Nigerian Governors Get Jittery When “State of Emergency” Is Mentioned: A Juristic Overview of S.305 of the Constitution of the Federal Republic of Nigeria, 1999 as Amended

The Constitution of the Federal Republic of Nigeria, 1999 as amended empowers the country’s President in section 305 to declare a State Emergency in the whole country or any part thereof if the country is involved in any crisis situation caused by either human beings or natural phenomena such as earthquake, floods, erosion etc. The essence of this provision is to enable the president to restore peace and order during that period of emergency after which normalcy will return. The International Convent on Civil and Political Rights 1966 (ICCPR) of the United Nations allows countries to declare state of emergency which will involve taking measures to solve either man-made or natural exigencies and to return the country immediately to constitutional order as soon as the emergency is over. Purportedly, acting under section 305 as aforementioned, two former Presidents of Nigeria in 2004, 2006 and 2013 declared state of emergencies in 5 (five) states of the country. In the 2004 and 2006 events, President Olusegun Obasanjo in declaring state of emergency in Plateau State and Ekiti State respectively suspended the Governors of the 2 (two) states and their Houses of Assembly for 6 (six) months and appointed former military officers to act as Administrators of the States. In the 2013 event, President Goodluck Jonathan declared state of emergency in Adama-wa, Yobe and Borno States because of the activities of Boko Haram extremists in the region but did not suspend democratic structures. As a result of the events in the states where state of emergency had been declared in Nigeria in the past, sitting Governors and their Houses of Assembly live any Governor or prevent the Houses of Assembly from performing their functions because of state of emergency and suggests that section 305 (3) should be amended to state clearly what the President should do in each oc-casion whenever a state of emergency is declared either because of natural disaster or civil disobedience in the country, instead of leaving the President to do whatever he wants whenever he declares state of emergency.


Introduction
Section 305 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides as follows: subject to the provision of this Constitution, the President may by instrument publish 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. In subsection 2 of the same, 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 Representatives who in their two chambers with their members will decide whether or not to pass a resolution approving the proclamation. This approval should be done within two days if the Houses are in session or within ten days if they are not in session.
Section 305 (3) enumerates the situations when the President may declare state of emergency and they include: when the federation is at war or where the federation is in imminent danger of invasion or involvement in a state of war, when there is actual break down of public order or public safety in the whole country or any part, when there is clear and present danger of an actual breakdown of public order and public safety or any public danger which clearly constitutes a threat to the existence of the federation or where the president receives a request from a State Governor asking him to declare a state of emergency in the Governor's State which request must be accompanied by a resolution of the State House of Assembly.
In the year 2004, the then sitting President of Nigeria, Chief Olusegun Obasanjo declared state of emergency in Plateau State, removing the State Governor, Mr. Joshua Dariye and suspended the House of Assembly too for six months (Nwabueze, 2004). In the year 2006, the same President repeated the exercise in Ekiti State whereof he removed a sitting Governor Peter Ayodele Fayose and his Deputy, Mrs. Abiodun Olujimi and replaced them with retired Army General, Tunji Olurin for a period of six months (Aluko, 2006 tutional in action as he did not suspend the Governors and the Houses of Assembly as done by Obasanjo in the above two cases (Rose, 2013 In order to give comprehensive attention to this paper, we shall first discuss the meaning of state of emergency or emergency powers, the history of state of emergency in Nigeria, especially since 1999, a little comparism between state of emergency in Nigeria and other jurisdictions and we then make our recommendations to avoid a situation where the same type of incidents produces different reactions from different presidents.

The Concept of State of Emergency and or Emergency Powers
State of emergency which is synonymous with emergency powers appears to be better described or explained because even the constitution of Nigeria merely describes it. Simply it means a situation where the highest state authority takes steps to prevent a breakdown of law and order in the whole or part of the country where there is monumental natural disaster or man-made activity which threatens the existence of the whole country or any part thereof. According to authors of the Concise Oxford English Dictionary, 11 th Edition (Soanes and Stevenson, 2004), state of emergency is a situation of national danger or disaster in which a government suspends normal constitutional procedures. Also to be inferred is that emergency powers mean powers arising from emergency situation or powers used during emergency. That is to say that emergency powers are powers used when an unexpected and potentially dangerous situation which requires immediate action takes place in a country (Soanes and Stevenson, 2004).
Another definition given of emergency powers under the Civil Contingencies Act, 2004 of the Unite Kingdom is worthy of mention here. According to an author (Woodley, 2005)  Another definition of emergency powers is that proffered in the Oxford Dictionary of Law which states that emergency powers means powers conferred by government regulations during a state of emergency. The existence of such a state is described by royal proclamation under the Emergency Powers Act, 1920 and 1964 and the Civil Contingencies Act 2004. A proclamation, which lasts for one month but is renewable, may be issued whenever there is a threat (e.g., a major strike or national disaster) to the country's essentials of life. The regulations made may confer on government departments, the armed forces and others all powers necessary to secure the supply and distribution of necessities and maintenance of public peace and safety (Martin and Law, 2006).
Conclusively, on what we mean by state of emergency, section 45 (3) of Constitution states that: in this constitution, 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 exercise of the power conferred on him under section 305 of the Constitution: That is why we stated at the commencement of this paper that the Constitution itself does not help as to the definition of what is state of emergency but what we can take from the above views expressed by scholars is that a state of emergency is declared by the highest state authority in a place where there is threat to the existence of the country or part thereof arising from man-made or natural phenomenon. A state of emergency is a temporal situation where few human rights are suspended to enable government handle the emergency and restore situation to normalcy.

