ANYIM VERSUS EGWU AND THE

ANYIM VERSUS EGWU AND THE ‘STATE OF EMERGENCY’

This short piece is in response to the recent reported toying by the National Assembly of Nigeria with the idea of declaring a state of emergency over Ebonyi State following the messy crisis generated by the unfortunate political disagreement between the Senate President, Chief Anyim Pius Anyim and the governor of his home state, Ebonyi, Chief Sam Egwu. Whatever may be the merits of their contentions, I think it is of utmost importance that the nation knows about both the jurisprudential and political implications of bringing into being such a constitutional state of affairs as well as an attempt at situating the whole process within the critical national objective of nurturing and preserving the fledging democracy in the country.

Given the notoriously unenviable constitutional history of Nigeria, it should be assumed that the provenance and, indeed, the province of emergency powers would be familiar to most of us. Lest we forget, until the 29^th of May 1999, Nigeria was, for all intents and purposes, under a state of emergency. The only constitutional justification for the emergence in the country of dictatorial military regimes in the past was that some anarchic soldiers were able to forcefully displace the nation’s fundamental laws and the constitutions and, in their places, instituted regimes not contemplated by the pre-existing legal order. In other words, all dictatorial governments, particularly the military variety, can only be sustained under a theory of emergency powers. The military usurpers traditionally justify their incursion into the political arena by painting pictures of a collapsed constitutional order, totally paralysed political machinery and a frustrated society. Since they do not have the requisite constitutional authorisation to govern, the declaration of a state of emergency was therefore a logical necessity for the ‘validation’ of the unlawful seizure of power. In one word, an emergency governments and a democracy are mutually exclusive, just like night and day.

For example, the colonial administration which was administered by the British over Nigeria, up till the 1^st of October 1960 was, at best, a form of emergency government to the extend that, irrespective of what the Nigerian colony desired, the preferences and conveniences of the metropolitan authorities in far away UK were paramount and ultimately prevailed. We have seen enough of self-imposed emergency rule in Nigeria that not much analysis is required to make this point. As a matter of fact, the attempt to resort to emergency powers in the aftermath of the Western Regional crises in the early sixties, more than anything else, precipitated the breakdown of democratic constitutionalism in Nigeria which the military usurpers cashed on to illegally seize powers and they managed to perpetuate the phenomenon of ‘state of emergency ‘ as a ruse for the illegitimate plundering of the economy and weakening of the political institutions until the nation was practically wasted. The aftermath of that misrule has remained a scare that cannot easy be blotted out of the annals of Nigeria and from the consciousness of Nigerians. The thirty-month bitter civil war and the subsequent destruction of the national spirit as well as the dilution of the mix of the cohesion of the Nigerian Union, are all the logical but negative dividends of the imposition of emergency jurisprudence on the body-polity. I hold it as a fundamental anchor for my constitutional philosophy that no undemocratic regime should be clothed with the toga of legitimacy and that time and circumstances do not alter the intrinsic illegality of such unconstitutional enterprise. And for that reason, inter alia, it is the fundamental right of every society to be governed by those who they have elected to do so and never by any other means, including the evoking of emergency powers.

That is why many of us were shocked to hear that some members of the National Assembly, the moral and institutional pillar of our constitutional democracy, wanted a state of emergency declared in some parts of the federation and were in fact about to do so but for the failure of the motion to pass due to the superior wisdom of the houses in their plenary capacities. What really must have gone wrong for men and women that were elected to defend and nourish our inchoate constitutional democracy to, for what ever reason and motive, opt to set the nation aflame just to make a political point. It is baffling, to say the least. The story is that the President of the Senate and the Governor of his home state, Ebonyi, are in a political tangle and each party is deploying all resources, diabolical and material, constitutional and unconstitutional, to undo the other. Is that why the nation as a whole must be destroyed? It is common knowledge that several parts of the country are currently experiencing varying forms of political irresponsibility. But they are no license for contemplating the imposition of states of emergency. What is the real meaning of abuse of power if this is not a perfect example? We may soon find ourselves declaring state of emergency to resolve matrimonial problems of powerful individuals. I do not have many problems watching the two of them fight themselves to the death because after they are done, I know the law of the land will surely take it course. My worry is the scary awareness that they now want to also destroy the very basis of the nation’s social order all in the guise of political gladiatoring.

