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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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