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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
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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