What’s A State of Emergency Anyway?

On the 15th of May 2013, President Goodluck Jonathan declared a State of Emergency in 3 states in the northern region of Nigeria. Apart from the debate on the propriety or otherwise of the declaration (or “proclamation” as the constitution calls it), a lot of debate has also been had on whether or not a state of emergency can be declared with the Governors of the affected states remaining in office. With all the “sacred” opinions flying about, perhaps it is time to take an academic look at what a State of Emergency is.

What Is A State of Emergency?

A state of emergency is a proclamation by the government of a country suspending certain judicial, legislative or executive functions, or suspending certain rights guaranteed by the constitution, during times of civil unrest or natural disasters. The concept of the need for the state to have emergency powers can be traced back to 5th Century Rome, when the constitution at the time empowered the Senate to appoint a dictator for a period of 6 months, to quickly take decisions and implement strategies for victory at war. Basically, declaring a state of emergency enables the government to override usual administrative controls or circumvent usual checks and balances in order to provide the speedy, effective response a national crisis requires.

When Can A State of Emergency Be Declared?

Generally, an emergency can be declared when circumstances arise that cannot be dealt with quickly or efficiently enough under the rule of law, or under normal constitutional circumstances. Specifically, under the Nigerian constitution, the President has the power to declare a state of emergency when:

a. The Federation is at war;

b. The Federation is in imminent danger of invasion or involvement in a state of war;

c. 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;

d. There is a clear and present danger of actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;

e. There is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity affecting the community or a section of the community in the Federation;

f. There is clearly a public danger which clearly constitutes a threat to the existence of the Federation; or

g. The President receives a request from a State Governor to do so.

What is the Order of Events to be Followed in Declaring a State of Emergency?

1. The President issues a proclamation of a state of emergency and publishes it in the Official Gazette.

2. Immediately after the proclamation is published in the Official Gazette, the President transmits copies to the Senate President and the Speaker of the House of Representatives.

3. The Senate President and the Speaker immediately arrange for meetings of their respective houses of legislature to consider the situation and decide whether or not to pass a resolution approving the proclamation of the state of emergency.

4. The proclamation of the state of emergency ceases to have effect –

a. If it is revoked by the President;

b. If the National Assembly fails to ratify it in each House (resolution supported by two-thirds majority) within 2 days (when the Assembly is in session) or within 10 days (when the Assembly is on recess) after the publication of the proclamation.

c. After a period of 6 months has elapsed since the proclamation came into force (the National Assembly can extend the period of the state of emergency for further periods of 6 months, as it deems fit).

d. At any time after ratification by the National Assembly, when each House of the National Assembly revokes the proclamation.

Must Governors be Suspended During States of Emergency?

While historically, Governors have always been suspended during periods of emergency, there is nothing in the Nigerian constitution that makes their suspension compulsory. The following question then is, how is military intervention in a State compatible with Governors remaining in office for the duration of the state of emergency? My answer to this (but this is not backed by any constitutional provision) is that the two are compatible in the instant situation for the following reasons:

1. The President has deployed soldiers to restore security to the various States. Security is not the only function of a State Governor. In fact, it is arguable (and perhaps even likely) that the Governor performs more administrative than security functions. Unless the affected States have completely ground to a halt, I do not see a reason why the Governor cannot continue to perform all his other functions outside security.

2. The militancy/insurgency is not taking place in every single square mile or local government area of the affected States. Many parts of the affected States continue to enjoy relative peace and normalcy. Should they be neglected because the army is fighting insurgents in pockets of the State? Should the delivery of governance to relatively unaffected areas not continue?

3. Consider that no American Governor has been suspended during periods of emergency. Not even during the manhunt for the bombers of the Boston Marathon.

4. Given that a Governor could request the President to declare a state of emergency in his State, it is unlikely (in this event) that the framers of the constitution conceived that a Governor would believe his suspension from office would be one of the outcomes of him making such a request.

Final Constitutional Question

There is the further question of whether it is even constitutional at all for Governors to be suspended during periods of emergency. Senior lawyers with much more constitutional knowledge and experience than me appear to believe that it is indeed unconstitutional; that a Governor may only be removed from office by impeachment, resignation, or on grounds of infirmity. I have a contradictory hypothesis (emphasis on hypothesis).

I would suggest, that while it is true that a Governor may only be PERMANENTLY removed by the previously-listed means, suspension from office while the period of emergency lasts is valid if ratified by the National Assembly. If a state of emergency is in effect a suspension of the constitutional order because of emergency circumstances, and the only restraint placed on the President in the constitution is that the details of the emergency rule must be ratified by the National Assembly, I think a case can be made for the validity of the temporary removal of an affected Governor from office. It remains a theory however – as is that of my renowned, most esteemed, learned seniors – until the courts are given the opportunity to rule on the question one way or the other.

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