Our concern should be in determining where did the idea of declaring a state of emergency originated from, and who the hell thought it was proper and indeed, possible, to deploy the legislative prerogative of the National Assembly into fighting private wars? It may be a moot point now demanding to know who were those anarchists who wanted this for Nigeria since the motion in question did not succeed but it is still very important that the nation tackles this legislative rascality before matters get out of hand. It is obvious that there is a whole bunch of men and women with enormous carry-over of military mentality, the so-called Abacha men, in the National Assembly but the nation reserves to herself the right to prevent another cataclysm by probing well into these incidents.

For a start, the legislature does not have the power, under the constitution of Nigeria, to declare a state of emergency. That should be lesson number one in our legislative process. Many of our lawmakers might not have had the time to read the Constitution up to Section 305 dealing with the procedure for the declaration of a state of emergency in the Republic. We all know that ignorance of the law is no excuse for such disgraceful and dangerously tendentious conducts. Clearly, the constitutional obligation to declare a state of emergency is that of the President. In the clear language of the relevant provisions: "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."

To ensure that the spirit of separation of powers and the attendant checks and balances are fully complied with in this delicate procedure, the constitution directs, in the succeeding sections, that the President shall immediately transmit copies of the Official Gazette to the President of the Senate and Speaker of the House of Representatives whereupon they will convene a meeting of the their respective chamber to consider the situation and decide whether or not to pass a resolution approving the Proclamation made by the president. One does not need to be a constitutional lawyer to understand why this procedure is crucial. The declaration of a state of emergency is too important to be left to one man, not even the president. So, this input of the legislature was considered a wise check on possible abuse given the consequences of a defective emergency proclamation. Even at that, the constitution clearly listed conditions under which the President can validly declare a state of emergency. These include the out break of war; threat of invasion; actual breakdown of law and order "of such extent" as to require extra-ordinary measures; clear and present danger of a breakdown of law and public safety; the occurrence of disaster or calamity affecting the community and section of the community within the federation and the existence of public which clearly constitute a threat to the existence of the federation.

One other instance in which the President can lawfully exercise this power is when a Governor of a state, with the sanction of a Resolution supported by two-thirds majority of the House of Assembly requests the President to do so in respect of his state. Unless the governor fails to act within a reasonable time after the Resolution of the House of Assembly, the President has no business declaring a state of emergency in a state of the Federation under this provision. Even if President goes ahead to declare it, the National Assembly can lawfully terminate it by refusing to pass the requisite resolution necessary for the declaration to have the force of law within a specified period, depending on whether the assembly is in session or not, at that particular time. In no other circumstances, however, must the existing emergency endure beyond a period of six months unless the National Assembly votes to extend it. These very strict provisions are the direct products of our constitutional history.

All is fair in war including the political variety but in this particular instance, there is evidence of a legislative attempt to usurp the power of the Executive. The role of the National Assembly in the process of declaring a state of emergency is very important as far as the moderating of the powers of the executive is concerned. What is however not within the contemplation of the constitution is for the legislature to assume the purely executive function of initiating a state of emergency simple because one of them is embattled elsewhere. Such is both immature and vindictive. Common sense should tell us that it will come to naught for the legislature to create a state of affairs they are not constitutionally equipped to manage, for, declaring a state of emergency is not the same as fixing one’s wages. For all intents and purposes, it is a declaration of war, something none of them truly desire. After the civil war experience, a prolonged military rule, the weakening of the national fiber and ‘where we have now found ourselves’, one is permitted to think that Nigerians are tired of emergency rule. Why our honourable lawmakers are calling for one at this very time is the poser for the millennium. More importantly, adults saddled with such a high level constitutional obligation as nation building ought to have known that crying wolf, which is what this legislative braggadocio amounts to, when none is present could be tragic if and when the real wolf truly appears.

Cambridge, MA

September, 2001