States of emergency and the rule of law under contemporary African constitutions: A comparative analysis

Abstract

Emergencies, whether natural or man-made, are inevitable in contemporary societies. Although the nature and magnitude of such emergencies are usually unpredictable, governments across the world must adopt measures to mitigate and control the emergency while securing the lives and properties of the people. Since emergencies envisage exceptional circumstances, there may be the need for the suspension of the normal legal order and its temporary replacement with an extraordinary regime to help restore the normal legal order. During the subsistence of the extraordinary regime, the question that has always concerned modern-day constitutionalists is how the rule of law can be maintained in such a regime which is characterised by the suspension of the normal legal order. This concern is even more apparent in Africa considering the general attitude of political leaders who will want to take advantage of every opportunity to abuse human rights, consolidate powers and remain in government. All these concerns therefore centre on the nature and scope of state of emergency provisions in constitutions and their implementation. Therefore, in this article, I will comparatively analyse the nature and scope of state of emergency provisions under modern African constitutions to determine the extent to which they are inclusive and embrace the basic tenets of the rule of law. I will further interrogate the applicability of the rule of law in states of emergency using recent practices in selected African countries.