The mandatory two days required for the National Assembly to approve the emergency rule in Borno, Adamawa and Yobe states elapsed on Thursday without a formal notification from President Goodluck Jonathan to federal lawmakers, leaving a web of confusion whether or not, a vital constitutional requirement was breached.
Lawmakers and lawyers shelved an overwhelming euphoria that have trailed the emergency rule, to accuse the President of violating basic requirements in imposing emergency order, pointing out what may turn out tools for potential challengers of the order.
“I’m not contented with the whole arrangement because of the way he declared it and did not follow due process. He was expected to notify the House,” Ibrahim Kamba, a House of Representatives member from Kebbi state said on Wednesday.
The senate confirmed on Thursday it had yet to receive a published gazette, as stipulated by the constitution, through which the proclamation of the emergency rule ought to have been made.
The senate’s position is founded on Section 305 of the constitution, which states that “Subject to the provisions of this constitution, the President may by instrument published in the official gazette of the government of the federation issue a proclamation of a state of emergency in the federation or any part thereof.”
The succeeding sub section requires that “copies” of the published gazette be “immediately” sent to the senate and the House for consideration and possible approval. Such approval is expected in two days if the lawmakers are in session, or 10 days, if they are on break.
Senate yet to be notified
At a news conference, Thursday, Senate Leader, Victor Ndoma-Egba, repeatedly emphasized those requirements in remarks that eventually turned out contradictory.
Before he spoke, confirming no notification had been sent in from the presidency, Senate president, David Mark, announced the emergency rule will be considered by the senate for possible approval next Tuesday.
“It is not a nation-wide broadcast by the President that proclaims a state of emergency,” senate leader, Mr. Ndoma-Egba said. “It is the instrument published in the gazette “We have not seen any gazette.”
Yet, despite the denial, and somewhat conflicting signals, the President’s emergency order is deemed to have taken effect, with large scale military deployment into Borno, Yobe and Adamawa states.
By mid Thursday, deployment of troops and military hardware, including fighter jets continued, a day after the military confirmed in a statement it was taking broad measures to implement the President’s decision.
Reuters news agency quoted Air Force spokesman, Air Commodore Yusuf Anas, as confirming that “air assets”, including helicopter gunships as well as jets, had been sent in support of the extra troops being deployed for the operation.
Military raids were also reported the same day in Sambisa, Borno state, which is said to host one of Boko Haram’s largest camps.
But as the operations rapidly drew steam, lawmakers and lawyers increasingly drew public attention to purportedly defective procedures adopted by the President to impose the emergency.
No State of Emergency yet
Mike Ozekhome, a senior lawyer, said on Wednesday, a day after the announcement, that the President’s declaration violated the constitution’s requirement for a published gazette which he said should indicate the President’s intention to declare state of emergency. That was never done, Mr. Ozekhome said.
Another stipulation requiring the National Assembly to sit at a plenary session to decide if there was need for declaration of the state of emergency was also violated, he added. “Therefore, Section 305 of the 1999 Constitution was not obeyed before the proclamation of the state of emergency by President Goodluck Jonathan,” Mr. Ozekhome said.
“I would therefore say that since he did not follow due procedure, it is not a declaration of state of emergency, but an adoption of stiffer measures for the protection of lives and property in those states.’’
Lagos Lawyer, Jiti Ogunye, gave a similar view saying, “As at today (Thursday), by law, there is no State of Emergency until it is approved by the National Assembly.” “If the National Assembly does not accept it, then that it is the end of Jonathan’s State of Emergency,” he added.
Mr. Ogunye, however explained that the massive movement of troops by the military to the affected states does not amount to a constitutional violation; saying that as the Commander in Chief of Nigeria’s Armed Forces, President Jonathan can direct troop movement within the country.
Jonathan only gave an intention
The senate leader, Mr. Ndoma-Egba, struck a similar note though, with an apparent caution. “The best we can make about what the President has done is that he has declared his intention to declare state of emergency. That is what he has conveyed to Nigerians,” he said. “He has conveyed his intention to declare a state of emergency. That State of emergency will be actually declared when an instrument proclaiming it is published in a gazette.”
He said the two days deadline for the National Assembly to pass a resolution in support of the State of Emergency starts running after the publication of the instrument in a gazette.
Despite the seeming violations, Mr. Ndoma-Egba insisted the President did nothing wrong and was acting in line with the laws. “There is nowhere in the constitution where the President is required to publish the gazette within a specific time,” he said, before asserting that “For now, no provision of the constitution has been breached and there is no constitutional crisis.”
