The 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. 
It is also a situation where the rule of law and constitution has to be adulterated by extra-legal civil means in the short term in order to preserve the constitutional, the rule of law, the government and democracy in the long term. Simply put: to save the country, the constitution has to be dumped and the rule of law has to be slanted. In addition, the doctrine is not a legal theory but a concession to human weakness.  It is also a political arrangement that has garnered some form of legal validation and global support.

Even though, the doctrine which is sometimes referred to as the “necessity defense” or “choice of evils defense” may be old and predates  the common law, the first time it was ever invoked to legalize a government action was in 1954 in Pakistan just seven years after the creation of Pakistan when the Pakistani Supreme Court gave legal support to the extra judicial action of the country’s Governor-General who used extra constitutional mean of emergency power to dissolve  the country’s constituent assembly and appointed a new council of ministers on the ground that the constituent assembly no longer represented the people. In an action that followed, the then Pakistani Supreme Court Chief Justice not only validated the extra-constitutional action of the Governor–General but used the maxim: “ that which is otherwise not lawful is made lawful by necessity”. The Chief Judge further postulated that in certain situations such as it was created in Pakistan at the time, it was necessary to go beyond the constitution because the well being of the people is more important than the constitution and this well being must be regarded as the supreme law of the land thereby providing legal teeth for the unconstitutional action of the Governor-General. To this day, the maxim has been attached to the doctrine as its hallmark.

Another recorded instance of the political use of the doctrine to justify an extra constitutional act was in 1985 when the High Court of Granada used the theory to give legal backing to the existence of a special court trying the people who  had conducted a coup against the ex-leader, Maurice Bishop. The Court was established under what the government called the “people’s law” after the country’s constitution was abrogated. In the trial which took place after the country’s constitution was restored, the coup plotters who were being tried for murder objected to the legal jurisdiction of the Court under  the restored constitution and argued that the Court had no jurisdiction over them by virtue of the restoration of the country’s constitution. They further argued that the Court was not established by law but came into existence  by fiat and  extra-legal method. In its ruling, the High Court agreed with the submission of the Defendants that the Court was created outside the provision of the Constitution but held that the Court was validly established by government having been created at the time due to the doctrine of necessity and the exigency of the situation that prevailed at  the time it was created.

In the two major recorded instances, when the doctrine of necessity was used, it was the judiciary that validated the extra constitutional acts of government and both instances involved developing  countries.  However, this is not to say that the doctrine has not been used in the developed countries to justify some actions of government that seemingly fall outside the constitutional arrangements or the rule of law particularly, after the September 11, 2001 terrorists attack in  the  United States. Since then, the principle of necessity has been used in one form or another by the U.S, United Kingdom, Canada and several EU countries to adopt measures aimed at safeguarding national security and preservation of life even while those measures have the tendency to infringe on the rule of law and fundamental human rights.

The  recent Nigerian experience  in which the National assembly of Nigeria had to resort to  extra constitutional procedure to empower the vice president  due to the failure of the president to transmit a letter to the National Assembly informing the National Assembly  that he was otherwise unable to discharge the functions of the office in which case and until he transmits to the National Assembly a declaration to the contrary, the functions of the president would be discharged by the vice-president as acting president in accordance with Section 145 of the 1999 Constitution of Nigeria is another classic example of the use of the doctrine of necessity to justify a hitherto unconstitutional process.

On February 9, 2010, the National Assembly of Nigeria by a resolution adopted by both Chambers of the National Assembly following a request by the Governors’ Forum empowered the Vice-President of Nigeria to act as the President and Commander-in-Chief of the Nigerian Armed Forces following the protracted illness of the substantive president who may not be able to discharge the function of the office as required by the constitution.  The doctrine of necessity was adopted by the National Assembly as a political solution to the constitutional logjam created by the failure of the president to follow the constitutional process and to avoid the lacuna created by his long absence from office. The doctrine was also used as a necessary measure to save Nigeria from imminent collapse in the face of the constitutional blockage and human contributions to the constitutional flaws.

