State of
By
Mobolaji E. Aluko,
Ph.D.
INTRODUCTION
On
Only now are new emergency
power regulations being proposed and tabled for consideration by the National
Assembly, after that same assembly had approved Obasanjo’s moves on May 19 -
before the tabling. In a letter to the NA
entitled
"State of
"The regulations are made under Section 3 of the Emergency Powers Act 1961 (as
modified). Under Section 5 of the said Act, every regulation so made requires
approval by resolution of each House of the National Assembly within two months
of the coming into operation of the regulations," he stated in the letter.
Section 5 of the Act states, "Every regulation made under Section 3 and every
order or rule made in pursuance of such a regulation shall, without prejudice to
the validity of anything lawfully done thereunder, cease to have effect at the
expiration of a period of two months from the date upon which it came into
operation unless, before the expiration of that period, it has been approved by
resolutions passed by both Houses of Parliament."
The best legal minds in the country – from
Chief FRA Williams, to Professors Nwabueze and Itse Sagay, as well as the
president of the Nigerian Bar Association, Chief Wole Olanipekun and the fiery
Gani Fawehinmi – conceding that the president could invoke emergency powers,
have condemned the dismissal moves as unconstitutional, particularly when it
(and the new powers that the president seeks) was based on a “spent”, “omitted”
Emergency Powers Act 1961 regulations – according to
the index to the Laws of the Federation of Nigeria
1990.
The regulations which the President
Obasanjo is now seeking National Assembly approval for are: Emergency Powers
(General) Regulations 2004; Emergency Powers (Procession and Meetings, etc);
Emergency Powers (Reporting of Persons) Regulations 2004; Emergency Powers
(Control of Arms and Explosives) Regulation 2004; Emergency Powers (Curfew)
Regulations 2004; Emergency Powers (Detention of Persons) Regulations 2004;
Emergency Powers (Restriction Orders) Regulations 2004; and Emergency Powers
(Protected Places) Regulations 2004.
Yet the National Assembly has, on June 1, again
passed these new regulations, after “helping” the president’s non-performing
legal team by deleting references to the spent 1961 regulations and referring to
them instead as bills.
Can you imagine? The bills sound pretty
draconian, don’t they – as if we were back in a military regime. In fact,
also on June 1, one week after two
In the suit filed on behalf of the human rights
activists by the Lagos-based Senior Advocate of Nigeria, Chief Gani Fawehinmi,
those cited as defendants are President Olusegun Obasanjo, Federal
Attorney-General, Chief Akinlolu Olujimi (SAN), Sole Administrator of Plateau
State, Major General Chris Mohammed Alli and Adolphus Wabara, the Senate
president. Other defendants are the Speaker of the House of Representatives,
Alhaji Bello Masari, suspended Governor of Plateau State, Chief Joshua Dariye,
his deputy, Chief Michael Bot-Mang, the Plateau State House of Assembly and the
Plateau State Attorney-General.
Is there any lessons to be learnt from
history, when arguments of “the end justifies the means” are made to make
controversial laws that are unconstitutional? Plenty – but just one should be
mentioned here: that you never know where a particular action might end as one
illegality is used to cover another illegality: Unintended consequences they are
called.
Let us take a walk in history, more than forty
years ago…..
BEGINNING MAY 1962…..
On
On
QUOTE
Source: "
At the party’s annual convention held in January
1962 at Jos, the bitter disagreements among the leaders of the party were
brought into the open. The dispute was caused largely by differences on tactics
between Chief Samuel Ladoke Akintola, the then Premier of the Western Region and
the deputy leader of the party who advocated that the Action Group should enter
a Federal Coalition Government, and Chief Obafemi Awolowo, Leader of the
Opposition in the Federal Parliament, who strongly opposed this view and also
supported a more radical policy in internal affairs.
The conflicts involved more than party discipline
and a power struggle between the two men. Since 1960, Chief Awolowo, sensing
the growing discontent and grumbling among Nigerian Youth, had attempted to woo
their votes by transforming the Action Group from a Yoruba-based, Western
Regional party into a National Party with a radical socialist outlook. He
demonstrated that Action Group had no future without it. The conflict within
the Action Group became a battle between the young radicals led by Awolowo and
the businessmen and traditional rulers led by Chief Akintola.
Late 1961, Chief Awolowo asked a group of young
party leaders to draft a series of working papers defining democratic
socialism. These papers were brought before the Action Group Federal Executive
in December when they were derided by Chief Akintola as the work of
revolutionary babes who haven’t the political astuteness to gain the party a
single vote. Also Chief Akintola refused to accept the continued push by Chief
Awolowo and the Youngmen to campaign both in the North and the East.
