This State of Emergency Conjecture – Part 4 | The Guardian Nigeria News

It cannot be denied that the National Assembly has a general power to vote on resolutions. He can pass resolutions noting the situation in the federation or part of it and suggest a solution, although he must be careful in his language, otherwise he risks entering recklessly into a constitutionally immature question for him and submit to charges. For the purposes of a resolution under Article 305, however, the National Assembly cannot pass a resolution approving or refusing to approve a proclamation already made by the president, and the president must have acted in accordance with the constitution, otherwise, any approval by the Assembly cannot legitimize an ultra vires action, nor even disapprove an action which does not exist de jure.

In the final analysis, the President cannot hide behind the National Assembly and cannot use it to achieve an unconstitutional end.

Measures that can be taken in an emergency
Even some of the protagonists from the point of view of the declaration of emergency would be surprised at the ignorant assumptions of those who took the drumbeat and partly out of fear and partly out of uninformed support have beaten crescendo which should have been ignored as an attention. get an attempt. There is nothing sacrosanct in the state of emergency, and the constitution does not even begin to elevate it to any level of sacrosanct. A period of emergency is a constitutional aberration at all times and the constitution regards it as such.

Because of its possible political abuses, the constitution provides for adequate controls, so that the necessity underlying the granting of such powers is not replaced by political expediency.

The most important checks on the constitution are found in the procedure stipulated in article 305 of the constitution itself. The wisdom of the constitutional drafters in this section is that the president can’t really pass the buck of the decision. It is also because the country is (supposed to be) a federal democracy that in a situation where the facts requiring a declaration are confined to one state by region, that the power to initiate the procedure is given not to the federal government but to the closest representatives of the people of the state in state government – the State House of Assembly. From there it passes to the governor of the state. It is also because the constitution provides that the paraphernalia to solve the problem must have exceeded the capacity of the state and that if it were left to the state it could extend beyond itself and even engulf the whole federation, that the preparation of the declaration ultimately involves the federal executive, subject to sanction by resolution of the federal legislature, otherwise the principles of federalism would not have allowed the involvement of the federal government at all. federal government.

In times of emergency, the police powers of the State are reinforced (“State” is used here in the sense of the case law of the whole federation). What would normally be ultra vires under normal conditions would be intra vires of the constitution, subject to certain conditions. It would be especially in a period of duly declared emergency that certain restrictions and derogations would be valid under the constitution.

Article 45 (2) of the Constitution provides:
“A law of the National Assembly is not invalidated by the sole fact that it provides for the taking, during periods of emergency, of measures derogating from the provisions of article 33 or 35 of this constitution; but none of these measures shall be taken as a result of such an act during a period of emergency, except to the extent that such measures are reasonably justifiable for the purpose of dealing with the situation which exists during that period of emergency. .

It is beyond altercation, whether of grammar or legislative intent, that this derogatory provision sets clear conditions. Unless all the conditions set out therein are met, no action by the government can pass the constitutional course. Therefore, it can be inferred from Article 45 (2) that,
Although a period of emergency may have been regularly promulgated by the President under the relevant article of the constitution, there can be no derogation based on such promulgation until the National Assembly has adopted a law stipulating measures that could be taken which, although they are ordinarily derogatory and unconstitutional, would still be valid because they are taken in times of emergency;
Even if the National Assembly promulgates such a law, a derogatory measure taken on this basis would still be below the acceptable constitutional threshold, except that such a measure is “reasonably justifiable for the purposes of dealing with the situation which exists during that period of time. ’emergency’.
A reservation in this subsection emphasizes that the National Assembly can by law only authorize a derogation from the right to life in the event of death resulting from acts of war, and that under no circumstances an ex post factor law. cannot be validated. A period of emergency therefore cannot be an authorization for extrajudicial killings and unconstitutional arrests, kidnappings and disappearances as we have seen recently in Imo State and other South Eastern States.

Nowhere in the Constitution does the President have the power under the Constitution to replace the Governor or executive government of a state and replace the Governor with a military administrator. Nowhere does the Constitution allow the president to usurp the powers of the governor, either directly or by proxy. Nowhere is it provided that the National Assembly has the power to assume the legislative function of a State Assembly or to dismiss an operational and functional legislative body of a State. The arguments which have so far muted such possibilities have been and can only be outside the Constitution. That a president could simply by proclamation exercise power beyond the broadest framework of constitutional government is a proposition beyond the most extreme limits of reason.

That such a power could be implied when nothing remotely suggests it in the constitution is, with all due respect, symptomatic of constitutional madness.
To be continued tomorrow

Opara is a lawyer based in Lagos.

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