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Nana Nwachukwu: #StateOfEmergency: The implications for security, human rights and rule of law

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Nana Nwachukwu: #StateOfEmergency: The implications for security, human rights and rule of law

by Nana Nwachukwu

The President of Nigeria declared a State of Emergency in Yobe, Adamawa and Borno States on the 14th of May 2013. There have been several questions arising from the speech declaring the State of Emergency.

What is a State of Emergency declaration and what prompts it?

Section 305 of the Constitution did not define what a State of Emergency is. This lacuna is filled from the situation at hand, other provisions of the Constitution as regards human rights and several Human Rights Charters of which the Nation is a party to.

From governance, it can be seen that peace may not be steady and that there are certain areas of a controlled region that could be at some point engulfed in deep crisis which if left unattended, often results in a massive loss of lives and properties and could extend to other controlled regions with the violence spreading like wild fire. At such times, it becomes necessary to limit or suspend the rights of individuals who reside in that location in other to restore peace.

In the Nigerian example, the President and the State Governors are empowered under Section 305 of the Constitution to issue a State of Emergency proclamation. We have had series of killings attributed to the Boko Haram sect. The sect has seemingly held citizens and the Government to ransom and has destroyed lives and properties with wanton disregard. The trail of their violence was not contained by the Borno State Government neither did the State Governor issue a State of Emergency proclamation as required by Section 305(4) of the Constitution. This violence which was uncontained spread beyond the boundaries of Borno State and has in the past nearly sacked the city of Kano. The Federal Capital Territory also had its share of the Sect’s ire visited on it. Several Northern States have been gripped by the sect’s violence.

Owing to the spread of violence from one state to another, the President exercised his discretion to proclaim a State of Emergency.

IMPLICATION

On security;

The President stated in his proclamation that the State Governors of the States affected would continue their ‘normal’ constitutional duties. This is dicey. It is true that a State of Emergency can only be defined by the President. This is as a result of a lacuna in the Constitution. Let me analyse this thus;

  1. When a Country is in an emergency situation, it implies that things are not normal.
  2. When a president proclaims a State of Emergency, it means that the Governors of the affected states are not able to contain the security situation in their various states hence the spread of violence.
  3. Part of the normal constitutional duties of the State Governors is to maintain security in their states.
  4. State Governors are given a certain amount as security vote
  5. The expenditure of the Security votes are not questioned
  6. These State Governors did not call for a State of Emergency in their states

From the afore analysis, if the State Governors keep their normal constitutional duties, it implies that they still receive control the security situation except that they have more armed forces to help. It also means that they have this ‘security vote’ available for their expenditure. Follow my train of thought here. There is a sect that thrives on money and there is money unaccounted for yet you leave the person in charge of the money unaccounted for to remain in his position in a State of Emergency?

On human rights;

Nigeria is a state party to two charters which I choose to call conflicting. The first is the International Covenant on Civil and Political Rights and the second is the African Charter on Human and Peoples Rights. In the ACPR, state parties (countries) are not permitted to rely on emergency situations (including civil war) to derogate from legal obligations to protect rights[1].

The ICCPR on the other hand, permits the derogation from legal obligations in cases of emergencies in Article 4(1);

It provides that:

“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”

However, Section 45(2) of the Nigerian Constitution permits derogation in times of emergencies only to the extent sufficient to deal with the emergency at hand. So do not be shocked when your rights are trampled on except your right to life which is non-derogable meaning no one can be killed arbitrarily even in emergencies.

On Social sphere;

I have seen issues being raised where there is a comparison between the State of Emergency declared by Former President Obasanjo and that declared by President Jonathan. Some have alluded to the assumed unlawful way Obasanjo sacked the Governors while others have made jabs at the weakness of the President Jonathan in keeping the Governors.

The law has this to say; a State of Emergency remains strictly undefined and can only be defined by the President making the proclamation. It is left to him to include measures that he believes would quell the insurgency at the moment. Whether it is too much or too little is left for posterity and the people affected to judge.

Follow this writer on Twitter: @purehaire



[1] Commission Nationale des Droits de l’Homme et des Libertés v. Chad, Comm. No. 74/92, (October, 1995) <http://www.achpr.org/files/sessions/18th/comunications/74.92/achpr18_74_92_fra.pdf> accessed 15th May, 2013

Find translation here: <http://bit.ly/106h6gO >

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