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The Reality And Constitutionality of the Plateau Proclamation

Vanguard (Lagos)
OPINION
May 28, 2004
Posted to the web May 28, 2004

By Femi Lanlehin

Many articles written and comments passed in respect of the proclamation of a
state of emergency in Plateau State were either in support or against the said
proclamation.
Some of the articles and comments dwelt essentially on the facts and happenings
in Plateau State while others concentrated in the main on the legality or
constitutionality or otherwise of the proclamation.
To get a balanced view and understanding of the Plateau situation both in law
and in fact, it is important that a holistic, historical and national view is
taken of the remote and immediate causes and consequences.
In the not too distant past, hitherto repressed and controlled Ethno-Religious,
Chieftancy, Land and Communal differences and animosity found their way to the
fore with the resultant violence, blood letting and massive destruction of
lives and properties.
This was the case in, Odi in Bayelsa State, the Ijaw versus Urhobo clashes in
the Niger Delta, Urhobo versus Itshekiri clashes in Delta State, the Irawo
township communal clashes in Oyo State, the recurrent ethno-religious clashes
in Kano and Kaduna States, the communal clashes in Benue, Nassarawa and Taraba
States, the land boundary clashes in Anambra and Imo States, the OPC versus
Hausa community and intra OPC clashes in Lagos State and many more in other
states.
The "solution" to these clashes takes almost the same pattern:
i. A visit is made to the scene or area of the clash by the appropriate state
or federal authority.
ii. Meetings or consultations are held with the traditional rulers, elders,
religious, community, opinion and in some instances political leaders in the
area.
iii. A commission of inquiry is set up to look in to the remote and immediate
cause/s of the clash and solutions proffered thereto.
iv. The committee which might be administrative or judicial sits for a period
of time, takes evidence from concerned and or interested persons, writes its
report and submits same to the appointing authority in a blaze of publicity and
fanfare.
v. The appointing authority/government receives the report, studies same and
comes out a white paper in respect thereto. The white paper may or may not be
made public. The accepted recommendations as contained in the white paper may
or may not be implemented.
Unfortunately, in most cases, there is a recurrence of the clash and the cycle
of a visit to the scene of clash to the drawing up of a white paper is
repeated. It has been a vicious cycle.
In the case of the Plateau crisis, which is the subject of the proclamation of
a state of emergency, the history of the clashes during the present democratic
dispensation, dates back to 2001. In Jos, there were violent clashes and many
lives and properties were lost. The President and Commander-in-Chief of the
Armed Forces of the Federation visited the scene of the clashes and went
through most of the procedure as stated above.
Similar bloody and destructive clashes took place in other Local Governments of
Plateau State like Mangu, Mikang, Pankshin, Bassa, Kanam and many more between
2001 and 2003 culminating in the present clashes in 2004 in Yelwa, Shendam,
Wase and Langtang with a clear and present danger of an actual break-down of
public order and public safety in other parts of the state.
To compound the situation, the governor was unwilling and unable to stem the
violence and in fact was purported to be a part of the problem. The breakdown
of public order and public safety in these three local governments mentioned
above in fact reverberated in other states of the federation particularly Kano
resulting in loss of lives and properties.
Now, what are the options open to the Presiden? Does he visit the scene of the
clashes, as he had done on many occasions, go through the usual palliatives in
addressing the situation as earlier enumerated and go to sleep, or does he
review the whole situation in the context of past occurrences and the usual
"solutions" preferred thereto. Should the President look at the effectiveness
and permanence of the solutions hitherto applied or also consider the
possibility of applying a new solution which would be firm, bold legal and
constitutional.
Mr. President in exercising an option decided to take an action that is firm,
bold legal and constitutional. He decided to exercise his power to proclaim a
state of emergency under S.305 of the 1999 Constitution in Plateau State and
asked for the concurrence of the National Assembly.
What are these powers under S.305 of the 1999 Constitution.
S. 305 (1) "Subject to the provisions of this Constitution, the President may
by instrument published in the official Gazette of the Government of the
federation issue a proclamation of a state of emergency in the federation or
any part thereof".
(2) "The President shall immediately after the publication, transmit copies of
the official Gazette of the Government of the federation containing the
proclamation including the details of the emergency to the President of the
Senate and the Dpeaker of the House of Representatives................"
(3) The President shall have power to issue a proclamation of a state of
emergency only when
(a).........................................
(b).........................................
(c) 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 (underlining mine) to restore peace and security.
(d) There is a clear and present danger of an actual breakdown of public order
and public safety in the federation or any part thereof requiring extraordinary
measures (underlining mine) to avert such danger.
(6) A proclamation issued by the President under this section shall cease to
have effect if:-
(a) .......................................
(b) "... there is no resolution supported by two-third majority of all the
members of each House of the National Assembly approving the proclamation.
Judging from the situation in Yelwa, Shendam, Langtang and Wase local
governments in Plateau State, there is no doubt whatsoever that there is a
breakdown of law and order and there is a real and imminent danger of a
breakdown of law and order in other local governments of the state particularly
the ones that had experienced such breakdowns hitherto and for the same reason
