[allAfrica.com] Nwabueze Faults Obasanjo On Emergency Rule This Day (Lagos) NEWS May 21, 2004 Posted to the web May 21, 2004 By Joseph Ushigiale Lagos President Olusegun Oba-sanjo's decision to declare a state of emergency, suspending Governor Joshua Dariye of Plateau State, his deputy and the State House of Assembly and replacing them with an Administrator, has been described as "the greatest tragedy to befall the rule of law in the country." In the latest reaction to Obasanjo's action on the persistent ethno-religious violence in the state, a constitutional lawyer and former secretary general of Ohaneze Ndigbo, Prof. Ben Nwabueze (SAN), in a statement entitled "The Rape of Constitutionality And Legality in Plateau State," said "the suspension of the elected governor and the House of Assembly of Plateau State and their replacement by an Administrator by the democratic government of President Obasanjo without authorization by law, must rank as perhaps, the greatest tragedy to befall the rule of law in Nigeria." Nwabueze pointed out that all the military governments that have ruled the country, observed the rule of law to the point of enacting laws as a basis for their executive action, "especially those actions that affected the rights or interests of individual." He, however, noted that "there was seldom, if ever, an executive action of the military government not backed by law, decree or edict, made normally prospectively, but sometimes retrospectively." Citing relevant sections of the 1999 Constitution to buttress his argument, Nwabueze argued that under the present constitution, "a state governor elected into office cannot be removed from office by reason solely of an emergency validly declared under section 305 of that constitution." Nwabueze stressed that "there is nothing in the provisions of the 1999 Constitution relating to an emergency that can cause or be used to make a state governor to cease to hold office within the meaning of section 180 of that constitution." He explained that the removal of a state governor solely by reason of an emergency situation prevailing in the state, whether or not an emergency is formally declared under section 305, is completely and unequivocally precluded by the proviso in section 11(4), "which declares that 'nothing in this section shall be construed as conferring on the National Assembly, power to remove the governor or his deputy from office." He argued that "the governor remains in office during such period with his executive powers undiminished, since by section 11(4) any laws enacted by the National Assembly pursuant to this section shall have effect as if they were laws enacted by the House of Assembly of the state." Nwabueze pointed out that "if the National Assembly cannot, in the exercise of its power to make law under section 11(4), remove a state governor, it cannot by law authorize the President to do so. The President has no inherent power to remove or suspend a governor." On the suspension of the State House of Assembly, he pointed out that "even though a state of emergency has been declared in the state in terms of section 305, the National Assembly is not to assume power to make laws on matters within exclusive state competence, unless the State House of Assembly is unable to perform its function by reason of the situation prevailing in the state." He also clarified that "the situation prevailing in the state independently of, not one brought about by a declaration of an emergency. A House of Assembly shall not be deemed to be unable to perform its functions so long as the House of Assembly can hold a meeting and transact business." Nwabueze explained that a state of emergency validly declared under section 305, does not by itself confer the power of making laws on the executive. He added that at any point in time, the action of the executive must be authorized by law, especially in matters affecting the rights and interests of an individual and not for the executive to "confer the necessary legal authorization on itself." He cited sections 65 and 70 respectively of the 1960 and 1963 Constitutions which authorized the declaration of state of emergency, adding that the sections also empowered parliament to make laws for the maintenance of law and order within the period of the emergency. The professor of law stated that as a result of the provision, "parliament enacted the Emergency Powers Act 1961 in regard to the declaration of a state of emergency. He added that 12 regulations were made by the governor-general in council under the Act. According to him, "the most far-reaching effect of the constitutional provisions was the Emergency Powers (General) Regulations of 1962, which empowered the Prime Minister to appoint an Administrator for Western Nigeria." He said the appointment of an Administrator in the 1962 case was authorised by the regulations to administer the government of the region, with power to legislate by means of Orders for peace, order and good government of the region with full executive power. The Prime Minister then suspended the regional governor, Premier, Ministers and the State House of Assembly. Nwabueze said the Emergency Powers Act 1961 and the Emergency Powers (General) Regulations 1962 clearly went beyond what was contemplated by the enabling provision in section 65(1) of the 1960 Constitution, "because they were a perversion of power." He pointed out that "with the experience of the perversions of 1962 in mind, section 305 of the 1999 Constitution (section 265, 1979 Constitution) gives the Federal Government no emergency powers, legislative or executive, exercisable during a state of emergency declared under its provisions." The senior advocate described the suspension of Dariye, his deputy and the State House of Assembly by Obasanjo and their temporary replacement with an Administrator as "the greatest and most brazen illegality committed by any government in the country, colonial, military or civilian."   =============================================================================   Copyright © 2004 This Day. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). =============================================================================