Nigeria And Politics Of Emergency Rule

Ajayi Olatunji Olowo

Ajayi.olowo@buckingham.ac.uk

The Nigerian constitutional democracy, tailored to a large extent after the American Presidential system of government, supposedly operates within a federal structure of a quasi-autonomous 36 states, with a Federal Capital Territory (FCT) having the status of a state and Federal Government at the centre. The 36 federating states and the FCT are as provided for under section 3 of the Nigerian 1999 constitution. Section 3 (6) provides for 768 Local Government Areas (LGA) in the 36 states and 6 Councils in the FCT, totalling 774 LGA nationwide.

As a nascent democracy coming after several years of military dictatorship, Nigeria has witnessed series of ethno-religious crisis and resource control agitations since 1999. In order to preserve the provisions of section

2 (1) of the constitution which states “Nigeria is an indivisible and indissoluble Sovereign State…” the Federal Government of Nigeria (FGN) has adopted series of pseudo-political measures to stabilise the polity. At first, it was a police action, which neutralise the Odi community in the Niger Delta region. Following that was a military operation to quell intra-community crisis in Benue State. And in Plateau state in 2004, the style changed to a declaration of a state of emergency in the wake of sectarian killings with ethno-religious colourations. Then came the overt militant insurgency in the Niger Delta anchored on agitations for resource control. The Joint military operations thereof have continuously claimed many lives and witnessed kidnappings, inevitable reduction in export of crude oil by more than 25% and continually threatened the stability of the Nigerian nation state.

The extra political measures taken in the specific circumstances could not be manifestly deemed to have accomplished the desired political milieu required for Nigeria to harness her enormous human and natural resources towards enhancing her ascribed giant status in the comity of nations. It is in the light of the foregoing expositions that it has become imperative to critically examine the efficacy of the state of emergency that has just been declared on Ekiti State in the early hours of Thursday, 19 October 2006. In a broadcast to the nation, the President and Commander in Chief, Chief Olusegun Obasanjo, in pursuant to the provisions of section 305 of the constitution declared an emergency rule for 6 months and appointed Major General Adetunji Olurin (rtd) to take over the administration of the state as Administrator.

The obvious issue for consideration at this juncture is whether the proclamation of emergency rule is a justification, an excuse or a respite for political stability and peace in the relatively calm Ekiti State populated by highly principled, educated and forthright citizenry but which has been plunged into a contrived semblance of a political logjam since 29 September 2006 (when the recently impeached Governor Fayose and his deputy Mrs Abiodun Olujimi commenced). For a state of emergency to manifest, the powers vested in the President under section 305 (3) of the constitution have to be invoked. The section provides thus:

“The President shall 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 an 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 of 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 provision of subsection (4) of this section.

The provisions of section 305 (4) would only be invoked if the Governor of a state, with the sanction of a resolution supported by two-thirds majority of the House of Assembly (HOA), so invites Mr. President to make such a proclamation.

In the light of the foregoing, it is arguable that the situation in Ekiti State up till the early morning of Thursday, 19 October 2006 might be far from fulfilling the requirements of section 305 (3). Even though there has been a contrived political crisis since Mr. Fayose and Mrs Olujimi were impeached on Monday 16 October 2006, there is nothing practically, inherently or constructively on ground to indicate that there is any overt calamity looming over the state or its neighbourhood. The only dramatic situation that arose and remains curious was the sudden reappearance of the impeached deputy governor on Tuesday, 17 October 2006 with her full security details and additional reinforcement. Nonetheless the provocative stance of her reappearance and outburst, the lady (who came into limelight as deputy governor in December 2005 as the third deputy governor to Fayose in three years) was largely ignored by the House of Assembly and notable functionaries of the state, including workers union who had pledged their loyalty to the Acting Governor – Chief Friday Aderemi who expectedly should hold forth up till 16 January 2006 when a bye election must have been held in accordance with section 191 (2) of the constitution. Even though some functionaries of the FGN attempted to give credence to the hazy moves of Mrs Abiodun Olujimi, her situation particularly appear oxymoronic because she was duly represented to defend herself before the impeachment panel nonetheless the arguable hyper-legislative process involved. When her defence failed and she was impeached alongside Mr. Fayose on Monday 16 October 2006 (contrary to her expectation and lobby which was why she returned to Ado-Ekiti before the House of Assembly adopted the impeachment panel’s report) she headed for the court to challenge her impeachment while citing the Acting Governor, Acting Chief Justice of the State and HOA as defendants. When the case came up for hearing on Wednesday 18 October 2006, the court presided over by Mr. Justice E. Kowe adjourned the case to 07 November 2006 for further hearing with a preliminary order that the parties should maintain status quo till the next adjourned date.

If the interim ruling of the court is anything to go by, maintaining a status quo means the status quo of the parties as at the date the order was given not with any retroactive effect. The essence of an interim injunction is to prevent further aggravation of the situation in a manner capable of destroying the res (issue for determination) in the substantive suit – interpretatively meaning that the post of the Deputy Governor of the state should not necessarily be filled by another person before the final determination of the case in court.

