State of emergency:FG moves to seize three states’ funds

.Senate: We never authorised this

.Lawyers: It’s unconstitutional
President Goodluck Jonathan will shortly seize the statutory revenue allocations of Adamawa, Borno and Yobe States as well as their internally generated revenue in line with Section 3, sub-sections {d} and {e} of the State of Emergency Proclamation Act 2013 which was passed by both chambers of the National Assembly last week, well informed government sources told Daily Trust yesterday.
However, all the constitutional lawyers that spoke to Daily Trust yesterday have declared that provision of the Proclamation Act to be in violation of the 1999 Constitution as amended. Several members of the National Assembly are also moving to annul the section on the grounds that it is unconstitutional.
Daily Trust learnt at the weekend that President Jonathan would shortly direct the Finance Ministry to withhold the three state’s statutory allocations and to recall the monies paid to them this month as their dues from the Federation Account. He intends to use the monies to finance the deployment of troops and other security operations in the three states upon which he clamped a state of emergency two weeks ago to contain an upsurge in Boko Haram violence. When he declared a state of emergency in 15 local governments spread over 4 states in January last year, Jonathan also withheld their funds.
The provision to seize control of state funds was contained in the draft proclamation submitted to the National Assembly by the presidency last week. While the Senate adopted the bill as it was, the House of Representatives expunged the provision. It amended the bill to provide that the president could give direction to the three state governors in matters of welfare and resettlement of victims of the violence. It also restricted his control and direction of the respective state governors to security matters only.
However, the harmonisation committee set up by the two houses presided over by Jonathan confidant Senator Ita Enang threw out the House amendments and adopted the Senate version of the proclamation. Both chambers of the National Assembly later adopted the harmonised version.
The issue is set to explode again on the House floor when it resumes plenary tomorrow as some members plan to call for an amendment of the proclamation to expunge sections that they say are unconstitutional. They reportedly have the support of Speaker Aminu Tambuwal and other House leaders. The resolution to be moved on the floor, a draft of which Daily Trust saw, pointed out that Section 162 {3} of the Constitution provides funds for the three tiers of government which can only be expended according to their appropriation laws. It also says Section 305 {1} of the Constitution which gives the president the power to declare state of emergency does not give him the power to either dissolve democratic structures or seize state funds. Further, the draft quotes Section 1 {2} of the Constitution as providing that neither Nigeria nor any part thereof can be governed except under the provisions of the constitution.
Responding to Daily Trust’s enquiries yesterday, the Senate said it never empowered President Goodluck Jonathan to seize the monthly allocations of the three states under emergency rule when it approved the request last Tuesday. Chairman, Senate Committee on Information and Media Senator Eyinnaya Abaribe (PDP, Abia) said, “What we approved is a public document. Everybody has it and all the clauses are in there. We only said the president can direct the governors on security and public safety matters only. That is why all democratic structures are left to function. The use of the word ‘seize’ is too strong a word. The president can’t seize their funds. It is wrong to do that. The president can’t seize any state fund.”
Legal luminaries across the country also said yesterday it was unconstitutional and illegal for President Goodluck Jonathan to seize funds meant for the three state governments affected by the declaration of state of emergency. The lawyers spoke separately to Daily Trust on telephone while others responded by way of SMS messages. John Bayesheia, SAN who spoke from London said that it would be an overbearing exercise of power for the President to seize state funds. He said the President cannot even act independently of the National Assembly to declare a state of emergency because that would tantamount to one man controlling the whole nation. According to him, in a democracy no one has such power which would cripple and render the states useless. He urged the affected governors to go to the Supreme Court should the president make the move.
Jubrin Samuel Okutepa, SAN also said “it is illegal and unconstitutional. There is no provision in the constitution that gave the president power to seize the funds of the states where state of emergency was declared.  Mind you, all democratically elected institutions of these states are not affected by the state of emergency. For me, any provision in the gazette empowering the president to do so is inconsistent with S.1(1) and (2) of the constitution and void under S.1(3) thereof.”
Sam Ologunorisa, SAN also said emergency rule can only reduce or deprive the governors of their security votes but clearly not the state funds in the affected states. He said, “The structure and function of states are intact. Emergency rule only empowers the commander in chief to take extra steps for the sake of public order and security”. He said, “Nigeria is a federation and the emergency rule cannot alter that fact.”
On his part, Barrister Yahaya Mahmoud, SAN said that the Federal Government must finance the emergency security operations and must also protect civilians. The governors and local governments in the affected states, he said, must be allowed to fully operate and control their statutory funds.
Lagos human rights lawyer Mr. Bamidele Aturu said “the law does not support confiscation of state funds in the name of emergency.” He said there was nothing in Section 305 of the Constitution to support such an illegal usurpation. “If it is done I believe that the court will declare it void. The law is clear on that.” However Ahmed Raji, SAN said President Jonathan was not going to seize any state’s money.  According to him, “if indeed there is emergency, it will be a bit odd to expect only the federal government to pay for the operation. I think an equitable formula should be worked out whereby the States will be obliged to be making some contribution as otherwise the affected states may be having idle funds while the federal government is slaving to fund the operation.”
The proclamation act’s Senate version had blamed the affected states for not contributing enough funds to support security operations. However, a senior official of the Borno State Government told Daily Trust last night, “That is not true as far as we are concerned. Borno State Government has donated more than 200 vehicles to the Joint Task Force. We provide them with fuel, logistics and feeding, we pay their allowances and we built their barracks. We also bought all their kits, jackets and helmets. The state government pays the reward for information leading to the capture of top insurgents. We also paid court judgments jointly awarded against tiers of government, even though we were a nominal party in the case. Besides, our state did not receive one kobo from the Federal Government to cushion the effect of the security challenges which have sapped our resources.”



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