There is nothing more frustrating for Nigerians right now than watching
President Goodluck Jonathan make a hash of the national security situation,
especially with his handling of the Boko Haram insurgency. His latest
gimmick of declaring a state of emergency in parts of some states in the
North is another shambolic response to a situation demanding more robust,
honest and well-considered action. It would seem that all we’ve got after
the latest round of bloodletting is another emission of hot fumes from the
presidential Olympus!
First, the President declares a state of emergency in 15 Local Government
Areas across 4 states. Why such piecemeal approach this late in the day?
Why, when these are not the only Local Government Areas or States where
there have been incidences of violence and terrorist activities? What
criteria did the President adopt to make this declaration?
Secondly, what does this declaration mean in concrete terms? I mean, this
is the first time the President would be making a declaration that isn’t
state-wide in each case, so what happens to civil administrations and civil
liberties in these Local Government Areas, especially as it would seem the
declaration makes no provision for any type of change in civil
administration? Does the declaration only mean the deployment of law
enforcement agencies in these areas? If so, what has prevented the
deployment before now? In essence, what is the purpose of the declaration
of a state of emergency if all it means is the deployment of law
enforcement agents?
Thirdly, the President says the temporary closure of the borders between
Nigeria, Niger and Chad is “part of the overall strategy to overcome the
current security challenges”, but how? If the idea is to stop terrorists
crisscrossing borders, it does not help that not all the Local Government
Areas affected contiguous to the land borders with these countries are
under the state of emergency, thus still giving terrorists free movement
across borders elsewhere. Or does singling out of Local Government Areas in
Bornu, Yobe, Plateau and Niger while ignoring the fact that Bauchi, Jigawa,
Gombe, Adamawa, Kaduna and Kano have been hotbeds of terrorism as well not
undermine the whole strategy?
What this type of piecemeal and half-hearted declaration of state of
emergency does is to disperse and germinate the rebellion further and make
it difficult for newly affected areas to cope with it, especially as there
is an obvious lack of overarching security strategy. I mean, telling
Nigerians on the last day of 2011 that the presidency is only now just
thinking of setting up “a special force unit within the Armed Forces, with
dedicated counter terrorism responsibilities” is alarming! Why has this not
been done all these years considering we have had problems with terrorism,
even long before the Boko Haram insurgency reared its head?
Lastly, the President’s declaration may have breached the provisions of
Section 305 of the Constitution of the Federal Republic of Nigeria (1999)
dealing with procedure for a declaration of a state of emergency. The
President says he is issuing the proclamation under Section 305 (1) of the
Constitution which states: “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”. This means the President cannot
just wake up and declare a state of emergency based on this provision as
President Jonathan has done, because activating this provision is subject
to other provisions of the Constitution, all of which are clearly stated in
Section 305. Section 305 (2) makes clear that an announcement isn’t the
first part of the process, instead the President will first have to publish
this in the Official Gazette of the Government of the Federation, which
then becomes the instrument of the Proclamation. The Constitution did not
say a mere announcement is sufficient.
Again, the President does not just get to gazette this and proclaim, except
certain conditions are met. In other words, there must be a condition
precedent. Section 305 (3)(a) -(g) lists these conditions, any of which
would be sufficient to give the President a reason to begin the process of
the declaration of a state of emergency:
The President shall have power to issue a Proclamation of a state of
emergency only when –
(a) the Federation is at war;
(b) the Federation is in imminent danger of invasion or involvement in a
state of war;
(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 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 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 this section.
Section 305(4) referred to above makes clear that the process of
declaration begins democratically in the State with the Governor putting
this before the House of Assembly, which must sanction it with a two-thirds
majority vote. According to the provision: “The Governor of a State may,
with the sanction of a resolution supported by two-thirds majority of the
House of Assembly, request the President to issue a Proclamation of a state
of emergency in the State when there is in existence within the State any
of the situations specified in subsection (3) (c), (d) and (e) of this
section and such situation does not extend beyond the boundaries of the
State”. To make it clear that the President cannot just act on his own
without the process of Section 305(4) having been first explored, Section
305(5) declares: “The President shall not issue a Proclamation of a state
of emergency in any case to which the provisions of subsection (4) of this
section apply unless the Governor of the State fails within a reasonable
time to make a request to the President to issue such Proclamation”.
However, there are those who would argue that Section 305 (4) & (5) cannot
apply here, because the situation has extended beyond the boundaries of one
state. Even if we concede that (because the Constitution is silent in a
situation where the problem is in more than one state), we are still left
with the considerable problem of the unconstitutionality of a mere
announcement masquerading as a Proclamation when this is yet to be in the
Official Gazette or passed by a resolution of the National Assembly. So, in
essence what the President has done now is effectively a nullity until the
National Assembly reconvenes on 3 January, 2012 and by virtue of Section
305(6)(b), if they reconvene then, they will have to pass a resolution
approving the Proclamation within two days. If they fail to do this, this
proclamation will have no effect.
Personally, I wouldn’t want to make too much of an issue of these
procedural failings by the President. He can quickly get these corrected
before the National Assembly reconvenes by putting this in the Official
Gazette and passing it to the National Assembly as required by the
Constitution. Of course, there are those who would argue that the President
hasn’t said his Proclamation is
effective yet and that I may be jumping the
gun by accusing him of unconstitutionality. To these persons, I once again
direct to the provisions of Section 305 (1) & (2). The Constitution is
clear under what instrument and through what publication this type of news
ought to reach the National Assembly and Nigerians. It is not only by a
mere announcement. The Constitution is also clear that the President should
“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 Speaker of the House of Representatives, each of whom shall forthwith
convene or arrange for a meeting of the House of which he is President or
Speaker, as the case may be, to consider the situation and decide whether
or not to pass a resolution approving the Proclamation”. Making such a
Proclamation when the National Assembly is on recess means they cannot be
dealing with this immediately, which calls to question why such a
Proclamation is being made now. Why didn’t the President wait until 3
January, 2012 and simply follow the Constitution and pass it to the
National Assembly? What exactly does he aim to achieve by proclaiming it
now?
At any rate, I find all of this a charade. In July 2011, some of us got
together and sent a Petition to the President, making certain proposals to
deal with the issue.
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http://www.petitions24.com/petition_by_concerned_nigerians_to_the_president_on_boko_haram