The doctrine of necessity though, politically necessary in some situation, it should not be seen or regarded as the best solutions to all problems; hence politicians will always see it as the most convenient way to abandon the constitution an action that  may escalate into the violation of the rule of law and human rights. For instance, the doctrine has been shoddily used and flagrantly abused in Pakistan as every government has used it as a political weapon to either intimidate their opponents or repress the rule of law using extra constitutional means. Unfortunately, they always have a good allies in the judiciary to validate such actions as necessary to save Pakistan from collapsing. To this effect, the Pakistani experience should not be considered as a good model and legitimate precedent.

In conclusion, the doctrine of necessity is noble when properly used and valuable when rarely applied. Even though, there is a common  belief  that all human endeavors are controlled by law and every human  act determined by law, it must not be assumed that all acts of man are contemplated by law. Therefore, certain conducts though, harmful and seemingly unconstitutional are necessary in order to avert a greater harm. In the words of  Granville Williams : “[S]ome acts that would otherwise be wrong are rendered rightful by a good purpose, or by the necessity of choosing the lesser of two evils.”

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Howbeit, this act was deliberate to preserve the selfish political agenda of a segment of the Nation. The National Assembly could not face the wrath of Arewa who felt it was there turn to be president and execute a Northern agenda at the detriment of the rest of the people. The most recent evidence that Nigeria is a Nation at war with itself is the political manoeuvring that surrounded Yar’Adua’s ill-health. Even though people are hailing the National Assembly because it give us a temporary relief, the ghost of this act will certainly return to hunt this nation now or then. Just like all such past decisions and actions have been hunting Nigeria. We did not take the noble course of justice and truth to achieve this seeming peace. Until then Nigeria may bask in her cheap and elusive peace. end

The National House of assembly should have told us that they acted on the “Doctrine of Convenience” if there is anything like that. It was convenient for them because that would not rock their position nonetheless if it rocks our national foundation. They were too afraid to tell the truth let alone act on the truth. It was an act of cowardice on the part of the National Assembly and disappointment to the people that elected them. This act has rendered our constitution a nullity. In other words, we have no basis on which we based our unity because the only thing that unites us together is that document called the Nigerian Constitution. For any group of people to refuse to honour one of the most important sections of the constitution is to render it null and void and thereby void our Nation.
Continues in my next post

. The Doctrine of Necessity provide for a situation where the constitution did not clearly address an issue. The court or the National Assembly can take a decision base on necessity to address the issue in the interest of the state. But in the case of a President who is either temporarily unable to perform the functions of office or who is permanently incapacitated the 1999 Constitution clearly state what should be done. So in this circumstances that the Nigeria state finds herself invoking the doctrine of necessity is not necessary. The National House of assembly should have told us that they acted on the “Doctrine of Convenience” if there is anything like that. It was convenient for them because that would not rock their position nonetheless if it rocks our national foundation. They were too afraid to tell the truth let alone act on the truth. It was an act of cowardice on the part of the National Assembly and disappointment to the people that elected them. Continue in my next post

The other question that we should endeavour to answer is “Was it lawful for Vice-President Dr Goodluck Ebele Jonathan to assume office as Acting president when the President became incapacitated by ill-health and was unavailable to perform his duties as President?” The constitution of the Federal Republic of Nigeria answers this question in the affirmative. But what was lawful to be done by the National Assembly was not done. The National Assembly avoid more painful options of impeaching the President for obvious violation of the Constitution which he sworn to defend. They refused to follow the popular maxim “the well-being of the people is the supreme law” but gave greater consideration to their own political well being and not that of the state.
Continues in next post.

