GEORGE OJI writes that but for the high sense of patriotism and nationalism demonstrated by members of the National Assembly, the State of Emergency Act 2013, enacted into law last week, would have resulted in a constitutional crisis.
The process for the enactment of a State of Emergency Act, according to the 1999 Constitution as amended, differs in many respects with the way normal bills are promulgated into law. One major difference is that unlike normal bills, where the president is the last person to assent before the document becomes law, in the case of the emergency act, the National Assembly is the final authority before the instrument becomes law and binding.
Another significant difference of the Emergency Rule Act is that it is one of those rare situations where the constitution requires that the 2/3 absolute majority membership of the National Assembly that must assent to the proclamation before it becomes an act must be the 2/3 of the entire elected members of each chambers of the parliament and not just 2/3 of the lawmakers that attends the session on the day the proclamation is deliberated upon.
Also, the emergency law differs from normal bills process because the former has a timeline attached to it. For instance, the whole process for the enactment of a State of Emergency Act as contained in section 305(2) and 305(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria, allows the National Assembly (in session) only 48 hours to conclude the process once the proclamation has been made, gazette and sent to the National Assembly by the President.
When the National Assembly is not in session, the law allows only 10 days within which the parliament is expected to reconvene and approve or disapprove the proclamation as the case may be. President Goodluck Jonathan had on May 9, during a nationwide broadcast, announced the imposition of state of emergency in three Northern states of Borno, Yobe and Adamawa.
Jonathan had also directed the Defence Headquarters to swiftly move into the affected states to ensure the restoration of order and the safeguard of lives and property. The president said his action was informed by the deteriorating security situation in those states, which were under the threat of the dreaded Boko Haram sect.
In the Senate, besides the special announcement by the Senate President David Mark urging senators to all be present, the Clerk of the red chamber, Mr. Ben Efeturi, put out several notices of paid advertisements in both radio, television and national newspapers across the country.
Last Tuesday, May 21, when the proclamation was deliberated upon at the National Assembly, the senators did not have any problems approving the proclamation. The motion on the state of the nation, which was sponsored by the Senate Leader, Senator Ndoma-Egba incidentally, was the only business in the order paper of the Senate for the day.
Immediately upon resumption and after the adoption of the votes and proceedings of last Thursday's sitting, Senate President Mark proceeded to read a letter from President Jonathan, which contained copies of the official gazette of the State of Emergency Proclamation, 2013 for necessary action by the Senate. Subsequently, and citing Rule 136 of the Senate Standing Orders, the Leader immediately moved that the Senate retire into an executive session (closed door), in accordance with the procedures for dealing with the issue of state of emergency.
Time was 11.21a.m. Rule 136 reads thus: "The President shall in a closed-door session brief the Senate on the circumstances of the proclamation of a state of emergency and thereafter make available to the senators, the documents as provided by the President of the Federal Republic of Nigeria."
When the senators emerged from the closed-door session at 12.35p.m., the Senate President read out the outcome of their deliberations at the executive session. Subsequently, the Leader again, citing Rule 137 of the Senate Standing Orders, moved that the Senate resolved into a committee of the whole to discuss what was agreed upon while at the closed-door session.
Rule 137 provides that, "Except the Senate by a unanimous decision directs, the Senate shall then forthwith resolve into a committee of the whole for the consideration of the proclamation and on reporting progress, the Senate shall decide in accordance with the provisions of the constitution of the Federal Republic of Nigeria approving the proclamation."
At the committee of the whole, Mark announced that a total of 100 senators attended the day's session and unanimously supported the proclamation of the state of emergency in Borno, Yobe and Admawa states by the President.
When he asked if that represented the true position of what took place during the executive session to voice vote, the senators overwhelmingly said yes, without any single dissent. National Mirror, however, found out that the 100 senators excluded the two presiding officers i.e. the Senate President David Mark and his Deputy Ike Ekweremadu.
