In LAKANMI V. ATTORNEY GENERAL (WEST) AND ANOTHER (1970) NSCC 143, the Supreme Court of Nigeria, in a unanimous judgment, held that the invitation issued by the then Acting President of Nigeria, Doctor Nwafor Orizu, on January, 15, 1966, to the Supreme Commander of the Nigerian Army, General J.T.U. Aguiyi Ironsi, to take over the rump of the decapitated civilian government of Prime Minister Tafawa Balewa, and “restore order”, was justified by the DOCTRINE OF NECESSITY, and thus constitutional. It held that even though the Constitution of the Federal Republic of Nigeria, 1963, contained no provision empowering the Acting President to cede power to the Supreme Commander of the Army, the necessity of the prevailing situation justified such a cession of power.
The PREVAILING SITUATION was the attempted violent overthrow of the Balewa Government in the wake of which the Prime Minister, the Finance Minister, the Premiers of the Northern and Eastern Regions, and a section of the Nigerian political and military class, were assassinated. And President Nnamdi Azikiwe was abroad on medical vacation!
Clearly, the 1963 Constitution did not contemplate such a dire emergency, and had therefore not made any provisions for such. But the Supreme Court observed that:
“We think it wrong to expect that a Constitution must make provisions for all emergencies. No constitution can anticipate all the different forms of phenomena which may beset a nation. Further, the executive authority of the Federation is vested in the President by virtue of section 84 of the Constitution and WE THINK THAT IN A CASE OF EMERGENCY, HE HAS POWER TO EXERCISE IT IN THE BEST INTEREST OF THE NATION, ACTING UNDER THE DOCTRINE OF NECESSITY.”
The Doctrine of Necessity is thus clearly part of Nigerian law. In the English case of MADZIMBAMUTO V. LARDNER – BURKE (1969) 1 AC. 645, Lord Pearce explained the reason for recourse to the doctrine in steering a nation away from catastrophe, thus:
“The Doctrine of Necessity or Implied Mandate is for the preservation of the citizen, for keeping law and order, REBUS SIC STANTIBUS, regardless of whose fault it is that the crisis had been created, or persists.”
Similarly, in PHILIPS V. EYRE (1871) 6 L.R.Q.B.I. at 16, Willes J. rationalized the doctrine thus:
“This perilous duty, shared by the Governor with all the Queen’s subjects, whether civil or military, is in especial degree incumbent upon him as being entrusted with the powers of government for preserving the lives and property of the people and the authority of the Crown; and if such a duty exists as to tumultous assemblies of a dangerous character, the duty and responsibility in case of open rebellion are heightened by the consideration that the existence of law itself is threatened by the force of arms and a state of war against the Crown…..TO ACT UNDER SUCH CIRCUMSTANCES WITHIN THE PRECISE LIMITS OF THE LAW OF ORDINARY PEACE IS A DIFFICULT, AND MAYBE AN IMPOSSIBLE TASK, AND TO HESITATE OR TEMPORIZE MAY ENTAIL DISASTROUS CONSEQUENCES. “
In the Pakistani case of STATE V. DOSSO (1958) 2 P.S.C.R. 289 at 58, the Pakistani Supreme Court did also invoke the Doctine of Necessity to resolve a constitutional conundrum. Led by Chief Justice Muhammad Munir, it had validated the use of extraordinary and not so explicit emergency powers by the Pakistani Governor General, Ghulam Mohammad. The Supreme Court invoked Henry de Bracton’s Maxim in lending its imprimatur thus:
“That which is otherwise not lawful is made lawful by necessity”. It anchored the applicability of the maxim on the Roman Law maxim, “salus populi est suprema lex”, meaning “the well being of the people is the supreme law.”
Crucially, in UGANDA V. COMMISSIONER OF PRISONS, EX PARTE MATOVU (1966) East Africa Reports (E.A), the Ugandan Supreme Court, led by Nigeria’s Sir Udo Udoma as Chief Justice, followed STATE V. DOSSO. Prime Minister Milton Obote had suddenly removed the ceremonial President, Sir Edward Mutesa 11, in the heat of a constitutional crisis, and declared himself Executive President, apparently to restore order. The Supreme Court validated the ouster, citing the Doctrine of Necessity. Legal approval was thus given to Obote’s apparently extra – constitutional action on the ground that it had become GROSSO MODO (ie, by and large effective), since the Ugandan Army, commanded by Idi Amin Dada, had already pledged allegiance to the new President.
As the Nigerian nation today navigates a most tortuous time in its conquered history, it is becoming all the more glaring that only bold and unprecedented acts of statesmanship can save it from disintegration. Wracked by secessionist threats in the Southeast leading to loss of lives and an undeclared war, a crippling Islamic insurgency in the Northeast, banditry and depredation in the Northwest, strife and uncertainty in the Southwest and incipient calls for secession, crippling mass poverty, damnation from abroad and brouhaha across the nation, calls for a fundamental reworking of the constitutional order to avert the disintegration of the country have become rife.
