TROUBLE: In Secret Memo, AGF Malami Asks Buhari to Suspend Nigerian Constitution, Declare Martial Law

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  • In the eight-page memo of May 4, 2021, Mr Malami argued that insecurity across Nigeria has reached a level that could no longer be checked by existing democratic techniques.
  • In the early pages of the document, while ignoring Boko Haram, terror herdsmen and bandits, Mr Malami cited widespread acts of insecurity and blamed prominent separatist agitators like Sunday Igboho and Nnamdi Kanu for fueling the protracted crisis that has enveloped the country and aggravated the social and economic conditions of Nigerians

by OYINDAMOLA OLUBAJO AND YUSUF BURGA • JUNE 2, 2021

resident Muhammadu Buhari is in the process of declaring a state of emergency across the Federal Republic of Nigeria, Peoples Gazette can report based on a secret memo and official accounts, as the administration scrambles to waggle its way out of acute insecurity and the encumbrances of constitutional provisions. 

Attorney-General Abubakar Malami has already written lengthy legal advice to the Nigerian president, urging him to move swiftly to suspend the fundamental rights of all Nigerians as guaranteed under Chapter IV of the Constitution.

In the eight-page secret memo dated May 4, 2021, Mr Malami told Mr Buhari that insecurity across Nigeria has reached a level that could no longer be checked by existing democratic techniques, saying only a state of emergency promulgated by the president can help return the country to tranquillity. 

Buhari and Malami
President Muhammadu Buhari and AGF Abubakar Malami

“The essence of declaration is to allow for suspension of constitutional and legal bureaucratic bottlenecks pertaining to matters of National Security with particular regards to fundamental rights guaranteed under Chapter IV of the 1999 Constitution and processes and procedures relating to procurements, among others,” the attorney-general said. 

Mr Malami said the president should issue instruments of emergency and publish them in the federal gazette. Senate President Ahmed Lawan and Speaker Femi Gbajabiamila will be informed about the decision ahead of implementation, he added.

“To douse probable legal tension, it is important for the proclamation instrument of the statement of emergency to expressly provide for the suspension of Chapter IV of the 1999 Constitution and its attendant enforcement rules,” Mr Malami wrote. “The suspension of rights pertaining to matters of national security will then give legal backing for the proclamation of the statement of emergency to be operational and effective without litigious or judicial distractions.”

In the early pages of the document, Mr Malami cited widespread acts of insecurity and blamed prominent separatist agitators like Sunday Igboho and Nnamdi Kanu for fueling the protracted crisis that has enveloped the country and aggravated the social and economic conditions of Nigerians.

Document

The memo was endorsed to the president by National Security Adviser Babagana Monguno and administration officials are divided on how to proceed with the advice. 

“Clearly, different factions of our government have different positions on this alarming proposal,” a presidency official told The Gazette. “But everyone agrees that the AGF holds powerful sway over the president and it would be a miracle if the Constitution is not suspended as he recommended.” 

Another official also within the presidency, who confirmed hearing about the memo but had not seen it before they were reached by The Gazette, said Mr Buhari might have little resistance considering the potency of Mr Malami’s argument.

“The president is just saying they should act in the best interest of the country,” the official said. “Even as the president, he seemed to have given up on his own ability to get the AGF to back down.”

Constitution suspended

Multiple constitutional scholars and practitioners who analysed the memo for The Gazette said it was essentially a suspension of the Nigerian Constitution and declaration of martial law since Chapter IV dealt with fundamental human rights absence of which there cannot be a democratic system.

The analysts acknowledged the powers of the president to issue a state of emergency under Section 305 of the Constitution but said the powers are not absolute and do not include outright suspension of Chapter IV. While Section 305 said the president can declare a national emergency to curb criminalities, it did not expressly permit suspension of Chapter IV, which analysts described as the most important section of the Constitution.

Police office burnt down.
Photo of a police station on fire

The right to life and other crucial rights of modern society will be suspended under Mr Malami’s proposal. 

The attorney-general appeared to lay the groundwork for the controversial plan when he decried on Tuesday that Mr Buhari’s respect for human rights was largely responsible for the administration’s seeming incompetence at tackling widespread carnage and lawlessness.   

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