The seven senators who were absent from the special session were Senators Ahmed Lawan (Yobe North), Maina Maji Lawan (Borno North), Oluremi Tinubu (Lagos Central), Babafemi Ojudu (Ekiti Central), Olusola Adeyeye (Osun Central), Danjuma Goje (Gombe Central) and Ibrahim Musa (Niger North). Senate President, while explaining the absence of the senators, said they were out on one official duty or the other.
However, while fielding questions from Senate correspondents at the end of the session, the Senate spokesman, Senator Enyinnaya Abaribe explained that the Senate decided to adopt voice vote to protect members from any possible victimisation they may face if there was head count as required by the Senate rule. But in the House of Representatives the situation was slightly different.
After the lawmakers emerged from their three and half hours closed-door session where the matter was deliberated upon extensively, 253 members approved the proclamation but voted against what they described as the sweeping powers the president sought to exercise over the affected states.
Consequently, the House elected to amend some of the sections of the proclamation. Efforts by some opposition members, particularly those of the Action Congress of Nigeria (ACN) to oppose the declaration was effectively checked by the majority members from the ruling Peoples Democratic Party (PDP).
Following the differences in the Senate and House's versions of the Emergency Powers General Regulations 2013, it became apparent as required by the parliamentary procedures that a conference committee is needed to harmonise the areas of differences.
Mindful of the timeline stipulated by the constitution, both chambers promptly constituted their individual conference committees same day. Consequently, the next day, the conference committee sat and without much ado, harmonised the areas of differences in the proclamation.
The conference committee was chaired by the Chairman, Senate Committee on Rules and Business, Senator Eta Inang (Akwa Ibom North-East), with him on the Senate side were Senators Nenadi Usman (Kaduna South), Joshua Lidan (Gombe South), Babayo Gamawa (Bauchi North), Kunlere Boluwaji (Ondo South) and Solomon Ewuga (Nasarawa North).
Members of the conference committee from the House led by the Chairman of Rules and Business, Hon. Albert Sam- Tsokwa also included Aminu Shagari, Ben Nwankwo, Ahmed Ali, Nath Afunbiade, Nkoyo Toyo and Chikere Kenneth.
But, there were strong administrative and protocol breaches, which normally would have scuttled the passing of the emergency act, but again, the lawmakers out of sheer maturity decided to overlook same and approved the law.
For instance, it was observed by Senator Wilson Ake that both chambers were supposed to have elected equal number of representatives to the conference committee, but while the House nominated seven members, the Senate nominated six.
Also, Ake raised the issue of having a cochairman for the conference committee. However, following a very strong appeal from the Deputy Senate President, Ekweremadu, who presided at the day's plenary, the senators agreed to let sleeping dog lie and approved the report, knowing the implication of not doing so.
At the end of the day, the point was strongly registered that henceforth, the Senate would not overlook such serious breach of protocol. Basically, the area of difference between the Senate and the House of Representatives had to do with the limitation of the powers of the president with regards to the state governments and the local governments in the three states where the emergency rule is to apply.
Whereas the Senate approved sweeping powers for the president over the states and local governments where the emergency rule applies, the House of Representatives limited the powers of the president only to matters of public order, peace and security. The bone of contention had to do with the, "Powers of the president to make orders," as contained in clause three of the, "State of Emergency Powers Act."
The Senate clause three of the bill read: "The President may give directions to a state governor or local government chairman directly or through his designate or a duly authorized person with respect to the administration of the emergency area and it shall be the duty of the state governor or local government chairman to comply with the directive," whereas, the House version read: "The President may give directions to a state governor or local government chairman directly or through his designate or a duly authorized person with respect to the administration of the emergency area, in matters of public order, peace and security only and it shall be the duty of the state governor or local government chairman to comply with the directive."
The conference committee adopted the House's version, which was eventually also approved by both chambers. With this development, the National Assembly was able to avert what would have resulted in a constitutional crisis if it had failed to assent to the state of emergency declaration within the stipulated 48 hours.
National Mirror