Emergency Power in Nigeria in Historical Perspectives
The history of the use of emergency powers in Nigeria can be traced to what happened in old Western Region of Nigeria in 1962. According to a historian, it was political disagreements between the leaders of the Action Group (AG) party, that is, Chief Obafemi Awolowo and Chief Samuel Ladoke Akintola in May, 1962 that led to the declaration of state of emergency by the then Federal Government under Prime Minister Alhaji Tafewa Balewa (Adeeko, 2017). The same view was expressed by another scholar of Yoruba history (Teniola, 2017). According to the story, the disagreement between Chief Awolowo who was the leader of the A.G. and his deputy and Premier of Western Region, Chief S.L.
Akintola led to division in the party at both National and Regional levels: Chief S.L. Akintola was expelled from the party. Members of the Western Regional Commenting on this declaration of state of emergency in 2004, a legal luminary, (then alive) stated: that it follows from this that if there is break down of 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 public 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 (Williams, 2004). Haram (Rose, 2013). In the case of this declaration by Jonathan, he complied substantially with section 305 of the Constitution as he did not suspend the Governors nor their Houses of Assembly but only directed security agents to derogate on some fundamental rights and freedoms. However, he did not publish the proclamation in a gazette before radio and television announcements. It was on the 20 th of May, 2013 that the proclamation came out and same was ratified on the 22 nd of May, 2013 by the National Assembly.

Nigeria, International Covenant on Civil and Political
Rights and Some Other Jurisdictions

International Covenant on Civil and Political Rights (ICCPR)
As we pointed out at the commencement of this paper, the International Covenant on Civil and Political Rights (ICCPR) 1966 empowers states which are parties to it to declare state of emergency in deserving situations. Nigeria is a signatory to the Covenant and she is supposed to abide by the covenant. Article 4 (1) states that in a time of public emergency which threatens the nation and her existence, that state of emergency may be declared in which case the state party may take measures that are allowed by the covenant, provided that such measures are not inconsistent with their obligations under International Law and will not involve discrimination solely on the ground of race, colour, sex, language or social origin. Article 6 which relates to right to life, 7 which relates to right to dignity of human person, 8 (1&2) which relates to no slavery or servitude in any form are some of the rights that ICCPR prohibits states from breaching during state of emergency. Retroactive legislations are barred by Article 15 while Article 16 guarantees everyone right to be recognized as a human person and all these are non-derogable. According to the Covenant therefore, the above rights are available to every citizen even during period of state of emergency in any country that is party to the instrument. There is no where in the document that countries are allowed to touch these rights during emergency what

State of Emergency in India
Under the Constitution of India, that is sections 352 and 356; national emergen-

State of Emergency in Sudan
In Sudan, a State of emergency was recently declared in the country based on the country's constitution and it was as a result of protests by citizens of the country who wanted the President to step down, who had been on the throne since June 30, 1989. The President, Omar AI-Bashir had been in control and ruled draconically whereof he raised prices of goods and services to the discomfort of citizens.
Because of the protests, he declared one year state of emergency on 22 nd of February, 2019. He was subsequently overthrown by soldiers and now facing trial (York, 2019). There was no elected official that was removed or suspended by the then President during the state of emergency.

Recommendations
In the light of the foregoing, it is our recommendation that the following be done to make the law certain and predictable so that a sitting President at each particular time would know what to do while declaring a state of emergency in the whole or any part of the country without leaving him to his discretion.

Conclusion
Under international minimum standards, there must be certainty of existing laws and the benefits and punishments contained therein. Section 305 of 1999 Constitution is not certain and predictable.