Politics

Governors lack powers to impose curfew –Brig Gen Ikponmwen

Since the hijack of the #EndSARS protests by some irate Nigerians and the widespread violence that ensued, many governors have imposed curfew on their states in a bid to restore law and order. However, a lawyer and former Provost Marshal of the Nigeria Army, Brig. Gen. Idada Ikponmwen (rtd) tells ONWUKA NZESHI that these governors proceeded in error as they lacked the powers to declare curfew in their respective states

Can governors impose curfews or declare a State of Emergency? If yes, under what conditions?

A State of Emergency in the Nigerian context is invoked as a means of the suspension of citizen’s rights and freedom guaranteed under the Constitution. Due to the sensitive and critical implication of this proclamation, it is imperative to rely on constitutional provision(s) as a guide.

 

Section 305 (1-5) of the 1999 Constitution of the Federal Republic of Nigeria provides that:(1) Subject to the provisions of this Constitution, the President may by instrument published the Official Gazette of the Government of the Federation issue a Proclamation of a State of emergency in the Federation or any part thereof.

 

(2) The President shall immediately after the publication transmit copies of the Official Gazette of the government of the federation containing the proclamation including the details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of who shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the proclamation.

 

(3) The President shall have power to issue a Proclamation of a State of emergency only 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 an 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 any other public danger which clearly constitutes a threat to the existence of the federation; or (g) the President receives a request to do so in accordance with the provisions of subsection (4) of this section.

 

(5) The president shall not issue a proclamation of a state of emergency in any case to which the provisions of subsection (4) of this section apply unless the Governor of the State fails within a reasonable time to make a request to the president to issue such proclamation. In essence, the governors are to within a reasonable time communicate to the President any of the situations in Subsection (3) and not to take unto themselves the power to declare a State of Emergency in their states no matter the peculiarity of the situation. It is only the President, after a resolution is passed by the National Assembly, and no one else, that can issue a proclamation of a State of Emergency in the Federation or any part thereof.

 

 

What is the procedure for the declaration of a State of Emergency?

 

The 1999 Constitution in Section 305 (1) & (2) provides expressly the procedural steps the President is mandated to take in issuing a Proclamation Order in any part of the Federation. Sub-sections 1 and 2 of the above Section are clear on this point. These sections state thus: (1) Subject to the provisions of this Constitution, the President may, by instrument publish the Official Gazette of the Government of the Federation issue a Proclamation of a State of Emergency in the Federation or any part thereof. (2) The President shall immediately after the publication transmit copies of the Official Gazette of the Government of the Federation containing the proclamation including the details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation. In summary, by the clear wordings of the above section, the President’s power to issue a proclamation of a State of Emergency in any state of the federation must be approved by a resolution of the National Assembly before such proclamation can be said to be legally made by the President. Anything short of this requirement would be an aberration which amounts to a gross violation of the Constitution particularly Section 305 (2).

 

When does a proclamation of State of Emergency terminates or ceases to have effect?

 

Section 305(6) of the Constitution elaborately provides that when the proclamation of a State of Emergency issued by the President will cease to have effect:(a) if it is revoke by the President by instrument published in the Official Gazette of the Government of the Federation; (b) If it affects the federation or any part thereof and within two days when the National Assembly is in session, or within ten days when the National Assembly is not in session, after its publication, there is no resolution supported by two-third majority of all the members of each House of the National Assembly approving the proclamation; (c) after a period of six months has elapsed since it has been in force; provided that the National Assembly may, before the expiration of the period of six months aforesaid, extend the period for proclamation of the State of Emergency to remain in force from time to time for a further period of six months by resolution passed in like manner; or (d) At any time after the approval referred to in paragraph (b) or the extension referred to in paragraph (c) of this subsection, when each House of the National Assembly revokes the Proclamation by a simple majority of all the members of each House.

 

So, without courting any controversy, a state of emergency will cease to have any operational effect in any part of the federation when the President revokes the said proclamation or if the National Assembly fails or refuses to pass a resolution to revoke the proclamation after a period of six months since it has been in force.

It is worthy of note that the National Assembly may extend the period of the State of Emergency before the expiration of the six months period by a resolution of the House.

