Jiti Ogunye, a Lagos lawyer and public affairs analyst, spoke with THOMAS USHIE. Excerpts:
As a legal practitioner, what is your take on the State of Emergency declared in Adamawa, Borno and Yobe states?
I am not surprised that a lot of people, including lawyers, doubt the rightness, reasonableness and constitutionality of the declaration of a state of emergency without the temporary dissolution or demolition of "democratic structures". People have asked what kind of a state of emergency is this that will not suspend the operation of these democratic structures. You know, we are becoming used to fundamental constitutional breaches and bad and dictatorial governance that it has become a way of life.
Unlike the previous state of emergencies declared during the administration of Olusegun Obasanjo on Plateau and Ekiti states, the governors of Adamawa, Borno and Yobe states are still in office. Is this a novel idea in the Constitution, has it been there or it is it a matter of the discretion of the executive?
A proclamation and declaration of state of emergency does not necessarily imply the temporary suspension, removal or demolition of democratic structures. A declaration of a state of emergency does not imply that democratic structures have to be suspended. All democratic structures or institutions in the country, including the Office of the President, owe their existence to the same document: the Constitution. Thus, the President cannot, under the pretext of a proclamation of a state of emergency, suspend the governor of a state or dissolve, disband or suspend the House of Assembly of a state. Section 11 (4&5) of the Constitution does not support such a proposition.
The only conceivable ground for dissolving a state house of assembly or removing a governor under a declaration of a state of emergency is when these authorities declare secession from Nigeria, are levying war against Nigeria or declare that they no longer bear allegiance to Nigeria. In other words, when the anti- Nigeria acts of these institutions are the reasons for the declaration of a state of emergency, arguably, they may be dissolved.
But how can emergency rule be effective with the retention of democratic governmental powers?
The reductionist argument that democratic structures cannot co-exist with a declaration of a state of emergency forget that a state of emergency may be declared to tackle severe natural disaster, such as a earthquake or flood, when the resources of a state are inadequate to contain a looming catastrophe. In such a situation, do we dissolve democratic structures? Or have those pushing for the dissolution of democratic structure forget that the judiciaries of these states are not only democratic structures but also institutions of the rule of law; why is it not being suggested that they be disbanded or suspended from operation, also?
In 1962, during the Western Nigeria Region Crisis when a state of emergency was declared, and when President Obasanjo did so in Plateau and Ekiti states, were the judiciary, a "democratic structure" suspended from operating?
Much ignorance is being exhibited in discussing this issue. Obasanjo's perversion in Plateau and Ekiti states, during his presidency, when both the executive and legislatives arms of government were suspended from operation, and, in their stead, retired military officers Chris Ali and Tunji Olurin were appointed as Sole Administrators, is being cited as an ideal declaration of a state of emergency. So also was the fraudulent declaration of a state of emergency in Western Region in 1962, by the NPC/ NCNC Federal Government, obviously to save an ally, Chief S.L Akintola – the Premier – from falling from power, and to decimate the political opposition – the Action Group. The legal history of that perfidious intervention is captured in the Privy Council's decision in the case of Adegbenro v Akintola ( 1963) 3 WLR, 63. These are unconstitutional precedents, from which Nigeria should depart.
National Mirror