The emergency powers granted the president and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria under Section. 305 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and under the Emergency Powers Act 1961 does not enable or vest him with the power to remove a governor in whose state a state of emergency is declared.
Under the present constitutional regime, an elected state governor can only cease to hold office by impeachment, resignation, permanent incapacitation, death and by expiration of tenure. Any attempt to remove an elected state governor under the guise of declaration of the so-called “full state of emergency” will be unconstitutional. Though such action is supported by the precedent set in Plateau State during the Olusegun Obasanjo dispensation, it remains an illegality and we all know Obasanjo with his military back ground had an unenviable record of illegalities and disdain for democratic ethos and Rule of Law during his sadistic and despotic days in power.
Although the Supreme Court had declined to make a definite pronouncement on this vex issue in the case of Plateau State of Nigeria versus President of the FRN & ors, on technical ground (the academic nature of the res or subject matter of that case), the spirit and letter of the law does not envisage the removal of a governor during the declaration or currency of a state of emergency.
One practical basis for this submission is that there are executive functions under the Constitution that are gubernatorial in nature, that is, exclusive to and only domiciled in the governor as they are exclusively exercisable by the governor. Such functions cannot be delegated, not even to the deputy governor. Examples of such powers include; assent to Bills passed by the State House of Assembly under Section 100 CFRN, power of prerogative of mercy under Section 212 and appointment of members of the State Executive Council amongst others. Only a governor or an Acting governor can exercise those functions, and the circumstances under which an Acting governor emerges does not include when a state of emergency is declared.
The phrase ‘Sole Administrator’ is a constitutional aberration which cannot be found, not even impliedly, in any of the 320 sections of the 1999 Constitution. It is a military terminology which cannot be imported into our current democratic dispensation by any stretch of interpretation. State of emergency is state of emergency and not state of the military.
All that happens in a state of emergency is that certain overriding measures are taken to restore calm, public order and protect lives and properties. It allows for limited violation of individual liberties, such as freedom of movement.
We seem to had forgotten that a state of emergency is not solely applicable when security of life and property is threatened to such extent that radical measures are required as occasioned by the dastardly, imbecilic and monstrous activities of the outlawed Boko Haram sect. Indeed, under Section 305 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), a state of emergency may be declared in the event of natural disasters.
The question then is, if an earthquake occurs (God forbid) in my state, Akwa Ibom, as a result of the many years of attacks on the land owing to exploitation of crude oil, neglect of the environment or any other probable cause, will the state governor, Godswill Akpabio, who is reported in the media to had suggested the removal of the three governors of the states under emergency be ousted from office because an earthquake has occurred in his state?
There is no doubt about the fact that measures required during an
emergency occasioned by insurgency differs from those required during natural disasters, but the implication can only be the same in law. There is
nothing like partial or total state of emergency. While the degree of action required may differ at each occasion, a state of emergency remain nothing more than a state of emergency. The fact that instead of being removed from office, the president and governors may remain in office during a state of war despite the expiration of their tenure fortifies my position.
Again, it should be stated that under the Constitution, a state of emergency may be declared either in parts of the federation as currently going on or throughout the federation. Does it then mean that President Jonathan would cease to hold office if the activities of Boko Haram (again God forbid) spreads throughout the country necessitating the declaration of a state of emergency in the whole of Nigeria? If the declaration of a state of emergency either in parts or throughout the federation is what those agitating for the ouster or suspension of the affected governors mean by “total and partial state of emergency”, it would had found expression at some level of legal exegesis and intellectual discourse.
Those clamouring for the removal of the elected state governors affected by the state of emergency declared in the three North East states of Adamawa, Borno and Yobe are suffering from post- military trauma. They are yet to fully disentangle themselves from the devastations which the three decades of military rule brought on us as a nation.
While I am favourably dispose to the renewal and continuation of the subsisting state of emergency and considers as reckless the baseless allegation of sponsorship of terrorism and genocide leveled against President Jonathan by the Adamawa State governor, Murtala Nyako, I dismiss as legally, morally and rationally indefensible the call for the removal of the state governors affected by the state of emergency.
The political argument that the removal of the governors who incidentally are all in the opposition, will enhance Jonathan’s reelection is from the pit of hell and should never be entertained. There ought to be a red line in politics that should not be crossed.
The reports that the military has suggested the suspension of the governors is equally very offensive. A governor under the current constitutional regime CANNOT BE SUSPENDED under ANY CIRCUMSTANCE whatsoever. This to me, is an abuse of language.
Instead of making suggestions which are capable of derailing and truncating our nascent democracy, we should collectively devise ways of curtailing and eradicating the satanic and inhumane proclivities of these monsters whose utter inanity has led them into thinking that they have a monopoly of violence. Their lust for innocent blood will ultimately catch up with them as no evil done by man to man will ever go unpunished.
Inibehe Effiong is a Human Rights Activist and has just been offered full admission into the Nigerian Law School.
He can be reached via firstname.lastname@example.org, 08065142135 and on Facebook.
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