Guardian

The Federal Government last Tuesday declared a state of emergency in three states of Adamawa, Borno and Yobe due to rising insecurity and breakdown of law and order. President Goodluck Jonathan, quoting Section 305 (1) of the 1999 Constitution in a nationwide broadcast, however, failed to remove the governors of the states, saying that they are to continue to discharge their constitutional duties. In this encounter, AUGUSTINE ALEGEH, a Senior Advocate of Nigeria (SAN) examined the issues involved and concluded that the president’s decision was in order.

ON whether the declaration, which allowed all the existing political structures in the affected states to remain, could be described as a true state of emergency, the learned Senior Advocate said: “The state of emergency as the term connotes is a state, whereby the president finds out that certain things inimical to public good have happened in any part of the country and then, decides to exercise his powers under Section 305 of the Constitution. But if you look at that section very carefully, you will find that it makes no provision for removal of political structures. It just said a state of emergency could be declared and if you understand that a state of emergency could be declared all over the whole country.

For example, if we are at a state of war, there is no necessity to remove the governors. What we are having is the hangover of the past, where we became used to the president declaring a state of emergency and removing the constitutionally established structures.

Was that correct?  Not at all! If you look at the Section 305, sub-section 4, it makes a provision that where a governor finds that there is a state requiring proclamation of emergency in his state, he seeks two-third concurrence of the House of Assembly and provided the Assembly passes a resolution, the governor can go ahead and request the president to declare a state of emergency in his state.

A state of emergency and the existence of political structure can co-exist. If the House of Assembly is empowering the declaration of the state of emergency, on what basis then do you remove members of the House of Assembly? Who is going to now say the situation has returned to normal and passed a resolution for there to be an end or continuation to the state of emergency.

So what the president has done is totally within the law. I find nothing wrong with it. I believe that it is a step in the right direction. We are now moving from the military mentality of the past to a democratic implementation of our constitution.”

What is the implication of this arrangement to governors who are constitutionally recognized as the chief security officers of their states?

He said: “The governors are the chief security officers of their states when there is no state of emergency and the Police Commissioner is not under the state governor. He is under the Inspector General of Police who reports to the President. So the way security has been structured in the country, there is no hard and fast rule about it. If the governor is in place and the Chief of Army Staff as had been directed now, sends troops to the state, the governor is still in a position to aid with the implementation of the security plan in that state. It is not as if the governor has his own security apparatus different from that of the state. When you look at the states in question, Joint Military Task Force (JTF) has been operating in those states; the governors have been supporting them. The only thing that has changed is that by the declaration of the state of emergency, the military movement in that area will be higher. Certain issues of right could be curtailed.

If there is a need to declare a curfew, it could be done and your right to move freely curtailed. Such things can happen, but the governor on his own, ordinarily doesn’t have any security apparatus he was running the state with before. He was working with the Police, the Army and the SSS. They are all federal agencies, all reporting to the president. So, I don’t see any challenge in that.”

On whether the declaration of the state of emergency would solve the problem of insecurity in those parts of the country, he replied: “When you ask me legal questions, I will answer, but when you ask me security questions, I am at a lost. The issue of what will work and what will not work is essentially a security question. I am not competent to say if a state of emergency will solve the problem. Honestly, I am not in a position to say that because if I do that, I will be shooting in the dark. We first of all heard that the president was meeting with his security chiefs. We must believe that this is the advice he received from his security chiefs. And if those who know security gave him the advice, they must have done that because they believe that it would work. But as to our own opinion to the workability of it or not, we just have to wait and see.”

The issue of amnesty had come up before the declaration. What becomes of the amnesty project with regards to the declaration and whether the security chiefs believe that option would not work?

Allegeh reacts: “The issue of amnesty has been so confused that the only person who has been able to put it in correct perspective was Bishop Hassan Kukah, when he made his comment at Governor  Adams Oshiomhole’s birthday. What he said was that an offer of amnesty was not a grant of amnesty. When you go to the Church (I am a Catholic), and the reverend father says those who want to confess their sins should come and confess. He has not said all his church members are sinners. But you have to take the offer first and confess. That is how I look at amnesty. The president to my understanding has offered amnesty. It is when people come forward to say I want to take advantage of this amnesty you have offered that various questions would now be asked. Assuming a man who had lived in any of the states had killed somebody in a motor accident, and he is declared wanted; and he comes out to say I want to take amnesty, even though it is an offer! I don’t think we should look at amnesty as if it is an offer at large. It is an offer; when you come forward to say I want to take advantage of the amnesty, it is then that the conditions for the granting of amnesty would be discussed.

So far, to my understanding, I don’t know what is happening on the security side. From information available, nobody has come forward to take advantage of the amnesty. But in most situations of conflict, amnesty has always been a useful tool to reduce tension and help solve situations.”

On the propriety of the committee set up by the president in respect of the amnesty offer, he said: “How would the president deal with the amnesty issue by himself? If there is no committee in place, who is now to determine those that are qualified for this amnesty? Whoever that wants to take amnesty, will the person approach the president directly? Now, there is a committee in place, if any person wants to take advantage of the amnesty offered by the president, the person now knows an identifiable committee that it can reach out to, discuss with and say I am accepting amnesty and these are my conditions. So, a committee is in furtherance of the global idea of an offer of amnesty and how it should be implemented. An amnesty without a committee in place would have been like a vehicle without an engine.”

On the issue of corruption in the judiciary, allegedly facilitated by senior lawyers, which the Chief Justice of Nigeria (CJN) bemoaned recently in Lagos, the Senior Advocate stated: “There are two schools of thought. Some people say all judges are corrupt! I don’t belong to that school of thought. I believe that if you find a judge that is corrupt, mention his name. To paint everybody with a black brush is wrong. If I say all judges are corrupt, I don’t think that the CJN herself would be pleased with such a comment. S, when you say senior lawyers, it is a wide spectrum of people. All we are saying is that to deal with corruption, we have to be open.

Secondly and very importantly, there has to be a change of our laws. Those things we call corruption are endemic and engrained in our system. Our system of hospitality breeds corruption naturally. Assuming I have a classmate who passed out at a very young age and I have become a judge and I see his son appearing before me, I will do all I can do to assist him. It’s by nature! But it is corruption. It’s engrained. And even when you go to America or Europe; when you hear about old boy’s connection – I went to Harvard or Oxford, you have a special tag you wear when you are going for an interview. Any member of that panel who went to that school will identify you with your tag. But what they have done in their case is that they have put some laws in place, that there is a limit to which you can exercise that discretion of favour. We are talking about corruption, but we have no bails Act. We have no sentencing law. You can have a statute that says two years for this offence, but you also have another called the sentencing law, which contains guidelines. We have been doing plea-bargain, we have no laws on plea-bargain. So, we give judges so wide latitude of discretion. That is what people are tapping into. Why can we not institutionalize measures that can make it impossible for people to act like that? Has any judge ever been punished for failure to follow precedents?  It is not considered judicial misconduct if you don’t follow precedents. It should be!”