On Tuesday, May 20, the Senate in the exercise of its constitutional powers under Section 305(6)(c) of the Constitution endorsed a six month extension of the proclamation of the state of emergency in the north-eastern states of Adamawa, Borno and Yobe on eight separate conditions read out by the Senate leader, Victor Ndoma-Egba (SAN). The conditions as communicated and reported by the Nigeria media include:
a) Expansion of the cooperation and collaboration of the International Community with a view to arresting the ugly incidence of terrorism in Nigeria.
b) Proper kitting, arming, welfare and care of the Nigerian Armed Forces and troops deployed to arrest the insurgency.
c) Sustained military operations in order to rout out the insurgents.
d) Special recruitments into the Armed Forces of screened and vetted youths particularly those in the civilian JTF (Joint Task force) who will receive emergency training and be deployed in the troubled zones in order to beef up the strength of our troops.
e) Federal Government in conjunction with the state governments to come up with an economic marshal plan to revive the economy of the economically and educationally backward parts of our country.
f) Monthly progress report to the Senate by all security agencies including the Ministers of Defence, Police Affairs, Service Chiefs, NSA, DG, SSS on the basis of which the Senate can review or possibly revoke the proclamation of the state of emergency.
g) The President should prepare and submit to the National Assembly supplementary budget to meet any establishment financial requirements needed to combat the insurgency (Although there is no substantive budget yet). Emphasis mine.
h) The President should immediately approve intervention funds to the affected states for development.
Desirable as the above conditions may be particularly on the need to meet the security exigencies of the moment, predicating such an extension on any condition(s) whatsoever is against the express provisions and spirit of Section 305(6)(c)(d) of the 1999 Constitution. It is accordingly, illegal, null and void and of no effect or moment. The prerogative to issue a proclamation for a state of emergency under Section 305 of the Constitution is exclusively that of the President. To be sure, Section 305(2) accords the National Assembly a complementary role after the issuance of the proclamation and transmission thereof to consider the situation and decide whether or not to pass a resolution approving the proclamation. The conditions that would exist and justify such proclamation by the President are as set out under Section 305(3)(a-g). It is also correct that the National Assembly can withdraw its approval of the proclamation within two days when in session or ten days when it is not in session in which case the proclamation ceases to have effect.
It follows therefore that if they cannot proclaim a state of emergency but can only extend or revoke, they surely cannot give conditions for the extension of the already proclaimed state of emergency. At any rate, in what manners are the condition(s) expected to operate? Are they conditions precedent or subsequent? If they are conditions precedent, it means the endorsement for the extension will only become effective upon the fulfillment of those conditions. On the other hand, if they are intended to be conditions subsequent, it would mean that the endorsement for extension already given is ineffectual because those conditions are yet to occur or materialise.
The Constitution did not envisage a situation in which the executive would exercise its powers under Section 305 based on conditions imposed by the legislature.
Malachy Ugwummadu Esq.,
Adelabu Street,
Surulere, Lagos.