 

What are the limitations of the power of the President to issue a State of Emergency?

 

Although Section 218 of the Constitution pronounced the President as Commanderin- Chief of the Armed Forces of the Federation, and Section 305 further grants the President the power to declare a State of Emergency within any part of the federation,

 

it is not to say that this power is not without its checks and limitations. Section 305 (2) expressly provides without any ambiguity that the National Assembly must pass a resolution before the President can be said to have made a legal and binding proclamation of a State of Emergency in the Federation or any part thereof.

The rationale behind the limiting powers of the President to issue a Proclamation Order is based on the spirit of checks and balances which is a core aspect of the federal system of government practiced in Nigeria. In the same vein, the powers of the President to make a Proclamation Order of a State of Emergency must strictly be within the circumstances envisaged by the Constitution as provided in subsection (3) of the 1999 Constitution.

 

Can state governors issue a proclamation of a State of Emergency in their respective states?

 

As always, we can only understand if the governors are empowered to declare state of emergency or what they call curfew by looking at relevant constitutional provisions. Section 305 of 1999 Constitution, is explicit to the effect that it is only the President that can issue a proclamation of a State of Emergency. Sub-Section 3 states inter-alia:

 

“The President shall have power to issue a Proclamation of a State of Emergency only 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 and all the conditions mentioned earlier.

 

(g) The President receives a request to do so in accordance with the provisions of Subsection (4) of this section.”

 

It is not intended by the provision of Section 305 of the Constitution that a governor in a state of the federation should issue a proclamation of a State of Emergency.

(3) Sub-Section 4 is to the effect that a governor of a state may, with the sanction of a resolution supported by two-thirds majority of the House of Assembly, request the President to issue a Proclamation of a State of Emergency in the state when there is in existence within the state any of the situations specified in Section 305 subsection (3) (a)-(e) of this section.

 

The governor is to take steps within a reasonable time to make request to the President to issue such proclamation. The President may as the Commander-in-Chief of the Armed Forces instructs the Armed Forces to carry out any or all of the functions in Section 217(2) which provides as follows:

[2] The federation shall, subject to an Act of the National Assembly made in that behalf, equip and maintain the Armed Forces as may be considered adequate and effective for the purpose of- [a] defending Nigeria from external aggression; [b] maintaining its territorial integrity and security its borders from violation on land, sea, air; [c] Suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the president, but subject to such conditions as may be prescribed by an Act of the National Assembly

It is pivotal to note that in a bid to suppress any act of insurrection as provided in sub (2) (c) the President may order the deployment of the Armed Forces (which includes the Military) which may amount to the extraordinary use of the Military for the purpose of maintaining law and order in any part of the Federation, thus playing an internal security role.

In other words, no Governor has the constitutional power to issue a proclamation of a state of emergency in any part of their States. The President reserves the sole constitutional powers to make such order in the federation or any part thereof.

 

What is the legal/constitutional authority for state governors to impose curfew in their respective States?

 

It is hard to find any explanation for the power of the state governors to impose curfew in their states within the provisions of the Constitution, particularly Section 305 of the 1999 Constitution. Our argument is further supported by Section 215(3) which states: “The President or such other Minister of the Government of the Federation as he may authorize in that behalf may give to Inspector General of Police (IGP) such lawful directions with respect to the maintenance and security of public safety and public order as he may consider necessary, and IGP shall comply with those direction or cause them to be complied with’’.

 

The above rendering of Section 215(3) is to the effect that the Police are under the command of the IGP and the President. What is more, Section 218 makes it abundantly clear that the President is the Commanderin- Chief of the Armed Forces and therefore rendering the Armed Forces not answerable to any governor or any state official, no matter how highly placed. The question is: if the armed forces and the police are not under the command of the governors, how then can governors impose a curfew which they have no means of enforcing?

 

The Constitution must be deemed to have said all it meant to say about insurrection, breakdown of law and order clearly stating how it is to be dealt with. This power to deal with insurrection is the exclusive preserve of the President and the National Assembly and no one else.