He argued that the Action Group should face
realities and stay in the West.
UNQUOTE
By a vote of 81 to 29, it was decided that
Akintola be dismissed from the party and that he resign his premiership.
He refused. On May 20, Federal Executive Committee of AG decided to remove him as Deputy Leader of the party and premier. A majority of the legislature also signed a letter send to the Governor of the Western Region, Sir Adesoji Aderemi, the Ooni of Ife, asking that Chief Akintola to be dismissed. Accordingly, on May 21, the Ooni obliged, stating that “he was convinced that he (AKINTOLA) no longer enjoyed the support of the members of the House of Assembly.” Alhaji Dawodu Soroye Adegbenro was asked to form a cabinet, which was sworn in May 23. Rather than work from the premier’s office (which remained forcibly “occupied” by Akintola and his supporters), Adegbenro worked from his home residence.
On Friday, May 25, a House of Assembly meeting
called to debate a motion of confidence in the new government ended abruptly
with a free-for-all fight involving the throwing of chairs. This caused the
Prime Minister to call for a special session of the Federal Parliament for 29th
May.
On
QUOTE
Ibid.
I rise to move the Resolution standing in my name
which reads as follows:
That in pursuance of section sixty-five of the
Constitution of the Federation it is declared that a state of public emergency
exists (IN THE WESTERN REGION OF NIGERIA) and that this resolution shall remain
in force until the end of the month of December, nineteen hundred and
sixty-two.”
UNQUOTE
He then went on to give historical reasons why he
thought his motion should be supported by those present.
After his lengthy speech, Chief Obafemi Awolowo,
leader of Opposition in the Federal Parliament, and Leader of the Action Group
that was the ruling (but then conflict-ridden) party in the Western Region,
said:
QUOTE
I beg to move the following Amendment to the
Motion already proposed by the Prime Minister:
“To delete all the words of the Motion after –
That – and substitute – “This honourable House declares that having regard to
the provisions of section 65 of the Constitution of the Federation of Nigeria a
state of public emergency does not exist.”
UNQUOTE
He then went on to argue that the motion was
discriminatory, and would amount to a gross misuse of power if approved.
After voting, Ayes were 32, Noes were 7 and
Abstention – 2, and the motion was passed, giving the Federal Government
constitutional powers to take over the administration of
On June 6, 1962, Alhaji Adegbenro, who had been chosen as new
leader by the Action Group to replace Chief SLA Akintola went to the Supreme
Court, and lost in a decision given on July 7.
QUOTE
Ibid., pages 118 ff.
ALHAJI ADEGBENRO CHALLENGED THE EMERGENCY
POWERS
Two interlocutory motions seeking the
Federal Supreme Court's
authority to restrain the Western Nigeria Administrator from
restricting them until they had argued
their substantive motions
challenging the validity of the Emergency
Powers Act operating in
Western Nigeria were filed by Alhaji Adegbenro and Chief
Rotimi
Williams, legal adviser to the Action Group, who had also
been
restricted.
The interlocutory motions were dismissed by
the Supreme Court on June
7, on the grounds that the Court was unable to say that
Parliament
could not legislate in appropriate cases for the restriction
of the
movements of individuals except in case of war, and would
therefore
refrain fro the present from deciding the validity of the
Emergency
Powers Act.
On
(1) By three votes, including that of the
Chief Justice (Sir
Adetokunboh Ademola), to one the court held that "the
Governor cannot
validly exercise the power to remove a Premier from office
except in
consequence of proceedings from the floor of the House of
Assembly",
and it therefore declared Chief Akintola's dismissal invalid.
Mr.
Justice Lionel Brett, in a dissenting opinion, said that "always
assuming good faith, the Constitution does
not preclude the Governor
from acting on any information which he considers
reliable", and that
it would be unwise to apply in practice unwritten conventions
of the
British Constitution to the provisions of Nigeria's written
Constitution.
(2) The court held that the Emergency
Powers Act and its regulations
were constitutionally valid and did not exceed the
powers of the]
Federal Parliament, and that there were ample grounds for the
restriction placed on Alhaji Adegbenro's
movements in the interests
of peace and avoidance of bloodshed. Alhaji Adegbenro's
legal
advisers stated afterwards that they would appeal to the
Privy
Council in both the case in which it was involved.
(3) The court found that the restriction
order imposed on Chief
Williams, who had acted as chairman of a conciliation
committee which
sought to bring together the two factions of the Action
Group, was
unreasonable and unjustified, and directed that it should be
set
aside. A new restriction order, however, was served on Chief
Williams later the same day.
Following the split in the Action Group,
Chief Akintola's supporters
formed the United Peoples Party, which secured control
of the
Group's assets between "the two factions in
the party."
