INTRODUCTION
In an era where democracy is supposed to reign supreme giving democracy dividends to beleaguered Nigerians, the nation has once again found itself at crossroads, a sober moment of reckoning where constitutional order is being tested in the most brazen of ways. President Bola Ahmed Tinubu, the president of the Federal Republic of Nigeria, sworn to uphold the Constitution, has taken a most unprecedented and unlawful step: the suspension of a democratically elected Governor, Deputy Governor and an entire State House of Assembly under the thin guise of emergency rule. What emergency? Nigerians and Rivers people did not see or feel any such emergency.
Let me be very firm most categorically and unequivocally that no constitutional provision, statute or any known convention grants the President the imperial and dictatorial authority to single-handedly dissolve the structures of an elected state government. That may probably have been in the locust days of military juntas; but Nigeria is today not under the firm grip of a military dictatorship. The last time I checked, she is supposed to be governed under a constitutional democracy that operates a presidential and republican form of government. The emergency provisions under Section 305 of the 1999 Constitution exist to restore order only in times of grave national crisis; certainly not to topple duly elected state officials. Lois X1V of France as an absolute dictator could not have done better and would therefore green with envy from his cold grave, having on 13th April, 1655, stood in front of parliament and imperiously exuded,” L’Etat C’est Moi” (“I am the State” ). A state of emergency does not and cannot translate to a civilian coup d’état, executed by executive fiat through a national broadcast which torpedoed elected structures and whimsically imposed a sole Administrator who would now illegally receive Rivers State allocations from the Federation account under section 162 of the Constitution contrary to the very judgement of the Supreme Court which President Bola Ahmed Tinubu pretended to be executing. We have seen this script play out before during the infamous 2004 Plateau State emergency, where former President Obasanjo suspended Governor Dariye in what was widely condemned as a travesty of constitutional governance. Then, as now, the excuse was “exceptional circumstances”; but the reality was nothing short of executive lawlessness and overreach masked as national interest. I had criticized it in the same way I also criticized those of former Presidents Olusegun Obasanjo and Goodluck Ebele Jonathan
And now, as Rivers State stands at the centre of this unfolding simulated constitutional debacle, one must ask: Is this the signal of a dangerous precedent for and kite-flying to Nigeria, of a looming maximum dictatorship in the offing in a one-party State? Will other “erring” Governors who refuse to align with the central government be next in line? Are we witnessing the return of a dangerous era of impunity where emergency rule becomes the bludgeon of political control rather than a tool for stability?
Let me be very clear about this for historical purposes: President Tinubu clearly lacks the power, authority and vires to suspend democratic structures, especially the removal of Governor Sim Fubara and the Rivers State House of Assembly members. His act constitutes nothing but a gross constitutional aberration and a most illegal, unlawful, wrongful and unconscionable step that has the potential of imploding Nigeria at large and Rivers State in particular. The Constitution must stand hallowed, unassaulted, or democracy will fall and perish. Although time shall tell, but time is certainly not on our side.
THE CONSTITUTIONAL FRAMEWORK FOR A STATE OF EMERGENCY
The Oxford Advanced Learner’s Dictionary, at page 379, defines “Declaration” as an official or formal statement, especially about the plans of a Government or an organization; the act of making such a statement.
Declaration or proclamation of a state of emergency therefore means proclaiming or making known a situation of emergency. What does “emergency” itself mean?
Emergency Doctrine is variously referred to as “emergency”, “imminent peril” or “sudden peril” Doctrine [Black’s Law Dictionary, 6th Edition, Page 523)
A “state of emergency” is defined in Longman Dictionary of Contemporary English (P.1620) as
“when a government gives itself special powers in order to try to control an unusually difficult or dangerous situation, especially when this involves limiting people’s freedom”
“Emergency powers” are such powers as are conferred on a Government during such an unusual situation to hold the state together.
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The Constitution in Section 305, of the Federal Republic of Nigeria as altered (the organic law and grund norm of the land) embraces three adjuncts of a declaration of a state of emergency: (1) Reasons for proclaiming it; (2) How it is proclaimed; (3) How it can be halted both before and after its proclamation. It also envisages two types of State of Emergency: (i) By Mr. President under Section 305 (3) (a) and (b), when the Federation is at War; or the Federation is in imminent danger of invasion or involvement in a state of war. (ii) The scenario where it is the Governor of a State who personally calls for the state of emergency under situations envisaged in Section 305 (3) (c), (d) and (e). This occurs where the threat does not extend beyond the boundaries of the State.
