Urhobo Historical Society


Illegality and Unconstitutionality of President Olusegun Obasanjo’s Declarartion of Emergency and Suspension of the Governor and Parliament of Plateau State

 

By Chief FRA Williams


The major topic upon which I intend to address is the unconstitutionality and illegality of suspending the office of the Governor of a State or of suspending the House of Assembly of the State. There is no provision contained in any part of our Constitution which confers such a power on the President. It is a contradiction of all known principles of true federation operating in a democratic society. The Governor is elected the people of the state. So are the members of the House of Assembly. It was a recognition of these facts that informed the provisions inserted in our Constitution relating to the exercise of emergency powers.

You will find that under the provisions contained in Section 11 of our Constitution, the power to make laws with respect to public safety and public order vest concurrently in both the National Assembly and the House of Assembly of the State. It follows from this that executive powers with respect to these matters also vest concurrently in both the Federal Government and the State Government.

In other words, it is very important to note that public safety and public order is the joint or concurrent responsibility of both Governments. It follows from this that if there is an actual breakdown of public safety and public order, the responsibility for blame (if any) must fall more on the Federal Government than on the State Government concerned. And why should that not be so when the Federal Government controls all the Armed Forces, the Police and State security agencies.

And why should the members of the State Assembly for whom the people of
Plateau State voted to make laws for the peace, order and good government be suspended? What is it suggested they should have done which they failed to do? Any way, why did the National Assembly who also had concurrent legislative power over the matter not enact any law which they thought the State Assembly failed to enact?

When it comes to the exercise of executive powers with respect to public safety and public order, Mr. President has much larger powers and the means for enforcing them than a State Governor.  I must not leave the issue of the joint responsibility of the Federal and State Government without saying a few words about the provisions contained in The Public Order Act, Cap. 382 Laws of the Federation.

It is very surprising that the learned gentlemen who were responsible for inserting this enactment in the Laws of the federation, completely overlooked the judgement of the Supreme Court in the case of Attorney General of Ogun State & others (1982) 3 NCLR 583; 1982 13 NSCC 1. In that case all the justices of the Supreme Court held that it is unconstitutional to confer functions on officers of a State (such as the Governor or the State Attorney General).

If those responsible for inserting the provisions contained in the Public Order Act had paid due attention to the decision of the Supreme Court just mentioned the functions purportedly conferred on the State Governor in relation to public meetings and public processions would have been conferred on the Commissioner of Police for the State.

It is therefore true to say that what has happened is that by maintaining on our Statute Book the present Public Order Act the Federal Government has abdicated part of its constitutional responsibility for public order and purported to transfer that responsibility to the State Governor by an unconstitutional enactment. There can be no doubt that the nation needs firm guidance in dealing with this particular matter and that the Federal Government owes it a duty to ensure that the Public Order Act is revised so as to :

_ be in line with the decision of the Supreme Court in the case cited above

_ take account of the role which a State Governor is required to play in discharging his own constitutional responsibility in the maintenance of public order within the State

_ ensure that the citizens' right to freedom of assembly and freedom of expression is preserved.

It is important to observe that one of the situations which must exist before the President can proclaim a state of emergency is "actual breakdown of public safety and public order" or a clear and present danger of such breakdown. Our Constitution recognizes and takes account of the fact that the breakdown envisaged may affect

_ the entire Federation

_  a part only of the Federation

or _  only one State of the Federation."

Common sense tells us that in cases (a) or (b) no one State can be expected to take any action. Only the Federation can take action. If we look at the action of Mr. President, no one can doubt that only one State of the Federation is affected. At any rate he has proclaimed a state of emergency only in one State.

In my humble opinion, where you have a case in which the situation which led to the proclamation of a state of emergency is limited to the boundaries of a single state then due regard must be paid to the provisions contained in subsection (4) of Section 305 of the Constitution. The section reads as follows:

The Governor of a State may, with the sanction of a resolution supported by twothirds 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 (31(c), (d) and (e) of this section and such situation does not extend beyond the boundaries of the State. I doubt whether the President has power to declare a state of emergency in the situation envisaged without the participation of the Governor and the House of Assembly of Plateau State.


May 22, 2004

 


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