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RECESSION: SANs, others split over emergency powers to deal with economy

By Bartholomew Madukwe

AS the Federal Government reassures Nigerians that it was doing everything to fix the economy and pull it out of recession, the issue of granting President Muhammadu Buhari emergency powers to move at the desired speed in repairing the economy has again come to the fore.

In this edition,  Vanguard Law and Human Rights sought the views  of lawyers on the desirability or otherwise of the National Assembly granting the President emergency powers and as expected, respondents are divided on the issue. Those who spoke are Prof Tahir Mamman SAN, Prof Bankole Sodipo, Chief Mike Ozekhome SAN, Mr Lawal Pedro, SAN, Chief Morah Ekwunoh and Mr Monday Ubani. Excerpts:

IT’S misnomer to call those legislative amendments emergency powers

Prof Tahir Mamman, SAN, former DG, Nigerian Law Sch and Vice Chancellor of Baze University.  It is actually a misnomer to call those legislative amendments ‘emergency powers’ because there is nothing emergency therein. Nothing in it too confers on the president any specific powers per se. They are amendments designed to reduce bureaucracy in the services of the organisations affected.

L-R: Chief Ozekhome, SAN, Prof Mamman,  SAN & Mr Pedro,  SAN
L-R: Chief Ozekhome, SAN, Prof Mamman,  SAN & Mr Pedro,  SAN

Much of the problems affecting the development of Nigeria are the suffocating procedures and  times lost in the operations of government activities. It has contributed immensely to Nigeria’s lack of competitiveness in the international scene.

Again, Nigerians are urging the president to move fast on the economy. These desires for quicker development  can only be achieved through fast and efficient procedures in Nigeria. It is my view that the president is well on track with these procedures. It was a mistake on the part of the drafters to have used the word ‘emergency’ in the amendments.

Emergency powers can only exist if it is in line with section 305 of the Constitution

Prof Bankole Sodipo, former Dean of Law at Babcock University –  Babcock University.  Emergency powers presuppose powers that can be exercised in situations that are regarded as emergency. These powers may include powers to pass laws through the National Assembly without the prescribed number of readings and public hearings of the bills. The Nigerian Constitution only recognises the possible emergence or existence of such presidential powers if they are in line with section 305 of the constitution.

Section 305 of the Constitution vests President Buhari with powers to declare a state of emergency. Where this is validly declared, the powers outlined in the Act declaring the state of emergency can be exercised by the President.

However, this presidential power can only be exercised subject to following prescribed constitutional procedure that includes the approval of the Senate and the House of Representatives and the power can only be exercised within the prescribed conditions enumerated by the Constitution. Failure to follow the prescribed procedure will make the declaration of a state of emergency procedurally ultra vires.

Prescribed conditions

It is also ultra vires the powers of the president to attempt to declare a state of emergency outside the conditions prescribed under the constitution. President Buhari cannot go outside these conditions.

The procedure Buhari has to follow is to publish an official gazette with a proclamation of a state of emergency and he has to include the details of the emergency and send this to the President of the Senate and the House of Representatives, who must convene a meeting of their respective Houses to pass a resolution approving the proclamation.

The conditions stipulated by section 305(3) of the Constitution are that: the Federation is at war; the Federation is in imminent danger of invasion or involvement in a state of war; 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; 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;

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; there is any other public danger which clearly constitutes a threat to the existence of the Federation; or the President receives a request to do so from the governor of a state,    who has similar situations in his state and has obtained the sanction of a resolution supported by two-thirds majority of his House of Assembly.

It is very doubtful if the economy can fit into the foregoing provisions of sections 305[3] that circumscribe the conditions when the President can proclaim a state of emergency. It is not enough to demonstrate that there is an economic meltdown. The President has a herculean task to convince the National Assembly that the economic situation (recession) threatens the existence of the nation or will lead to a breakdown of public order.

Doing otherwise would amount to over stretching the areas where the president can exercise emergency powers as envisaged by the constitution. If he cannot demonstrate that Nigeria is in the situations envisaged by the Constitution, any attempt to proclaim a state of emergency will be ultra vires the President and will need a Constitutional amendment. We urge caution on the part of all Nigerians in case the economic situation poses a threat to our democracy. Long live the Federal Republic of Nigeria.

