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EXPLAINER: What to know about Buhari’s limits in declaration of State of Emergency

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In spite of denials by the Nigerian government to declare a State of Emergency in Anambra State over rising insecurity, many have continued to ask what this could mean.

Ripples Nigeria had, last Wednesday, reported the Attorney-General of the Federation and Minister of Justice, Abubakar Malami, as saying that the federal government was concerned about the growing violence in Anambra, with just 31 days to the state governorship election.

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Malami pointedly stated that the government was determined to ensure that the November 6 gubernatorial polls in the state were hitch-free, saying the possibility of a declaration of a state of emergency could not be ruled out “where it is established, in essence, that there is a failure on the part of the state government to ensure the sanctity of security of lives, properties, and a democratic order.”

Meanwhile, this came after the Independent National Electoral Commission (INEC) on Tuesday, warned that the insecurity in Anambra could harm the governorship poll if not checked.

The INEC Chairman, Prof. Mahmood Yakubu, while speaking at an emergency meeting of the Inter-Agency Consultative Committee on Election Security (ICCES), had also said the insecurity in Anambra was a major concern during its last quarterly meeting in September, noting that the situation has deteriorated since then, as many innocent lives have been lost and property destroyed.

In this report, we x-ray the term “state of emergency” and what may likely happen in Anambra if it is declared in the state.

What is a State of Emergency?

The 1999 Constitution does not expressly state the meaning of a state of emergency. However, its meaning can be gleaned from a combined reading of some sections of the Constitution.

Particularly, section 45(3) stated: “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 the exercise of the powers conferred on him under section 305 of this Constitution.”

However, Section 305 did not expressly spell out the meaning of the expression ‘State of Emergency’. The section only quite extensively stated the procedure for the declaration, conditions that will engender such a declaration, when it will cease to have an effect, and the role of the National Assembly, the governors of the states and its legislative house in the process.

Precedents in Nigeria

On the 14th of May, 2013, President Goodluck Ebelle Jonathan in a nationwide broadcast announced the ‘declaration’ of state of emergency in three northern states of Adamawa, Borno and Yobe states, leading to an upsurge of security agents and activities in the affected states, seeking to arrest the dire security situations.

Ever since, there has been a deluge of legal discourse and public commentaries over the legality and constitutionality of the announcement itself, its declaration, level of implementation and implications on the continuous existence on state government functionaries like the governors, and their deputies, as well as the principal officers and members of the various houses of assembly of the affected states.

Unlike Jonathan’s declaration, the declarations in 1962 in the then Western region by the Government of Sir Abubakar TafawaBalewa and the subsequent declaration by President Olusegun Obasanjo awkwardly suspended and removed from office the regional and state government functionaries.

On Tuesday, May 18, 2004, Obasanjo declared a state of emergency in the troubled central state of Plateau, saying it was in a bid to halt religious and ethnic bloodletting that he said posed a great threat to national unity.

He sacked the then governor of the state, Joshua Dariye, and dissolved the state legislature, saying elected officials had “wittingly and unwittingly encouraged acts that subverted peace and tranquility”, installing retired Maj-Gen Chris Ali, who served in the Nigerian army under previous junta rulers to replace Dariye.

Read also: Buhari against state of emergency in Anambra, Obiano says after meeting with President

Also, on Thursday, October 19, 2006, Obasanjo declared another state of emergency in Ekiti State, following what he called the unconstitutional impeachment of the governor over corruption charges.

The then president also swore in a retired major-general to run the affairs of the south-western state for six months, saying the move was to prevent Ekiti from descending into anarchy and threatening security in the country.

But in his case, President Jonathan remarkably left the state functionaries in the affected states to continue in office, unlike his predecessors.

Meanwhile, Section 305 of the 1999 Constitution (as amended) clearly provides the conditions that must exist before a proclamation of a state of emergency shall be made by the President.

Constitutional conditions for the declaration of a State of Emergency
* The federation is at war.
* The federation is in imminent danger of invasion or involvement in a state of war.
* 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.
* 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.
* 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.
* There is any other public danger which constitutes a threat to the existence of the federation.
* The president receives a request to do so following the provisions of subsection (4) of this section.

Procedure for the declaration of a State of Emergency

(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 Speaker of the House of Representative, 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.

Role of the National Assembly, State governors and legislative houses

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According to the provisions of section 305(4) of the Constitution, the Governor of a state may, with the sanction of a resolution supported by two-third majority of the House of Assembly, request the President to issue a proclamation of a state of emergency in the state where there is in existence any of the situations specified in subsection (3) (c), (d) and (e) of section 305 and such a situation does not extend beyond the boundaries of the state.

From the clear wording of this section, there are basically two hurdles which the president must cross in order for there to be in place a legally valid declaration of a state of emergency.

The first is the issuance of a proclamation of a state of emergency by an instrument published in the official gazette of the government of the federation. Thereafter the second hurdle is the immediate transmission of copies of the official gazette containing the proclamation including details of the emergency to the National Assembly for approval which shall then consider the situation and decide whether or not to pass a resolution approving same. Until these two hurdles are effectively crossed, there cannot be a valid declaration of a state of emergency.

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