Now that the issue before the court has been overtaken by the state of emergency, it is plausible to examine the practical implications of the interim ruling of the court. Regarding the impeached deputy governor there was no attributable status quo for her to maintain as at Wednesday, 18 October 2006 (other than that of an impeached deputy governor) because while there was an Acting Governor on ground, section 191 (2) under which the administration of the state was subsumed by the act of the HOA of 16 October 2006, made no provision for a deputy governor during the period of interregnum of 90 days during which a bye-election would have been held by the Independent National Electoral Commission (INEC) and all the over forty – six registered political parties would have been eligible to field candidates.

The proclamation of the state of emergency, apart from not being deemed to have fallen within the purview of section 305 (3) (4) in real terms, it appears a setback to the need to nurture a virile democratic culture. With the cases in court, it was expected that justice would have been allowed to run its full course, particularly as it turned out that there was no threat to peace in Ekiti State. The proclamation of the state of emergency has further whittled down the fragile capability of the judiciary to handle relevant novel challenge posed by the inherent management of discontent in our political setting. The argument would have been different if there were dangerous protests, warfare, militancy, killings, and maiming or wanton destruction of properties (or possibility of such vices) warranting the presumption of a lawless society. But none of such ugly index arose in Ekiti State despite the novel volatile political development. Ekiti people have all along demonstrated their resolve to remain peaceful nonetheless the provocative misdemeanour of the political class. Another disservice of the proclamation is that it would further hinder the opportunity to nurture the young constitution of the Federal Republic of Nigeria to a substantial virile instrument for safeguarding the political structure and entities. If the relevant stakeholders have not jumped the gun and by-passed the judiciary which remains the only institution that can could propose measures capable of being accepted as a fait accompli by all interested parties; the controversies trailing the peoples’ revolution in Ekiti State which arose sequel to extra-judicial and hype-legislative manoeuvre provoked by the lacuna in the constitution, would have been logically laid to rest by the court. The constitutional issues thrown up would have definitely reached the Supreme Court for final legal determination in contrast to the diverse personal legal opinions expressed by sundry eminent jurists/legal luminaries in the last couple of days. The pronouncement of the Supreme Court is crucial on the issues at stake and cannot and will not be obliterated by the proclamation of the state of emergency, which is an “anti-sally” to all tenets of democracy. This is where the views of the Nigerian Bar Association (NBA) that the Attorney General of the federation should have invoked the jurisdiction of the Supreme Court to interpret the relevant portions of the constitution (for example: sections. 188, 271, 291, 292 etc) which were directly linked to the political interregnum in Ekiti seems to be a ‘solomonic wisdom clarion call’. The proclamation of the state of emergency is not and cannot be an alternative to the judicial option.

General Adetunji Olurin (rtd), though an accomplished military man with wealth of experience in state administration, yet he is a stranger to the politics of Ekiti State and would not likely fair better than any military administrator in any spot across the world where the rule of law and democratic governance have been subjugated by military despotism. The new administrator foisted on Ekiti people by a contrived political machination and coercive power of state must be cautious to ensure that he does not burn his fingers by applying strict ‘Austinian’ legal sovereignty and command approach, that could entail brute force. Ekiti people are rugged, intelligent, highly educated and would resist any oppression as exhibited in their historic resolve which culminated in the ‘Kiriji’ war in the early 20^th century just as British colonialism was about to debut.

It is gratifying to note that all hope to salvage and preserve the democratic yearnings and aspirations of the Ekiti people cannot be deemed to have been totally foreclosed not until the two chambers of the National Assembly (NASS) exercise their power with the specified two-thirds majority resolution to approve or undo the proclamation in accordance with the provisions of section 305 (6) (b). The provisions state thus:

“A proclamation issued by the President shall cease…if it affects the Federation or any part thereof and within two days when the National Assembly is in session, or within ten days when not in session, after its publication, there is no resolution supported by two-thirds majority of all the members of each House of the National Assembly approving the Proclamation.”

The Ekiti experience is a golden opportunity for the NASS to assert its inherent authority as accorded by law and as the utmost representatives of the Nigerian people at all levels of the political structure. Whichever way the NASS exercises its powers would be for posterity to judge and would serve a signal for the nature of political developments to be expected as the 2007 general elections draw nearer without any visible presidential candidates.

If the option of a state of emergency proclaimed on Plateau State in 2004 has not restored peace thereof, and it was deemed inapplicable in Anambra State despite the wanton destruction of lives and property in the dark days when former Governor Ngige was in the eyes of the storm; and played down as an option for the grandiose militancy drive in the Niger Delta capable of upsetting the national political calculus; it is doubtful if the latest application of the extraneous measure in Ekiti is meant to serve any useful socio-political and economic end. It might be nothing other than an aberration for yet unknown political moves. Apart from the measure being a denigration of the principle of federalism on which the fragile Nigerian Nation State is anchored, it is predictable that the emergency rule would further deepen rather than heal the political wounds inflicted on Ekiti State in particular and Nigeria at large. And if the emergency rule is continually deplored at every slightest novel political development, there is the possibility of democracy being undermined covertly or overtly.

Ajayi Olatunji Olowo writes from the School of Law, University of Buckingham in England.