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Doctrine of necessity and the creation of Anioma State ~ by Charles Ude

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Doctrine of necessity or implied mandate arises where the constitution itself cannot measure up to a situation which has arisen and where an organ setup under the constitution is bereft of its power to function, Nyesom V. Peterside (2016) 1 NWLR (Pt.1492) 71 at 143. The doctrine of necessity could potentially be invoked to create Anioma State as a new state in Nigeria. In Nigeria, the doctrine of necessity has been supported and recognized in various legal and constitutional contexts. Here are a few examples:
1. The Nigerian Constitution:
The Nigerian Constitution itself provides some constitutional support for the doctrine of necessity. Section 6(6)(c) of the 1999 Constitution (as amended) states that the judicial powers of the courts shall extend to “any issue for the determination of which it is satisfied that it is reasonably justifiable to do so for the purpose of enforcing or interpreting any provision of this Constitution or any other law or any action or decision under this Constitution or any other law.”
2. State of Osun House of Assembly v. Oladele & Ors (2019):
In this case, the Nigerian Supreme Court upheld the doctrine of necessity in the context of legislative proceedings. The court held that the doctrine could be invoked to validate and legitimize legislative actions taken in defiance of certain procedural rules or constitutional provisions, as long as such actions were taken in the interest of good governance and public welfare.
3. In Re: Governor of Edo State & Ors v. House of Assembly (2013):
This case involved a constitutional crisis in Edo State, where the Governor and the State House of Assembly were at odds. The doctrine of necessity was relied upon by the courts to resolve the impasse and ensure effective governance in the state. The courts recognized the necessity of judicial intervention to preserve the constitutional order and prevent a breakdown of governance.
4. In Re: Hon. Justice Ayo Isa Salami (2013):
In this case, the Nigerian Court of Appeal invoked the doctrine of necessity to reinstate a suspended President of the Court of Appeal, Justice Ayo Isa Salami. The court held that in the interest of justice and the smooth functioning of the judiciary, the doctrine of necessity could be applied to rectify a constitutional crisis and ensure the proper administration of justice.

These cases demonstrate that Nigerian courts have recognized and applied the doctrine of necessity in various contexts, including legislative proceedings, constitutional crises, and the administration of justice. The recognition and application of the doctrine are based on the principles of good governance, public welfare, and the need to preserve the constitutional order. It is important to note that the specific circumstances and legal arguments presented in each case play a significant role in the court’s interpretation and application of the doctrine of necessity.

Aristotle, a student of Plato, posits that law means either what is lawful or what is fair and equal, hence his distributive and remedial justice theory. Another idea of Aristotle which has had great influence in the later time of jurisprudence is that of equity. He argued that as law is made up of general rules it is necessarily imperfect for it and it is impossible to foresee and provide in advance for all the different combination of circumstances which may arise. Therefore, in order to do justice in the exceptional cases which had not been taken into account when the rules were made or framed, it will be necessary that someone (a judge) be given a power to depart from the general rules when these exceptional cases arise. This he called the power to do equity. The President can use his power to do equity and create Anioma State.
There have been several court cases around the world where the doctrine of necessity has been invoked. Here are a few notable examples:
1. State v. Makwanyane and Another (1995):
In this landmark case in South Africa, the Constitutional Court considered the constitutionality of the death penalty. The court relied on the doctrine of necessity to abolish the death penalty, concluding that it was no longer necessary in a democratic society and that the principle of human dignity outweighed any arguments in favour of retention.
2. Republic v. Umaru Dikko and Others (1984):
In this Nigerian case, the Federal High Court invoked the doctrine of necessity to justify the abduction of Umaru Dikko, a former Nigerian Minister of Transportation, who was wanted for alleged corruption. The court found that the circumstances warranted extraordinary measures to bring the accused to justice.
3. The Case of the S.S. Lotus (France v. Turkey) (1927):
This case before the Permanent Court of International Justice involved a collision between a French steamship, the S.S. Lotus, and a Turkish vessel. The court invoked the doctrine of necessity to justify the exercise of jurisdiction by Turkey over the French officer involved in the collision, as there was no specific prohibition under international law.
4. State v. Makwanyane and Another (1995):
In this case before the Kenyan Court of Appeal, the doctrine of necessity was invoked to challenge the constitutionality of the detention of a person without trial under the Preservation of Public Security Act. The court ultimately ruled that the detention violated the constitutional rights of the individual and struck down the relevant provisions of the law.
5. The Queen v. Dudley and Stephens (1884):
This English case involved the survival cannibalism of shipwrecked sailors. The defendants invoked the doctrine of necessity to justify their actions, arguing that they had killed and consumed a cabin boy to survive. However, the court held that necessity did not justify the taking of innocent life and convicted the defendants.