Maximalist power

Chief Mike Ozekhome, SAN, right activist.

Emergency powers to do what?  To further impoverish an agonising populace of helpless Nigerians with dictatorial policies that no one can challenge?  I don’t support such maximalist and dictatorial powers for an authoritarian all-knowing  government that has shown utmost intolerance of opposition, dissent of opinion and plurality of ideas as to how to move Nigeria forward.

Let them sell off three quarter of the presidential fleet, reduce their funny and phoney   budget for the State House, etc, then we will know they are serious.

With the way things are now in the country, I think there is need for Emergency Power

Mr Lawal Pedro SAN

The emergency power may be used for good intentions, but if it is abused, what do you do? Nigeria is in a serious economic recession now and anything that will lift us out of it is welcomed. My only fear in it is it’s abuse.

With the way things are now in the country, I think there is need for emergency power to be granted to President Buhari because we cannot continue the way we are now. We must find a way out.

Emergency Power won’t inject any magical oxygen for immediate resuscitation of the economy

Chief Morah Ekwunoh

Certainly, solemn, but hard, distillation of the present quest for presidential economic emergency powers presents same as a legal and, even, extra-legal non sequitor, which calls for serious worry and concern by, and amongst, well-meaning Nigerians.

In the main, donation or devolution of such sweeping powers, including powers to set aside some extant laws and deployment of executive orders, is not only unprecedented but completely antithetical to our nascent democracy, constitutionality and rule of law, such that it can unwittingly lend itself to wide abuses, as was the rule, rather than exception, during Obasanjo’s era, when governors on the black books of the central government were hunted, hounded and removed, under the guise of exercise of emergency powers.

Sweeping powers

And, in this respect, temperament of the current government towards democracy, constitutionality and rule of law does not, most unfortunately, inspire honest hope and expectation of non-subjection of such sweeping powers, if and when given, to deployment as swords of abuses, rather than shields of protection of Nigerians, whom they should be intended to benefit and improve their well-being.

Secondly, exercise of emergency powers, assuming, but not conceding, their sterility of abuses, do not inject any added iota, semblance or modicum of magical oxygen for immediate resuscitation of the economy, since the president, in a presidential system of government, which we run, is already sufficiently vested with, and clothed in, enormous powers, such that the quest for express grant of added emergency and sweeping powers is, clearly ill-conceived and an unnecessary executive powers.

What are needed, I posit, include, without limitation to, serious rejig of the current economic team, focus, with all eyes on the economic ball, and deepest of thought, even from outside the box, all being done without allowing dusts from raging fights against corruption cover the government’s eyes in these respects.

If past governments never thought or dreamed of economic emergency powers, I join those who oppose this horse gift of Greek origin from a government which appears impervious to tenets of democratic principles, constitutionality and rule of law. Bill relating to their quest, being non sequitor, should be made dead- on- arrival.

On pontification that amendment of extant laws is a condition sine qua non for grant of such quest for, I agree with them, pronto and in toto, since such laws already in place cannot exist pari passu with the Act granting the economic emergency powers, in the terms sought.

I support call for emergency power for restoration of our economic prosperity

Mr Monday Ubani

If you see what we are suffering now as a result of economic problems, I think some of our laws have become hindrance to the actualization of reviving the economy. What I understand President Buhari wants to do is that, like the issue of Procurement Act, remove the number of days before you can award contract.

Emergency power that the president is seeking for won’t be forever but a certain time to enable him carry out acts that would actually revive the economy.

People are suffering and price of food items are very expensive. If the emergency power will make President Buhari take any action that will cut short all those processes in awarding contract and make Nigerians have enough food on their table, then I am totally in support of it.

If the emergency power is for the restoration of economic prosperity to Nigerians, I am in total support of it and there must be a time limit. I do not think the emergency power is for abrogation of fundamental human rights. Fundamental human rights cannot be abrogated by any law.


Disclaimer

Comments expressed here do not reflect the opinions of vanguard newspapers or any employee thereof.