[allAfrica.com] [celtel.com] State of Emergency in Plateau Daily Champion (Lagos) COLUMN July 2, 2004 Posted to the web July 2, 2004 By OSUAGWU UGOCHUKWU Lagos PRESIDENT Olusegun Obasanjo has eventually gone stern. Without batting an eyelid, he put in abeyance the Government of Plateau State on May 18, 2004. The President, in one fell swoop, dispatched Governor Joshua Dariye, his Deputy, Mr. Michael Botmang and the State House of Assembly on a six-month suspension for what he termed gross incompetence in managing religious crisis and sectarian violence in the state. The proclamation caused a stir and consternation to many people who are already asking questions about its implications for democracy and inter-ethnic relations in the country. As usual, there has been a mixture and cacophony of voices as to the constitutionality or otherwise of the president's action. Certainly, a state of emergency is only a remedial measure enthrusted in the constitution to deal with peculiar situations that may endanger the security of the nation or any part of it. The 1999 Constitution envisages this when there is a breakdown of public order and security of the Federation or any part thereof that may threaten the nation. It, therefore, provides in section 305 for the proclamation of a state of emergency to deal with such situation. The President under this section, has the unfettered and overreaching power to issue the proclamations and must submit it to the National Assembly for ratification subsequently. The issue, therefore, is whether the situations envisaged by the constitution in Section 305(3) occurred in Plateau State. There is no doubt that since September 2001, there has been internecine ethnic and religious crises in Plateau State. There is no doubt that since September 2001, there has been internecine ethnic and religious crises in Plateau State, resulting in loss of property and lives. This reached an ugly point in the month of April and May, this year, as the state was plunged into anarchy with law and order breaking down. In the circumstance, the president appears to have, so far, acted in accordance with the provision of the constitution, i.e Section 305(1). There is, however, one major constitutional issue that arose after the president's declaration of a state of emergency in Plateau State. This has to do with the suspension of virtually all the elected officers and functionaries in the state. The question that is left unanswered now is, where did the president get the authority to suspend these elected officers? Under the 1999 Constitution, a governor and his deputy can only be removed or cease to hold office through the provision of sections 188 and 189 of the constitution. By the combined provision of these two sections, the governor and his deputy can only be removed from, or cease to hold, offices by reason of impeachment, death, resignation, or permanent incapacity. Also, by section 105, 1999 Constitution. "A house of Assembly shall stand dissolved at the expiration of a period of four years, commencing from the date of the first sitting of the House". Again, there is no provision for the suspension of the House of any atate whether by a governor of a state or the president. While section 11(1) of the constitution allows the National Assembly to act as a law making body during a state of deadlock in the House of Assembly, i.e. the House can no more conduct business of the day, as if they were laws made by the House of Assembly of the state, section 11(4) of the same constitution precludes the National Assembly from assuming the power to remove the governor and his deputy of the state from their offices. The removal of the governor of Plateau State and his deputy and the abolition of the democratic institution in the state may have been done in contravention of the supreme laws of the land, i.e. the constitution. Section 305(1) of the constitution which the president relied on to declare the state of emergency did not authorise or empower him to suspend or remove the governor and his deputy from their offices. It is my argument, and this could be challenged in court, that the president, though has power to declare a state of emergency in the state, he was not so empowered to suspend or remove the governor, his deputy and elected members of the State Assembly. Section 188 (1) of the constitution states clearly the way and only manner a governor and his deputy could be removed, thus "the governor or deputy governor of a state may be removed from office in accordance with the provision of this section" (emphasis mine). Thus, in declaring a state of emergency ,the president was bound to conform with this provision. In fact, section 305(1), which the president relied on in declaring a state of emergency in Plateau State made this mandatory. It states thus: "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". The phrase "subject to the provisions of this constitution" mandates the president to observe other sections of the constitution while exercising his power to declare a state of emergency. But he instead, declared a state of emergency without due observance to other provisions of the constitution such as sections 188, 189, 105, 11(4) and section 191(2) of the constitution. It is a trite law of statutory construction that the express mention of something implies the exclusion of the other. Hence, expressio unius est exclusio alterius. Therefore, since the Constitution has expressly stated how a governor, his deputy and the House of Assembly members can be removed from their elected offices, the president acted extra legem and exproprio motu, when he decimated the entire democratic institutions save the Local Councils in Plateau State. It appears that everybody erroneously hold the view that the power to declare a state of emergency encompasses the power to sack all the democratic institutions in that state. The mere fact that this same action, taken in Western Region in 1962 where elected officers of the AG were removed from office was never challenged, does not in any way become a precedent for the view being now myopically held that once a state of emergency is declared in any state, all the elected officers are to be removed. You cannot use a political convention or norm to circumscribe the express and unambiguous provision of the constitution. Even where the constitution is seen to have a lacuna, it still remains a valid document to be followed ex rigore Juris and nothing shall be added or brought in to fill up the lacuna unless and until the said constitution is amended. In conclusion, therefore, section 305(1), which confers the president with the power to declare a state of emergency does not confer him with the power to sack the governor, his deputy and the State Assembly. Since the removal of the governor, his deputy and State Assembly overlooked sections 188, 189, 105 (1), 119(2) and 11(4) of the constitution, it is unconstitutional, illegal and null and void.   ===============================================================================  Copyright © 2004 Daily Champion. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). ===============================================================================