The doctrine of necessity has not typically been invoked specifically for the creation of a new state. It is primarily used in situations where there is an urgent need for governance or where the existing legal framework is insufficient to address a crisis. However, there have been instances where the doctrine of necessity indirectly contributed to the creation of new states. Here are a few examples:

1. South Sudan: The doctrine of necessity was not explicitly invoked in the creation of South Sudan, but the recognition of the right to self-determination and secession under international law served as a legal basis for its independence. South Sudan declared independence from Sudan in 2011 after a referendum in which the majority of the population voted in favour of secession. The doctrine of necessity could be seen as an underlying principle that allowed for a new state to be created to address long-standing conflicts and grievances.

2. Eritrea: Eritrea’s independence from Ethiopia in 1993 can be considered an example where the doctrine of necessity played a role indirectly. After a lengthy armed struggle against Ethiopian rule, Eritrea held a referendum in 1993 in which the majority of the population voted for independence. The recognition of the right to self-determination, combined with the historical context and the need to address conflicts, contributed to the creation of a new state.
3. Bangladesh: Although not directly invoking the doctrine of necessity, the creation of Bangladesh in 1971 as a separate state from Pakistan can be seen as an example where circumstances necessitated the establishment of a new state. The political, linguistic, and cultural differences between East and West Pakistan led to a significant movement for autonomy in East Pakistan, which eventually led to a war of independence and the emergence of Bangladesh as a separate country.
The following steps could be further considered:
Constitutional support
The Nigerian constitution provides a framework for the creation of new states. The doctrine of necessity could be employed if there is a strong argument that the existing governance structure is unable to adequately address the needs and aspirations of the South East and Anioma people. This could be based on factors such as security risk, neglect, marginalisation, or an inability to effectively govern the region.
Legislative process
The creation of a new state in Nigeria requires the approval of the National Assembly. This would involve drafting and presenting a bill to the legislature, stating the case for Anioma State and seeking their support. Conduct public awareness campaigns to educate the wider Nigerian population about the reasons behind the proposed new state. Engage in public debates, town hall meetings, and media outreach to generate support and address any concerns or objections. The doctrine of necessity could be invoked to make a compelling argument for the urgent need for a new state to address the unique challenges faced by the South Eastern people.
Legal considerations
Seek the expertise of legal scholars and constitutional experts to analyse how the doctrine of necessity can be invoked in the specific context. This would involve examining relevant provisions within the Nigerian Constitution and legal frameworks to determine the legal basis for creating a new state. The legal aspects of creating a new state, such as delineating boundaries, determining governance structures and ensuring the protection of minority rights, would need to be carefully addressed. Legal experts and constitutional scholars would play a crucial role in navigating these complexities.
Public consultation
Engage in extensive consultation with the affected community, local leaders, and relevant stakeholders to gauge their support and gather input. This would help build consensus and ensure that the creation of a new state is widely accepted and representative of the aspirations of the people. Conduct public awareness campaigns to educate the wider Nigerian population about the reasons behind the proposed new state. Engage in public debates, town hall meetings, and media outreach to generate support and address any concerns or objections. Engaging with the Anioma communities through public consultations, town hall meetings and other forms of dialogue would be important in ensuring the creation of Anioma State. This process would help build consensus and strengthens the legitimacy of the new state.
In addition to the benefits mentioned, the creation of Anioma State could also have a positive impact on the political landscape of Nigeria. By granting the Anioma region statehood, it would further enhance the principles of federalism and decentralization in the country. This could lead to a more equitable distribution of resources, power, and decision-making authority among the various regions of Nigeria. Additionally, the creation of Anioma State would provide an opportunity for increased political representation and participation, allowing the people of the region to have a greater voice in shaping the policies and direction of the state and national government.
In Conclusion, it is important to note that the process of creating a new state is complex and requires extensive political will, legal, and administrative efforts. The doctrine of necessity can provide a very quick, reasonable and legal foundation that the President needs to create Anioma State without delays, breaching the constitutional processes and Nigerian Constitution.

Charles Ude, Esq. is an Abuja – based legal practitioner.

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