 

Therefore, it is abundantly clear that no governor can derive the power to deal with this phenomenon of breakdown of law and order or insurrection from any other source of our law if any, because the Constitution being the Supreme Law cannot be contradicted, as such contradiction to the Constitution is deemed null and void and of no effect. My submission therefore, is that no governor reserves the power to order a curfew in his state or any part thereof.

 

What are the roles and duties of the Armed Forces of Nigeria under the Nigeria Constitution?

 

The roles and duties of the Nigeria Armed Forces are clearly spelt out in Section 217 of the Constitution as follows: (1) There shall be an Armed Forces for the Federation which shall consist of an Army, a Navy, an Air Force and such other branches of the Armed Forces of the Federation as may be established by an Act of the National Assembly.

(2) The Federation shall, subject to an Act of the National Assembly made in that behalf, equip and maintain the armed forces as may be considered adequate and effective for the purpose of –(a) defending Nigeria from external aggression; (b) maintaining its territorial integrity and securing its borders from violation on land, sea or air; (c) suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the president, but subject to such conditions as may be prescribed by an Act of the National Assembly; and (d) Performing such other functions as may be prescribed by an act of the National Assembly.

 

By virtue of Section 217(2) (c) there are basically three responsibilities for the Armed Forces of the Federal Republic of Nigeria: The first is to protect the nation from external aggression, and the second is to secure the territorial integrity of Nigeria from violation, on Land, Sea or Air. These first two duties have hardly ever been in doubt.

 

The real issue of worry is the third responsibility of calling in the military on the occurrence of insurrection. “Section 217(2) (c) suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the president, but subject to such conditions as may be prescribed by an Act of the National Assembly”.

 

The wordings of this section makes it clear that this section conveys the extraordinary use of the military in its Law and Order role can only be invoked not just in case of mere infraction of the law but the uprising must be in the nature of insurrection otherwise referred to as “domestic was” The justification for resorting to this measure is predicated on the need for an approval by the National Assembly for the extraordinary use of the Military to restore law and order.

 

It is apposite to state Section 305 (3) (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.”

 

The above provision co-relates and complements Section 217 (2) (c) and that these two sections read together lead inevitably to the conclusion that military forces cannot be called in unless a state of emergency has properly been proclaim in Nigeria or any part thereof. Without any doubt, therefore, those who drafted the Constitution intended to keep the military out of public glare and out of routine law enforcement duty, which are the responsibility of civil law enforcement agency, as required in a civil democracy.

 

Can any member or detachment of the Armed Forces be placed under the command of state governors or state official under any circumstance?

 

The President is the Commander-in-Chief of the Armed Forces of the Federation and shall determine its operations. No branch of the Armed Forces can be placed at the disposal of civil/state authorities no matter how highly placed; Military Order and Civil Order are two distinct disciplines.

 

Civil authorities are not in a position to understand the language and laws that guide the military, nor do they understand the nature of the lethal (deadly) weapons and equipment that the military can unleash.

 

The dangers of exposing military men to the command of civilians or civil authorities are too enormous to explain in a short interview like this. In America whose system of government we have adopted the Constitution forbids it and the parliament has since passed several laws to forbid it – See for example

 

The Posse Commitatus Act of 1878 As Amended. For over 10 years my colleagues and I in the Army Legal Services, in the Army School for Military Police and in the Army Training and Doctrine Command (TRADO), left no doubt in the mind of the Army high command as to how to run the Army under a democratic system.

We do not know how these ideals became lost to our rulers since 1999 but it is worrisome that they set these ideals aside. In essence, under no circumstance does the Constitution or any other law empower governor(s) to issue command to Armed Forces.

 

The power of deployment of military personnel to the states is at all times the preserve of the President of Nigeria, until an amendment is made to the Constitution. That remains the position of our constitution.

 

It is beyond argument that successive Nigerian governments have not been running the country in conformity with our Constitution. Over the years, there have been overwhelming cases of flagrant disregard to extant laws and constitutionally entrenched due process. It is ironical that governments that do not follow the Constitution nor obey court orders expect the citizens to be law – abiding.

 

This is the height of hypocrisy, insincerity and inconsistency which must be condemned by all well-meaning Nigerians.

 

 

 

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