UNQUOTE
A “
QUOTE
Ibid p. 117
Clearly, Alhaji Sir Abubakar’s decision to declare
an emergency strengthened
Viewed domestically, however, the federal action
had some disturbing sides. The Prime Minister seemed to attribute most of the
blames for the crises on Awolowo. He chided the Action Group leader for trying
to move too fast on questionable constitutional grounds in ousting Akintola.
But he also seemed to ignore that a small minority, by screaming and chair
throwing, frustrated the House majority and achieved exactly what it wanted.
There was no doubt that Awolowo and his followers, by trying to avoid an
election, moved on questionable ground. But the Akintola people had recourse in
the courts.
Much of the federal government oratory also gave
the impression of a complete breakdown in law and order in the West. The
breakdown, however, occurred on the floor of the House; the rest of the Western
Region was tranquil, although no one can be certain what the situation might
have been if the federal government had not moved in.
UNQUOTE
On
The Coker Commission enquiry opened on
QUOTE
By which any person who, in any newspaper,
periodical, book, circular or printed publication on, or means of any
broadcasting system published any matter –
“referring to, or likely to be understood by
members of public as relating directly or indirectly to any person in respect of
whom a detention order or restriction order had been made and not revoked; or
referring to these regulations, should, unless the matter had previously been
submitted to and approved in writing to and approved in writing by or on behalf
of the Administrator or the Minister of the Government of the Federation
responsible for information, be guilty of an offence against the Emergency Power
Regulations, 1962 and regulations 3 and 4 of those regulations which specify
penalties and the consents required for prosecutions.”
UNQUOTE
On October 1, Prime Minister Balewa in a
nation-wide broadcast told the nation that his government had been aware for
some time of violent intentions of certain politicians to forcefully overthrow
the legitimate government in
On
QUOTE
Chief Awolowo has failed to adhere to the standard
of conduct required of a Premier, and “there is not sufficient evidence in our
view to say the same of Chief Akintola and we absolve him on all grounds.
UNQUOTE
On that same day (
WE ENTER INTO 1963……….
On
On
On
The case lost by Alhaji Adegbenro before the
Nigerian Supreme Court in July 1962 finally wound its way to judgement delivery
by the Privy Council in
QUOTE
Ibid. pages 120 ff.
PRIVY COUNCIL DECISION ON PREMIERSHIP
DISPUTE
Leave was granted by the Federal Supreme
Court to Alhaji D.S.
Adegbenro to appeal to the Privy Council in
On
Giving judgement for the Privy, Lord
Radcliff said that the Nigerian
Federal Supreme Court had by a majority decision
denied that the
Governor could validly exercise the power to remove a Premier
from
office except in consequence of proceedings from the floor of the
House of Assembly. This Lord Radcliff said
had not answered the
further question whether such a removal was possible on the
basis of
any material or information extraneous to the proceedings of
the
House of Assembly.
Quoting relevant sections of the Western
Nigerian Constitution, Lord
Radcliff concluded that no limitation of the statutory
power of the
Governor in exercising his right to dismiss a Premier could
be found
in the words of the constitution which said in section 33(10)
that "the Governor shall remove the Premier
from office if it appears
to him that the Premier no longer commands the support of
the majority
of the members of the House of Assembly." These words
according to
the Lord indicated that the judgement of
the support enjoyed by a
Premier was left to the Governor's own assessment, and
there was no
limitation as to the material on which he was to base his
judgement
or the contacts to which he was to base his judgement, or the
contact
to which he might resort for the purpose.
CONSTITUTIONAL AMENDMENT NULLIFYING
PRIVY COUNCIL DECISION
On the same
On May 30, 1963, the
Federal Prime Minister, Sir Abubakar Tafawa
Balewa issued the following statement:
"I have given the issues raised by the
opinion of the Judicial
Committee of the Privy Council most anxious thought; and I
have
reluctantly come to the conclusion that, of the alternative course of
action open to the Federal Government, the
most expedient is for it
to give support to the Constitution of Western Nigeria
(Amendment)
Law, 1963.
"After all the recent upheavals,
An emergency session of the Federal House
of Representatives approved
on June 3 a Government motion ratifying the amendment
of the Western
Nigerian Constitution by the Regional Parliament.
UNQUOTE
EPILOGUE
Western Region and Nigeria went downhill from
there on, culminating in a military coup three years later (on Saturday, January
15, 1966) that plunged into a period of instability that we are yet to fully (?)
recover from, and justifying
the well-known idiom that many a times the road to hell is
paved with good
intentions.
Let us pray.
BIBLIOGRAPHY
See also:
“The May Month That Shook
http://www.ngex.com/personalities/voices/mqb060302baluko.htm