The Doctrine of Necessity: The Right Step should IPOB prevent Anambra Election

The Doctrine of Necessity: The Right Step should IPOB prevent Anambra Election

I had the privilege of going through a post on Naij.com with the caption “There won’t be any election in Anambra until I get a date for referendum – IPOB leader“.

It is to the effect that the leader of the Indigenous People of Biafra (IPOB), Nnamdi Kanu, has given one condition as to why the 2017 Anambra governorship poll may not hold. Kanu said unless the country is restructured before October 2017, there would be no election in Anambra state in November.

According to Daily Post, Kanu stated this on Monday, July 24, at an event where he received awards from three Igbo groups.
NAIJ.com gathered that when asked about the reaction generated so far by his call for election boycott, he said the world would be shocked with the fate that would befall the election unless the federal government restructures the country before October 2017.

He said: “There will be no election in Anambra State come November 2017 and going forward there won’t be any election until they give me date for a referendum. “They know what to do; convene a meeting, I will send my rep; give us a date for referendum, that is the only way.
“In which part of this earth have you ever found a measure of self-determination to be equated to war except in Nigeria because the political leaders do not understand the difference between self determination and war?

“Self-determination does not mean hate speech; the status quo can no longer remain. Like my brother Evangelist Eliot Ugochukwu-Uko said, if on or before October 1 nothing happens in terms of substantial restructuring, then there won’t be any election; the people will support us.”

NAIJ.com previously reported that a large number of pro-Biafra supporters converged in Igweocha in Port Harcourt to receive the leader of the Indigenous People of Biafra (IPOB), Nnamdi Kanu on Friday, July 21.

Addressing the crowd which was reported to be over 3 million, Nnamdi Kanu said there is nothing like one Nigeria, insisting that Biafra is the reward of the people. The IPOB leader described Biafra as the destiny of the people.

In the video featured in the post, NAIJ.com TV took a critical look at Nnamdi Kanu and the struggle for the actualisation of the Republic of Biafra. Sadly, all I could see was Nnamdi Kanu being a joker and, perhaps, he would have gained more popularity being a professional actor because I considered his threats empty and full of unnecessary drama.

However, Chief Kyrian Anonyuo, another brilliant mind saw it from another perspective; he asked me what would happen if election fails to hold in Anambra State.


Points to Note:
1. It is only constitutional in Nigeria that elections should hold to pass on the mantle of leadership to another set of persons. The 1999 Constitution (as amended) provides specifically that an election to the office of Governor shall be held on a date to be appointed by the Independent National Electoral Commission. See Section 178.
2. Therefore, the threat of the Biafra Agitators that election won’t hold in Anambra State is not only unconstitutional but also criminal. This is because such acts which amounts to sedition, treason etc have been criminalized by the Criminal Code Act among other criminal legislation.
3. The implication of this is that anybody that attempts to build an impediment to the election can be prosecuted for attempting to incite the people against the incumbent government just like Nnamdi Kanu.
4. Note that the penalty for some of these offences is death penalty and such persons may also be prosecuted for electoral offence.
5. However, if the agitation is so grave as to endanger the lives of the people, the election may not hold and the government in such a case may have to invoke the DOCTRINE OF NECESSITY.
6. According to Sahara Reporters, in their article Doctrine of necessity in perspective :
The doctrine of necessity is a rarely used political concept or utilitarian idea and is used to define and validate extra-constitutional issues that fall outside the purview of the constitution but are necessary to preserve political stability. The fundamental objective of the doctrine is to satisfy the exigencies which have been created by certain situations outside the contemplation of the constitution or the rule of law; and its  significant feature is the deliberate circumvention of the constitution or some aspects of the rule of law in order to get out of political quagmire“.
7. In essence, in times of grave national emergency, normal constitutional principles may have to give way to the overriding need to deal with the emergency.
8. The doctrine of necessity is recognised in public law as a justification for an action otherwise unlawful necessary to preserve the life of the state or society and this doctrine, on the face of it, would appear to be inconsistent with the law.
9. Little wonder Abraham Lincoln said “The Constitution is not a suicide pact” i.e. the constitutional restrictions on governmental power must be balanced against the need for survival of the state and its people.
10. Glanville Williams further captures the essence of this doctrine in the following words:
What it comes to is this, that the defence of necessity involves a choice of the lesser evil. It requires a judgement of value, an adjudication between competing goods and a sacrifice of one to the other. The language of necessity disguises the selection of values that is really involved”.
11. Note that the doctrine of necessity can only be applied based on the following conditions:
(i) There must be an imperative necessity arising from an imminent and extreme danger affecting the safety of the state or society.
(ii) Action taken to meet the exigency must be inevitable in the sense of being the only remedy.
(iii) It must be proportionate to the necessity.
(iv) it must be of a temporary character limited to the duration of the exceptional circumstances.
(v) The authority which normally has the competence to act (if any) must be temporarily incapacitated.

Sequel to the foregoing, I’m of the firm opinion that if election fails to hold in Anambra due to the Biafra Agitation, the Federal Government can use “the doctrine of necessity” as a shield and “declaration of a state of emergency” in the state as a sword. For example, they can appoint an Interim Government to take over the administration of the state pending the time political stability will be restored. I therefore align myself with the question of Abraham Lincoln, “is it possible to loose the nation and yet preserve the constitution?”

THE LEGAL DIARY
Joseph Jagunmolu Ogunmodede

 

Joseph Ogunmodede
Founder, THE LEGAL DIARY
Joseph Jagunmolu Ogunmodede is a budding lawyer and founder of Nigerian-based innovative network known as THE LEGAL DIARY, an online platform for educating people on their legal rights and duties which is a unique idea that meets the pressing need for public enlightenment in Nigeria.
Since the evolution of THE LEGAL DIARY in January, 2017, he has consistently updated his audience with various legal stories and legal opinions posted on a weekly basis. He has also offered several pieces of advice and legal opinions to a number of clients both online and physically.
He was born in Ogun State, Nigeria, and holds Bachelor of Laws (LL.B) Degree from the prestigious University of Ibadan, Ibadan, Oyo State where he was awarded a First Class (Honours). He is currently an Intern at B. O. Ogunmodede & Co, Abeokuta, Ogun State.

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