Saturday, December 31, 2011

USA Africa Dialogue Series - It's the security, stupid!

Saturday, 31 December, 2011
It's the security, stupid!
There is nothing more frustrating for Nigerians right now than watching President Goodluck Jonathan make a hash of the national security situation, especially with his handling of the Boko Haram insurgency. His latest gimmick of declaring a state of emergency in parts of some states in the North is another shambolic response to a situation demanding more robust, honest and well-considered action. It would seem that all we've got after the latest round of bloodletting is another emission of hot fumes from the presidential Olympus!
First, the President declares a state of emergency in 15 Local Government Areas across 4 states. Why such piecemeal approach this late in the day? Why, when these are not the only Local Government Areas or States where there have been incidences of violence and terrorist activities? What criteria did the President adopt to make this declaration?
Secondly, what does this declaration mean in concrete terms? I mean, this is the first time the President would be making a declaration that isn't state-wide in each case, so what happens to civil administrations and civil liberties in these Local Government Areas, especially as it would seem the declaration makes no provision for any type of change in civil administration? Does the declaration only mean the deployment of law enforcement agencies in these areas? If so, what has prevented the deployment before now? In essence, what is the purpose of the declaration of a state of emergency if all it means is the deployment of law enforcement agents?
Thirdly, the President says the temporary closure of the borders between Nigeria, Niger and Chad is "part of the overall strategy to overcome the current security challenges", but how? If the idea is to stop terrorists crisscrossing borders, it does not help that not all the Local Government Areas affected contiguous to the land borders with these countries are under the state of emergency, thus still giving terrorists free movement across borders elsewhere. Or does singling out of Local Government Areas in Bornu, Yobe, Plateau and Niger while ignoring the fact that Bauchi, Jigawa, Gombe, Adamawa, Kaduna and Kano have been hotbeds of terrorism as well not undermine the whole strategy?
What this type of piecemeal and half-hearted declaration of state of emergency does is to disperse and germinate the rebellion further and make it difficult for newly affected areas to cope with it, especially as there is an obvious lack of overarching security strategy. I mean, telling Nigerians on the last day of 2011 that the presidency is only now just thinking of setting up "a special force unit within the Armed Forces, with dedicated counter terrorism responsibilities" is alarming! Why has this not been done all these years considering we have had problems with terrorism, even long before the Boko Haram insurgency reared its head?
Lastly, the President's declaration may have breached the provisions of Section 305 of the Constitution of the Federal Republic of Nigeria (1999) dealing with procedure for a declaration of a state of emergency. The President says he is issuing the proclamation under Section 305 (1) of the Constitution which states: "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". This means the President cannot just wake up and declare a state of emergency based on this provision as President Jonathan has done, because activating this provision is subject to other provisions of the Constitution, all of which are clearly stated in Section 305. Section 305 (2) makes clear that an announcement isn't the first part of the process, instead the President will first have to publish this in the Official Gazette of the Government of the Federation, which then becomes the instrument of the Proclamation. The Constitution did not say a mere announcement is sufficient.
Again, the President does not just get to gazette this and proclaim, except certain conditions are met. In other words, there must be a condition precedent. Section 305 (3)(a) –(g) lists these conditions, any of which would be sufficient to give the President a reason to begin the process of the declaration of a state of emergency:
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.
Section 305(4) referred to above makes clear that the process of declaration begins democratically in the State with the Governor putting this before the House of Assembly, which must sanction it with a two-thirds majority vote. According to the provision: "The 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 subsection (3) (c), (d) and (e) of this section and such situation does not extend beyond the boundaries of the State". To make it clear that the President cannot just act on his own without the process of Section 305(4) having been first explored, Section 305(5) declares: "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".
However, there are those who would argue that Section 305 (4) & (5) cannot apply here, because the situation has extended beyond the boundaries of one state. Even if we concede that (because the Constitution is silent in a situation where the problem is in more than one state), we are still left with the considerable problem of the unconstitutionality of a mere announcement masquerading as a Proclamation when this is yet to be in the Official Gazette or passed by a resolution of the National Assembly. So, in essence what the President has done now is effectively a nullity until the National Assembly reconvenes on 3 January, 2012 and by virtue of Section 305(6)(b), if they reconvene then, they will have to pass a resolution approving the Proclamation within two days. If they fail to do this, this proclamation will have no effect.
Personally, I wouldn't want to make too much of an issue of these procedural failings by the President. He can quickly get these corrected before the National Assembly reconvenes by putting this in the Official Gazette and passing it to the National Assembly as required by the Constitution. Of course, there are those who would argue that the President hasn't said his Proclamation is effective yet and that I may be jumping the gun by accusing him of unconstitutionality. To these persons, I once again direct to the provisions of Section 305 (1) & (2). The Constitution is clear under what instrument and through what publication this type of news ought to reach the National Assembly and Nigerians. It is not only by a mere announcement. The Constitution is also clear that the President should "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". Making such a Proclamation when the National Assembly is on recess means they cannot be dealing with this immediately, which calls to question why such a Proclamation is being made now. Why didn't the President wait until 3 January, 2012 and simply follow the Constitution and pass it to the National Assembly? What exactly does he aim to achieve by proclaiming it now?