In the ensuing conversations across the nation, the more favoured position appears to be the total abandonment of the 1999 Constitution in favour of a brand new constitution akin to the 1963 Republican Constitution of the Federal Republic which was suspended in January, 1965, upon the ascension to power by General J.T.U. Aguiyi Ironsi, after the January, 15, 1966 coup.
 That Constitution had prescribed the parliamentary system of government patterned after the British Westminster model, with an elected prime minister and a cabinet accountable to parliament, strong federating regions, each with its own constitution and system of courts and police force, and resource control. Power was essentially devolved to the federating regions, with the Exclusive Legislative List restricted to such matters as defence, foreign affairs, legal tender and coinage, Immigrations, Customs, etc.
Unfortunately, a literal reading of the 1999 Constitution would appear to confer no competence whatsoever on the National Assembly to jettison the 1999 Constitution, and midwife a brand new one. Sections 8 and 9 thereof only confer powers of amendment, exercisable through very complicated legislative and executive processes. What is more, the revolutionary decision to abandon entirely the 1999 Constitution appears to be one that can only be more appropriately made pursuant to a Referendum. Unfortunately however, the 1999 Constitution contains no provision for a referendum for such purposes. Section 8 only provides for the conduct of a referendum for the rather restricted purpose of states creation and boundary adjustment, and nothing more!
However, it is my considered view that there is an implied constitutional mandate, based on the DOCTRINE OF NECESSITY, that inheres in the President and Commander in Chief, to, in the face of the mortal perils now threatening to tear the nation apart, derail democracy and topple the nascent constitutional order,  put the question of the jettisoning of the 1999 Constitution to a referendum, which, if approved, will  pave the way for the convocation of a Sovereign Conference of Ethnic Nationalities to fashion an entirely new Constitution for the country that will restructure Nigeria, with emphasis on severely cutting the cost of governance. Such a Conference shall even be at liberty to recommend the inclusion of both SECESSION AND EXPULSION clauses, invocable by any of the federating units, if need be, upon the fulfilment of carefully spelt out conditions, to avoid acrimony and war.
The resolutions of the Conference shall be self – implementing, meaning that once the new Constitution is fashioned and brought into operation, the 1999 Constitution shall forthwith cease to exist, and all the extant structures and institutions established thereto, including the National and States Houses of Assembly, (except those that are preserved in the new Constitution), shall abate and dissolve, and new elections conducted, subject to transitional provisions that may be recommended in the new Constitution. 
As I have demonstrated, the President’s power to so act is necessitated by the utterly perilous circumstances prevailing across the country, which threaten, not just the possible overthrow of democracy and the existing legal order, but also calamity and war, unless urgently redressed.  Moreover, as the nation transits towards a post oil world, with diminishing revenues, piling debts and snowballing poverty, it has become very obvious that it can no longer afford and sustain the American Presidential System of Government, with thirty six States’ Executives and Legislatures, and a bicameral  National Assembly. The coming years therefore will only exacerbate the perils, with devastating consequences for the nation.
In such a situation therefore, the nation is ripe for the invocation of the Doctrine of Necessity to stave off calamity, and renew the nation. In February, 2010, in my capacity as Counsel to the then President of the Senate, His Excellency, Senator David Mark, GCON, I had similarly recommended the invocation of the Doctrine to cure the impasse created by the failure of President Yar Adua to comply with the then section 145 of the 1999 Constitution by transmitting a declaration in writing to both the President of the Senate, and the Speaker of the House of Representatives, to pave the way for the Vice President to emerge as Acting President. 
The Senate was persuaded to regard President Yar’Adua’s live broadcast aired by the BBC on the 9th of February, 2010, which was listened to by both the President of the Senate, and the Speaker of the House of Representatives, as a “declaration in writing”, and thus PURPOSIVE compliance with section 145 of the Constitution, to save the nation from looming drift and anarchy, based on the DOCTRINE OF NECESSITY! This was because the 1999 Constitution itself had not contemplated the emergency of a President being away for so long without transmitting a written declaration.
Today, the perils confronting the nation are graver and starker. I have no doubt therefore that we can once more call in aid the DOCTRINE OF NECESSITY to save the nation from disintegration and anarchy! As the learned law Lords opined in JOHNSON V. PHILIPS (1975) CRIM LR, “…..necessity overrides law, where the necessity is extreme and justifies this.”
Hope therefore remains eternal, that the fundamental bonds that have held our fragile nation together for more than a hundred years could once more be salvaged and re – defined, though tested by the strains of periodic calamity! Alternatively, any group sorely aggrieved with the union shall be at liberty to invoke the secession clause and walk away from the union, and a prebendal one expelled, without  acrimony or war!
Kenneth Ikonne writes from Abuja.

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