(s) or nearly the same reason(s) as adduced for the clashes in the three local
governments where violence reigns presently.
The President in proclaiming the state of emergency suspended the governor and
deputy governor from office for the duration of the state of emergency i.e. six
months; and appointed an administrator.
The president also deemed as incongruous the functioning of the State Assembly
during the duration of the state of emergency and therefore suspended it for
the same period.
The National Assembly concurred with the issuance of a proclamation of a state
of emergency with the details and extraordinary measures thereof by the
President, subject only to an amendment effected thereto to wit: that laws for
the state would be made by the National Assembly as opposed to their being made
by the President - in - Council.
The big question is; are the President and the National Assembly's actions in
consonance with the provisions of the 1999 Constitution particularly S.305
supra?
It is submitted unequivocally that S.305 of the 1999 Constitution grants the
President the powers he exercised in issuing the Plateau proclamation?
Being an emergency situation (which situation has been so recognized as such by
the President and the National Assembly), the Constitution permits in S.305 (3)
(c) & (d) the issuance of a proclamation of a state of emergency:-
(c) "... to such extent as to require extraordinary measures to restore peace
and security "; and
(d) "...requiringextraordinary measures to avert such danger".
Cognisance must be taken of the fact that there exists an emergency to which
the Constitution recognizes the need to exercise extraordinary power which
includes the suspension of the ordinary structures of state, be it executive or
legislative.
S. 305 of the 1999 Constitution is similar to the provision of S. 65 of the
1960 Federal Constitution. Pursuant to the said section 65, the Federal
Parliament declared a state of emergency in Western Region of Nigeria,
suspending the Regional Governor, Premier, Ministers and House of Assembly and
appointed an Administrator.
The Constitutionality of Mr. President's action in declaring a state of
emergency in Plateau State finds judicial approval in the judicial
interpretation given to the action taken under said S.65 of the 1960 Federal
Constitution in the case of:
F. R. A. Williams V. Dr. M. A. Majekodunmi ( Case No. 2)
Reported in 1962 volume 1 All Nigeria Law Report at page 328.
The Federal Supreme Court presided over by Adetokunbo Ademola, C. J. F, sitting
with Brett, J. I. C. Taylor and Bairamian held that:
(i) Whether a state of emergency exists is a matter for Parliament and not for
the courts, to decide.
(ii) Once a state of emergency is declared, it is the duty of the government to
look after the peace and security of the state:
The Federal Supreme Court also in the case of:
Alhaji D. S. Adegbenro V. Attorney -- General of the Federation & 2 others
1962 1 A.N.L.R at page 338 held that the proclamation of a state of emergency
by Parliament suspending the offices of the Plaintiff as Premier was valid.
To all intent and purposes section 65 of the 1960 Constitution and S. 305 of
the 1999 Constitution are similar. The only difference lies in the fact that
under the 1999 Constitution the concurrence of both the President and the
National Assembly is needed before the proclamation of an emergency can take
effect whereas under the 1960 Constitution it is only a resolution of the
Federal Parliament that is needed. This is however understandable because the
1960 Constitution prescribes a parliamentary system of government.
The suspension of the Governor, Deputy Governor and the state House of Assembly
and the appointment of Major -- General Chris Alli (rtd) as the Administrator
of the state is constitutionally in order.
Much as it would have been desirable to appoint a "full fledged" civilian as an
administrator in the spirit of the time, suffice it to say that it is important
to appoint a person who is neutral and far removed from the area of conflict
but at the same time has a very good working knowledge of the area and its
peoples. Nobody meets these criteria more than the appointed administrator who
was once a military administrator of Plateau State.
Democracy is a very desirable and all encompassing system of government. It
however calls for discipline and mass participation where comments and
criticisms should be made in good faith, in the best interest of the nation and
towards its growth and development.
Comments about the state of emergency declared in Western Region of Nigeria in
1962 as being responsible for the truncation of the First Republic is not true.
The said state of emergency in Western Region lasted for seven months ending in
December 1962. There is no gain saying the fact that it was the highly disputed
result of the 1964 general elections and the attendant violence that followed
that is responsible for the military take - over in January 1966 and the
truncation of the First Republic.
It has been postulated in some quarters that an elected state governor by
virtue of a proclamation of a state of emergency under S. 305 cannot be removed
as he is protected by S. 11 (4) of the 1999 Constitution neither can the House
of Assembly be deemed to be unable to perform its functions so long as the
House of Assembly can hold its meeting and transact business.
If the above position is correct, which I submit is not, wherein lies the
ability or power to remedy the situation of a breakdown of law and order if the
governor and the state Assembly that were unable to address the lawlessness are
left in place.
A state of emergency as envisaged under S. 305 does not grant the power to
remove a governor but grants the power to suspend him for a period of six
months in the first instance.
The said suspension might not even last the said period, as the President or
National Assembly can revoke the proclamation of a state of emergency by a
simple majority, if the situation normalises sufficiently enough.
All hands must be on deck to ensure that ethno-religious, communal, militia and
land boundary clashes do not fester and allow the enemies of democracy to find
excuses to truncate our nascent democracy.
Chief Femi Lanlehin, Legal Practitioner, wrote in from Ibadan.

   

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