Anambra: Falana, Ozekhome warn FG over threat of emergency rule
•Say President has no power to remove govs, sack lawmakers
Virulent opposition to the threat of emergency rule in Anambra is spreading like wildfire, with two of Nigeria’s leading lawyers, weighing in, to warn of dire consequences if the central government decides to give vent to the idea.
Chief Mike Ozekhome and Mr. Femi Falana, both noted with concern the mindset of the Muhammadu Buhari administration towards tackling the growing insecurity in Anambra State, with the latter warning that nothing must happen to the existing political leadership in the state.
Ozekhome also went for the prevalent suspicion that the central government was mulling the perceived patently selective approach, to rig the November 6, gubernatorial election for the governing All Progressives Congress.
Joining the uproar, Ozekhome said, “The Attorney General of the Federation flew a kite today (yesterday), to the effect that the Federal Government may declare a state of emergency, ” to ensure necessary security is provided, and in terms of ensuring protection is accorded to lives and properties”. This is towards the forthcoming governorship election, especially “if there is a failure on the part of the state government to ensure the sanctity of security of lives, properties, and democratic order.
“Declaration of a state of emergency is however a serious constitutional matter within the purview of section 305 of the 1999 Constitution. It cannot be done with a knee-jerk approach as the Attorney General appears to suggest. Certain conditions must be met.
“Section 305 permits the president to declare a state of emergency by way of official Gazette. But, a two-thirds majority of the National Assembly ( NASS) must ratify the executive proclamation within 2 days. This shows it is not solely an executive fait acompli. The Legislature must be fully involved.
“The section permits such declaration if the Federation is at war; or if the Federation is in imminent danger of invasion or involvement in a state of war; or if there is an actual breakdown of law and order and public safety in the Federation, or ANY PART THEREOF, in such proportions as require extraordinary measures to restore peace and security.
“A state of emergency may also be declared if there is a clear and present danger of the above scenarios, or a disaster or natural calamity affecting the community or a section of it occurs, or there is an occurrence of any other public danger that constitute threats to the existence of the Federation.
“The president can also declare a state of emergency under section 305(4), where the Governor of a state with the sanction of resolution supported by a two-thirds majority of the House of Assembly, himself requests the president to so proclaim a state of emergency. Such a state of emergency lapses after months; or if the president revokes it by instrument published in the Official Gazette; or if the NASS in session does not support it within 2 days; or the NASS not in session fails to support it within 10 days.
“Surely, widespread threats to lives and properties of innocent citizens, as seen in the above constitutional provisions can lead to a declaration of a state of emergency, especially if it can be demonstrated that there has been the actual breakdown of public and public order. Such does not appear to be the situation in Anambra state as at now.”
Falana’s main grouse was the likelihood of the sacking of Governor Willie Obiano from office if the federal government settles for emergency rule.
Quoting him, “I wish to submit, without any fear of contradiction, that nowhere in the Constitution has the President been vested with the power to remove the elected Governor of a State and suspend democratic structures.
“The Governor of a State can only be removed by impeachment or resignation and not by imposition of emergency rule. In the same vein, the tenure of legislators is 4 years in line with the provisions of the Constitution. Even though former President Olusegun Obasanjo removed two Governors via the imposition of emergency rule, the PDP-led Federal Government later jettisoned the illegal practice. Hence ex- Presidents Umoru Yaradua and Goodluck Jonathan never used emergency rules to remove elected governors or suspend legislative houses and local government councils.
“Indeed, the Federal Government has since realised that it is unjust and immoral to remove a Governor of a State since the President exclusively controls the armed forces, the police, and other security agencies. To that extent, the Federal Government should drop the dangerous plan to remove the Governor of Anambra State and impose a Sole Administrator on the eve of the forthcoming gubernatorial election in the State.” Ozekhome aligned.
He said, “I personally, do not like what is going on in Anambra state, all because of a mere governorship election. Why do people have to maim, burn and take the precious lives of citizens just because of a mere gubernatorial election? Do you kill innocent citizens because you want to serve them? Is it a matter of over-bloated ego? Is it money? I am not aware Anambra has tons of it? Is it a show of bizarre wealth? Just why the incessant killings, and to achieve what? Why turn an otherwise peaceful state into a field of killings and an Odeon of a grisly bloodbath just for a four-year Governor’ s seat?
“The Federal Government will however run into a serious moral and legal cul de sac if it ever contemplates a declaration of a state of emergency, the kite of which was flown by Abubakar Malami, the Attorney General of the Federation.
“For one, the Governor has not declared he can no longer contain the ugly situation. For another, the Federal government will certainly be accused of barefaced duplicity, crass inconsistency, and ignoble selectivity, for which it is now infamous. The question will be, why declare a state of emergency in Anambra over sporadic killings in a few weeks when you have recused to declare it in many Northern states where Boko Haram killings, armed banditry, and serial kidnappings, and rape have been the order of the day for years?
“I would seriously advise the Federal government against it, as it would exacerbate an already ugly situation and engender more tension and insecurity. It would give a ready-made alibi for another Federal Government invasion of the entire South East, in the form of operation “python dance”, etc. So, stop.”
Falana who leads Alliance on Surviving Covid 19 and Beyond ( ASCAB) held that anything outside the constitutional prescription, would not be acceptable.
He said, “Section 305 of the Constitution provides that the President shall have the power to issue a Proclamation of a state of emergency if there is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security or there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger.
“Such emergency rule will lapse if it is not supported by a resolution by a two-thirds majority of all the members of each House of the National Assembly approving the Proclamation within two days after the publication in the Gazette or within 10 days when the National Assembly is not in session.
“It is pertinent to note that the President shall not issue a Proclamation of a state of emergency in any State unless the Governor of the State fails within a reasonable time to make a request to the President to issue such Proclamation. The power of the President to impose emergency rules is limited to the adoption of extraordinary measures to restore law and order or peace and stability. In other words, if a State of emergency is validly declared in any State or in the entire country the President is empowered to deploy troops and take other extraordinary measures to restore law and order.”
He further provided an insight into the position of the law, regarding the deployment of the military to restore law and order.
“Since 2015, President Buhari has imposed emergency rules in Borno, Yobe, Adamawa, Zamfara, Kaduna, and the Katsina States by deploying members of the armed forces to assist the police in the restoration of law and order. The President has adopted such extraordinary measures without seeking the approval of both chambers of the National Assembly.
“In other words, since the emergency rule imposed on the North East region by President Goodluck Jonathan expired by effluxion of time President Buhari has not renewed or extended it. The National Assembly has not challenged the illegal emergency rule imposed without any declaration as stipulated by section 305 of the Constitution. To that extent, I want to believe that the Buhari administration has just realised that the deployment of troops without the declaration of emergency rule in many states of the Federation is illegal and unconstitutional.
“Hence, the threat issued by the Attorney-General of the Federation is an attempt to return to constitutionalism with respect to the imposition of emergency rule in Anambra State and other States in the North West, North East, and southeast regions where the Federal Government is waging a full-scale war against terrorists and the so-called gunmen.
“No doubt, troops have been deployed in Anambra State by the President in order to end the reckless killings and wanton destruction of properties by the so-called gunmen. To ensure that the forthcoming governorship election is successfully conducted by the Independent National Electoral Commission the President may wish to adopt other extraordinary measures in Anambra State.
“However, the President is advised to seek legislative approval to legitimise the deployment of members of the armed forces in the State and other states where the Federal Government is currently conducting counter-insurgency operations. But the Federal Government should not hide under emergency rule to remove elected governors and suspend democratic structures in any State of the Federation.”
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