subsequently a military administrator, former Chief of Army Staff, Major-General Chris Alli (rtd) was appointed to take over the affairs of the state and see to the restoration of peace. Also in 2006, this declaration was made in Ekiti state by the then President of Nigeria following the unconstitutional impeachment of the Governor for corruption and the subsequent appointment of Former Speaker Friday Aderemi as Head of Government by the Ekiti State House of Assembly.
The Governor, Mr. Fayose who denied reports that he had fled the country, said he was in hiding because he feared for his life but he was still Governor of Ekiti State. His deputy Biodun Olujimi, who was also impeached, also laid claim to the Office of Acting Governor. This situation prompted President Obasanjo to state on national television thus: “We have come to a sad, ridiculous and unacceptable situation in Ekiti where we have three governors … It is dangerous for our democracy to allow this flagrant violation. Thus a state of emergency was declared to prevent the situation from descending into chaos and Brigadier-General Adetunji I. I Olurin (rtd) was appointed. The suspension of the public officers of a state consequent on the declaration poses a major challenge to the constitutional government in Nigeria. The Attorney-General of the Federal Government had insisted that due process was followed in the exercise. He relied on the Provisions of the Emergency Act, 1961 which he described as within the ambit of Section 315 of the constitution.
He also referred to the exercise of a similar power removing the Premier of the Western Region after the declaration of a state of emergency in that region under the Independence Constitution of 1960. The rationale for the suspension of the House of Assembly was articulated by the President himself in the following words: Having a state of house of assembly in a position under a state of emergency is incongruous and may not allow for the expeditious actions that the Administrator will need to put the state back into a situation of peace, harmony, security for all and maintenance of law and order throughout the state.
Professor Ben Nwabueze (SAN), a leading authority on constitutional law in Nigeria, has argued with considerable force that the power given to the President under Section 305 of the Constitution is limited to mere declaration of a state of emergency and does not include the power to make laws and to execute them with respect to matters within exclusive state competence. Section 305 of the 1999 Constitution does not contain, as was the case with the 1960 and 1963 Constitutions, any clause permitting the National Assembly to make ‘laws for Nigeria or any part thereof with respect o 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. In constitutional democracies, particularly those operating written constitutions, it is not permissible for creatures of statutes such as the President to act outside the four walls of the statutes that created them.
The powers to remove a Governor, vested exclusively in the State House of Assembly, are elaborately stated in Sections 188(1) – (11) CFRN 1999 and the National Assembly is precluded by Section 11(4) from exercising this power during a period of emergency. In the situations of Plateau and Ekiti States, the removal or suspension was done unilaterally by the President. The constitution also makes elaborate provisions for the dissolution of a House of Assembly, for the recall of individual legislators and for succession to the office of the Governor in case of temporary absence or permanent incapacity of the office-holder.
Even during a period of emergency, only the National Assembly is empowered by section 11(4) to take over the performance of the functions of the State House of Assembly but then only to the extent ‘necessary or expedient’ and only if the assembly ‘ is unable to perform its functions’. The subsection even goes further to enter a caveat as follows: Provided 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.
From the available facts, the House of Assembly in Ekiti was not unable to perform its functions. As a matter of fact, the House a day before the proclamation elected new officers and took a number of other decisions in a peaceful atmosphere. Thus, the warrant for the suspension of the House cannot be section 11(4) of the Constitution. 3. The Constitutionality of the Appointment of a Sole Administrator In times of emergency the constitution requires the President to take ‘extra-ordinary’ measures to return the state to a status of stability.
These extra-ordinary measures are allowed under the Doctrine of Necessity. The term is used to describe the basis on which extra-legal actions by state actors, which are designed to restore order, are found to be constitutional. The suspension of the Governor and his Deputy in conjunction with the appointment of an Administrator has been argued to be one of such necessary actions to be taken during a state of emergency. Arguments on the contrary derive authority from the constitution which is the grundnorm, that is, a basis for the legality of other laws.