1.1. The first option and the most constitutional option was to impeach Yar’Adua because he flagrantly breached the constitution with impunity. Yar’Adua and his kitchen cabinets deliberately threw the nation into constitutional confusion.
2.2. There Nigeria Senate should have written to the Saudi Doctors who managed Yar’Adua’s health to furnish it with a detailed medical report stating whether the president was fit to return to office or not. This report should have been reviewed by a team of Doctors made up of Nigerian Medical Experts plus or minus foreign experts. With this Federal Executive Council or the Senate should have declared Yar’Adua temporarily or permanently incapacitated and swear in Goodluck as Acting President. The FEC and the senate are spineless, they are cowards. They had no moral courage to tell the truth let alone act on the truth.
Continues in my next post

The phrase "otherwise not lawful" means that there is no alternative lawful way the issue could be addressed. It therefore means that the doctrine of necessity is necessary and applicable only when and where there is no other lawful way an issue cab be address. The noble reason behind the doctrine of necessity is address by the second maxim: The well being of the people is the supreme law. This implies that it is meant to save state interests not sectional or individual interests. The answer to the second question I raised above is no. It was not applicable in the circumstances in which it was applied in by Nigeria senate because there were alternatives. The 2 alternatives were: Continues in my next post

Doctrine of Necessity and the Emergence of Dr Goodluck Ebele Jonathan as Acting President Federal Republic of Nigeria
The first question that comes to mind that demand answers is “What is the Doctrine of Necessity?” The second question is "was the Doctrine of Necessity necessary and applicable in the circumstances in which the Nigeria Senate applied it?"
The answer to the first question will help us to answer the second.
A.Meaning of the Doctrine of Necessity
The Doctrine of Necessity means that “that which is not lawful is made lawful by necessity”. (Wikipedia encyclopaedia).
This doctrine derived from 2 popular maxims. Bracton’s maxim, 'that which is otherwise not lawful is made lawful by necessity', and the Roman law maxim urged by Jennings, 'the well-being of the people is the supreme law.' The phrase "otherwise not lawful" means that there is no alternative lawful way the issue could be addressed.

Nice One man keep it up.

It is important for everybody to know that Nigeria as a conutry is greater than an individual. Irrespective of whatever motives the NASS might have, i still take side with them.

Call it what ever u like...GOODLUCK s n ll remain an illegal acting PRESIDENT unless d right the s done.

We should not try to vilify the writer for giving a very good and proper explanation of the Doctrine of Necessity. Alo O.A. I very much agree with u that the NASS should have commenced impeachment proceedings against the president for breaching the provisions of S. 145. Even with Goodluck sworn in as acting President they still have to do it. As for the Doctrine of Necessity, it is not the 1st time it is being used in Nigeria as it has been upheld by the supreme court in the case if Lakanmi Vs Attorney General of Western Nigeria in 1970 as part of our law. The NASS in this situation rightly applied it. We should praise this writer for helping us understand this Doctrine as per Ugochukwu Onwukachie. I have read a number of Nigerians just say what they think is right aginst the use of the Doctrine without really understanding it. it may not be the only option for NASS as I have stated but it is a necessary option considering the state of the Nation.

In studying the history and degeneration of Nigeria in the past fifty years, one discovers that there has always been the right alternative to do things but one striking occurrence during this period is the penchant of the leaders to choose the highway that leads to perdition rather than rescue. There is something that bothers me here and this is the fact that James Ibori, Michael Aondoaaka and David Mark are all known to be desiring the destruction of Nigeria and any expectation that they will now come up with a decision that will put the nation on the right pedestal, amounts to delusion. The constitution is very clear on the steps that must be followed but those criminals would rather set up their trap to ensnare the gullible one who may not clearly understand their actual intentions. There is nothing good for Goodluck Jonathan or anyone that you and I may know in this whole rigmarole.

This one just dey speak oyibo. e leave the major problem. This is why we no dey progrss in this country. All this quarmire english will not take us anywhere. what is the solution sir?

@Kayode Oladele, Thank you for this Didactic and illuminating piece.

There is no excuse that would JUSTIFY NASS adopting this doctrine. I would agree with @OHYN. NASS had other options which they wished to ignore. For as described by Bracton's maxim, 'that which is otherwise not lawful is made lawful by necessity'

In the case of Nigeria, I would question the motive; finance is always a strong factor in the decisions of our Politicians; having just created a potential Cash Cow for themselves until YarAdua returns.