Section 305 of the 199 Constitution, as altered, provides:
1) “Subject to the provisions of this Constitution, the President may by instrument published in the Official Gazette of the Government of the Federation issue a Proclamation of a state of emergency in the Federation or any part thereof.
2) The President shall immediately after the publication, transmit copies of the Official Gazette of the Government of the Federation containing the proclamation including the details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation.”
None of the factors envisaged in Section 305 of the Constitution has occurred at all to warrant the steps taken by the president. In present scenario the bi-camera National Assembly had not even first met, discussed and approved the president’s emergency proposals before he acted. He did it in advance ( in futuro) in expectation of rubber-stamping by a pliable and malleable NASS.I hereby call on the NASS to show class for once by roundlly rejecting the President’s unconstitutional act of first declaring a state of emergency before its approval and also for acting altra vires by accompanying it with the suspension of elected democratic structures. This will place them on the right path of history. Otherwise, they should be prepared to be damnified by history.
I must emphasize that the declaration of a state of emergency does not translate into a dissolution of governance structures within the affected state. Under a state of emergency, the Governor, as the chief executive of the state, remains in office, whilst the institutions of government at the state level continue to function, unless expressly provided otherwise by law. There is no such law in Rivers State or at the national level.
The framers of the 1999 Constitution were deliberate in ensuring that the power to declare a state of emergency is not an avenue for executive overreach or imperious excursion into the realm of narcissm or ego trip. While the President may take extraordinary measures to maintain peace and order, those measures must align with the provisions of the Constitution. There is no provision howsoever, express or implied, that allowed President Tinubu to remove a sitting Governor and state House of Assembly legislators under the thin guise of emergency powers. There is no war in Nigeria. There is no threat of external aggression or invasion either across the country or in Rivers State. All that we have seen have been tussle for power between the Governor and the House of Assembly and the courts had already waded in with the Governor declaring he would comply with the Supreme Court’s judgement. A mere blow up of oil pipes in two communities by unidentified persons certainly does not constitute a war or external invasion situation.
THE PRINCIPLE OF SEPARATION of POWERS AND FEDERALISM
Nigeria operates a federal system of government, which means that power is divided and shared between the federal, state and Local Government Areas. governments. This structure is designed to prevent excessive concentration of power in any one level of government, for as Lord Acton once explained, “power tends to corrupts and absolute power corrupts absolutely”. The President’s authority over the states is limited, just as a Governor cannot interfere with presidential functions at the federal level.
Furthermore, the principle of separation of powers, a cornerstone of constitutional democracy as ablly propounded in 1748 by a great French philosopher, Baron de Montesquieu, ensures that no single branch of government has unchecked authority. The removal of a Governor is a matter strictly within the purview of the State House of Assembly, as stipulated under Section 188 of the Constitution. The process is quite detailed, lengthy and rigorous; and requires a legislative super majority to accomplish. It is not a power and prerogative the President can usurp and exercise as did President Tinubu, regardless of the circumstances.
CAN THE PRESIDENT SUSPEND OR REMOVE A SITTING GOVERNOR, DEPUTY GOVERNOR, OR HOUSE OF ASSEMBLY EVEN UNDER A STATE OF EMERGENCY?
Nigeria stands at a critical juncture in its democratic evolution. Recent developments in Rivers State, where President Bola Ahmed Tinubu purportedly suspended Governor Siminalayi Fubara, his Deputy, and the entire House of Assembly, call for a meticulous constitutional examination and analysis. At the heart of this matter lies an age-old question: Can the President, under the guise of emergency rule, lawfully suspend or remove a democratically elected Governor, Deputy Governor, or Legislature?
The answer, based on constitutional provisions, legal precedents and the very principles of federalism which we operate, is an unequivocal NO. The 1999 Nigerian Constitution (as amended) does not, under any circumstance, empower the President to remove, suspend, or torpedo duly elected state officials even under Section 305, which governs the declaration of a state of emergency.
