The doctrine of Necessity
When you mention this phrase “the doctrine of necessity”, what comes to mind of anyone who has been following up on the Nigeria political scene is the incident of February 2010 when the National Assembly took the drastic decision to empower the then Vice President Goodluck Jonathan to become president when then president Yar’adua was away on medical leave but didn’t put the Vice President in charge of affairs.
The constitutional protocol as provided in section 145 of the constitution stipulates that the president is to transmit a letter to the national assembly informing them of his temporary handover of power to the Vice if the president will be away for a long time but the then president Yar’adua embarked on his medical vacation without following this constitutional protocol and the National Assembly had to step in through the doctrine of necessity and on February 9, 2010, empowered the then Vice President to act as president temporarily pending when the president will be back, unfortunately, the president never came back.
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More on that later but there are other ambits to this doctrine of necessity that will interest you.
Basically, in politics or governance, the doctrine of necessity is the basis upon which extraordinary (unlawful but necessary) actions of the executive are permitted. Unlawful administrative actions which are designed to restore order or uphold fundamental constitutional principles are considered to be lawful even if such action contravenes established constitutions, laws, norms, or conventions. This means that unlawful acts by an executive can be permitted so as to restore law and order. This means that the doctrine of necessity in governance advocates that when the occasion demands, the law should bend its eyes and permit some unlawful acts of the executive at the time being so as to restore law and order.
This doctrine is often quoted during wartime or civil unrest. The executive is expected as a response to civil unrest to declare a state of emergency or dusk till dawn curfew thereby restricting citizens’ fundamental human rights so as to restore peace and civility.
In legal jurisprudence, there is another aspect of the doctrine of necessity which advocates that a person is allowed to do some illegal act when the occasion demands and he will not be prosecuted for it.
For instance, killing another human is a crime and it attracts capital punishment in most jurisdictions but killing another person in a “kill-or-be-killed” situation can be an example of the doctrine of necessity. You only killed to defend yourself from getting killed hence your act although unlawful can be permitted in law on the basis of self-defense.
But there are some clear exceptions to this doctrine of necessity, one of them being that you cannot kill another man just to survive. This means that you cannot kill another man who poses no threat to you solely because your survival depends on killing that fellow.
Here is an interesting old English case story that treated this exception to the jurisprudential doctrine of necessity.
Some sailors got lost in the sea. While they spent days sailing around to find their way, all their food got exhausted and they became hungry and sick. The situation then becomes clear that it is either they kill one of them, feed on the corpse to survive or they all die of hunger at the sea. They decided amongst themselves to kill the weakest and sickest amongst them. They did that and fed on the corpse of one of their colleagues. Days later they were found and rescued and they were later charged for the murder of the colleague. They raised the defense of the doctrine of necessity claiming that the occasion demands that they kill and feed on one of them so as to survive instead they all die. The court threw out this defense while holding them for murder and stating that the doctrine of necessity does not permit you to kill another man so that you can live as long as that other man poses no threat to you. All lives are equal and the law expected them all to die instead of killing another person to survive.
In layman’s terms, the doctrine of necessity advocates the choosing of the lesser evil over the greater evil, ie, when posed with two evils, pick the lesser evil and run with it but there are exceptions to this.