At any rate, I find all of this a charade. In July 2011, some of us got together and sent a Petition to the President, making certain proposals to deal with the issue.
The President, as usual, ignored this and carried on as though we have no problem. We have since had the bombing of the UN offices and the escalation of terrorist activities of Boko Haram, culminating in the Christmas day bombing of a church in Abuja. This response by the President will not do.
Of course, we will patiently wait to hear the details of the Proclamation to be transmitted to the National Assembly, but it is obvious that what the President is calling "decisive measures necessary to restore normalcy in the country especially within the affected communities" do not look adequate. Also, treating this now as only affecting some communities would be minimalist. The whole of the country is affected and a nationwide security overhaul is what is needed. The President must know that the counterterrorism unit of the Armed Forces he is just trying to put in place now will take quite sometime to be deployable, as officers will need to be chosen, trained (some of them abroad) before being deployed. The unit itself will, apart from operationally getting itself prepared as soon as possible, be administratively astute enough to meet the challenges of new security demands without being unduly bogged down by bureaucracy, even as its actions must be seen not to be against the rule of law. Yet, all this is still sort of long-term.
What the President ought to be looking at right now is how to effectively checkmate the activities of terrorists by using the people they are terrorising against them, including establishing a fast-track judicial process that must still meet the standards of the rule of law. Nigerians are yet to be convinced that the administration at any level is committed to dealing with the problem of security holistically and genuinely. This mere declaration of a state of emergency in some Local Government Areas isn't going to convince them. I urge the President to once again look at our July proposals. They are still valid for these times and when the counterterrorism unit is up and running it can only make things better.
Kennedy Emetulu
Saturday, 31 December 2011
President Goodluck Jonathan's Speech Declaring a State of Emergency in parts of the North
Fellow Nigerians, it has become necessary to address you on recent events in some parts of the country that have threatened our collective security and shaken the foundations of our corporate existence as a nation.
You are all aware of the security challenges which the activities of the Boko Haram sect have foisted on the country. What began as sectarian crises in the North Eastern parts of the country has gradually evolved into terrorist activities in different parts of the country with attendant negative consequences on our national security.
Government in an effort to find a lasting solution to the security threats occasioned by the activities of the Boko Haram sect, constituted a Presidential Committee under the Chairmanship of Ambassador Usman Gaji Galtimari, to ascertain the immediate and remote causes of the crises. While efforts are being made to implement the recommendations of the Committee, the crises have assumed a terrorist dimension with vital institutions of government including the United Nations Building and places of worship becoming targets of terrorist attacks.
While the search for lasting solutions is ongoing, it has become imperative to take some decisive measures necessary to restore normalcy in the country especially within the affected communities. Consequently, I have in the exercise of the powers conferred on me by the provisions of section 305(1) of the Constitution, declared a state of emergency in the following parts of the federation, namely:
Borno State
a) Maidugiri Metropolitan LGA
b) Gamboru Ngala LGA
c) Banki Bama LGA
d) Biu LGA
e) Jere LGA
Yobe State
a) Damaturu LGA
b) Geidam LGA
c) Potiskum LGA
d) Buniyadi-Gujba LGA
e) Gasua-Bade LGA
Plateau State
a) Jos North LGA
b) Jos South LGA
c) Barkin-Ladi LGA
d) Riyom LGA
Niger State
a) Suleja LGA
The details of this proclamation will be transmitted to the National Assembly as soon as they reconvene from their current recess, for their necessary action.
The Chief of Defence Staff and the Inspector-General of Police have been directed to put appropriate measures in place to ensure the protection of lives and properties of residents in the affected parts of the country. I therefore urge the political leadership in the affected states and Local Government Areas to give maximum cooperation to the law enforcement agencies deployed to their respective communities to ensure that the situation is brought under control within the shortest possible time.
The Chief of Defence Staff, in collaboration with other Service Chiefs, has also been directed to set up a special force unit within the Armed Forces, with dedicated counter terrorism responsibilities.
As part of the overall strategy to overcome the current security challenges, I have directed the closure of the land borders contiguous to the affected Local Government Areas so as to control incidences of cross boarder terrorist activities as terrorists have taken advantage of the present situation to strike at targets in Nigeria and retreat beyond the reach of our law enforcement personnel.
Let me assure our neighbours, especially within the ECOWAS sub-region, of Nigeria's commitment to its international obligations as provided by the ECOWAS Protocol on Free Movement of Persons. The temporary closure of our borders in the affected areas is only an interim measure designed to address the current security challenges and will be reviewed as soon as normalcy is restored.
I commend the efforts of our political leaders at various levels as well as our traditional and religious leaders for their support for the various conflict resolution mechanisms and peace building measures that have been initiated by this administration. We call on the citizenry to continue to provide useful information to our law enforcement agencies to enable us arrest the situation.
Terrorism is a war against all of us. I call on all Nigerians to join hands with government to fight these terrorists.
I wish all Nigerians a very happy New Year.
Long Live the Federal Republic of Nigeria.

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