How?

They can wake up one day and decide Goodluck is not in their good books, then Goodluck has to appease them.
I am sorry I am just cynical about them.

It's usually not fun for the hunter when the rabbit 's got the gun.

A constitution is a living breathing document.

OHYN, I've been following your numerous posts on this website; you write and reason well; how come your conclusions betray your otherwise intellectual acumen? Try to have the interest of Nigeria in your heart and mind. Yar'Adua losing power does not diminish any region of Nigeria, just like Yar'Adua holding onto power does not elevate any region. Let go. Get used to this thing. I know this saga is not over yet. The plot is likely to thicken.

why did it take Nigerian government so long to invoke this 'doctrine of neccessity knowing fully well the true manipulative state of president yardua's health in a foreign hostile land of Arabia?
david mark and bankole dimeji were corruptly remoted to inflate and dictate ibb usual june 12 annulment gimmick of interim transition government to now mean 'Doctrine of neccessity government of president Goodluck Jonathan- maybe for another Arewa criminal gang in uniform to repeat Abacha espisode our 'Save Nigerian Government(SNG)forum onbehalf of all Nigerians will resist at all-cost even when it mean 'Oh Nigerians to your tent!

Thanks for the legal clarification on the doctrine. I still believe this is a bobby trap and a bad precendence. There is enough room in the present constitution to the same and the right thing.

Goodluck is Godsent and billions of Ibori cant do him anything since it is a matter stealing by trick, the Acting President should move fast to arrest them for trial.

You can always count on Nigeria and Nigerians to bastardize every term, every process and every institution. Not only that, they exhibit the idiocy of trying to rationalize and sell such fluff to the entire world. For this reason, Nigeria is really finished: there is no hope of redemption for an incorrigible system which revels in its own fraud-ocracy.
The so-called constitution of Nigeria, for all its failings, still manages, in this case, to provide the correct course of action. To avoid this prescription, out of sheer cowardice, personal, sectional and parochial interest, and political corruption, arrogance or for whatever reason, is bad enough. To try to rationalize it on the so-called “Doctrine of Necessity” is asinine. But, that has indeed become the trademark of Nigeria / Nigerians, hasn’t it?
Whatever this author’s intent is with this article, we have to thank him for his success in confirming what the world already knows and thinks of Nigeria: the failed State of the Absurd.

The act of the National Assembly in using the 'doctrine of necessity' as a basis for the proper handing over of power to the Vice President is unconstitutional. Plainly, what should have happened;( were the assembly not politically incompetent and docile) is to commence an impeachment procedure within days of the President's AWOL!...There is nothing basically or 'doctrinally' wrong with the Nigerian constitution. But the people who are expected to apply it in the highest places are greedy, self-serving and demonic! If you object to this view- think who will pay the Saudi medical bill? King Fahd or the Nigerian people?!!

It can be convincingly and intelligibly argued that the doctrine of necessity became expedient in the Yar’dua lacuna because of the existent risk of the untimely termination of the third republic. Unlike in the two preceding republics, the political class were outwitted by the military for their collective failure to devise political consensus as a preventative measure to safeguard their political interest (self-preservation) and democratic hegemony from the brigand military class /adventurists.

It may well be that by this single act of political expediency / necessity; NASS has redeemed the third republic from the precipice of summary termination by the military class. In effect, an ingenious deployment of the principle of necessity has preserved our nascent democracy - on this occasion. The military has been effectively checkmate; and it would seem they have had to return to the drawing board – waiting for yet another opportune time!

What the National Assembly did with respect to the resolution empowering Goodluck Jonathan as the acting president has nothing to do with the doctrine of necessity. Necessity occurs where there are no alternatives. The National Assembly had alternatives in sections 143 and 145 of the constitution but it chose to do the politically expedient thing. I dare predict that at the roper time and place, our corrupt judges will find the resolutions to be illegal and we will be back to swaure one.