To this effect, any other law that is inconsistent with the provisions of the Constitution, shall to the extent of its inconsistency to be null, void and of no legal effect. The constitution states in Section 1(2): The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this constitution.
Thus the appointment of a sole administrator to take control over the government of the state is unconstitutional because the constitution, in section 305, does not provide for the removal of a Governor and Deputy Governor and subsequent take-over by an administrator during periods of emergency. In the words of William Pitt, (1759 – 1806) “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. More so, the constitution makes no provision for ‘suspension’ of elected officers it only provides for impeachment. The aforementioned extra-ordinary measures envisaged by the constitution should not be interpreted in terms of the removal of elected but rather only in terms of the deployment of the police and other security forces to maintain law and order or the making of such laws permitting restrictions on and derogation from fundamental rights, other than the right to life and to personal liberty, during a period of emergency.
Even then, the constitution qualifies the extent of such restrictions derogation when it provides in section 45 (2 & 3), viz: (2) An Act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of section 33 or 35 of this Constitution; but no such measures shall be taken in pursuance of any such Act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency; provided that nothing in this section shall authorize any derogation from the provisions of section 33 of this Constitution, except in respect of death resulting from acts of war or authorize any derogation from the provisions of section 36(8) of this Constitution. (3)In this section, a “period of emergency” means any period during which there is in force a Proclamation of a state of emergency declared by the President in exercise of the powers conferred on him under section 305 of this Constitution. 4. Arguments and legal suits challenging various aspects and actions of governance during Emergency Rule The obvious issue that comes to mind is the question bothering on if the situation at hand was enough reason for a declaration of a state of emergency by the President.
This discretion is clearly that of the President and he is the sole determinant and initiator of the exercise except under circumstances provided for in Section 305 (3g), (4) and (5) where a request to such effect is initiated by the Governor of a state. The door seems closed on any advocacy against the President’s decision. This issue has its locus classicus in the case of Liversidge v. Anderson where the House of Lords held that in a situation of emergency, such as Britain fighting World War II, the court might not want to inquire into the reasonableness of the grounds of taking actions even when the statute clearly state that the cause must be reasonable.
In fact, in Nigeria, with specific reference to emergency declaration, it was held in the case of Williams v. Majekodunmi that the issue of whether a state of emergency existed was outside the province of the court of law but only ‘within the bounds of Parliament’. Another issue questions the existence of The Emergency Powers Act of 1961 duely passed into law by the then Governor-General of Nigeria, Dr. Nnamdi Azikiwe. 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 which 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 there under 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. 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. In response to the first submission, the provisions of Section 65 of the 1960 Constitution does not by any rule of interpretation nullify any law made pursuant to the Emergency Powers Act at the end of the emergency period. 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. To the second submission, 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 the Decree gives power to the Attorney General of the Federation to authorise omission of certain enactment for reasons of its obsolete status, temporary nature, if it’s under review with a view to replacement and if it’s restricted or of 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. CONCLUSION Just as a state of emergency is constitutional due to the unrest and instability of the state, so also some undesirable effects are incurred in the period of the state of emergency. A common occurrence here in Nigeria, is that the Governor, his Deputy and members of the State House of Assembly are suspended even though this kind of suspension is not expressly stated in the constitution. Declaring a state of emergency is one of the executive powers of the President. In this situation he is expected to do everything within his powers to handle the situation.
It is also noted that this emergency power can be abused by the President and also used for politically selfish gains. Perhaps the basis for this abuse lies in the fact that the guidelines for the actions taken by the President in a bid to restore normalcy are not expressly stated in the 1999 Constitution of the Federal Republic of Nigeria. This lacuna gives the President a free hand to do whatever he deems necessary to quell the insurgence and return the Federation or any part thereof to a position of stability. Basically this essay has generally analysed the prevalent legal effects of the declaration of a state of emergency in Nigeria as well as parts of the world.
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