By Obioma Ezenwobodo
I just read – The Limits of Emergency Powers: A Rebuttal to Dr. Jaja’s Misinterpretation of Legislative Oversight, a rebuttal written by an eminent and renowned Senior Advocate of Nigeria, Dr. Monday Ubani SAN and for sake of justice and the rule of law, felt the need to exposit the constitutional and contextual basis on the limitation of the powers of the House of Representatives to oversee or summon the unconstitutional, but almighty Sole Administrator in Rivers State.
Mind you, Dr. Ubani SAN, is my ‘Nnukwu Oga’ whom I have enormous respect and reverence for. The basis of Dr. Ubani’s argument is that emergency powers do not abrogate legislative oversight. That the National Assembly is not a spectator in emergency governance. That it remains a co-actor with constitutional authority to oversee all public functionaries, including those appointed under emergency conditions. Citing Section 305(6)(c) of the 1999 Constitution, Dr. Ubani explained that a state of emergency must be approved by the National Assembly and therefore subject to its scrutiny.
He further referred to Sections 88 and 89, which empower the legislature to investigate and summon any public official involved in the administration of public affairs. Inasmuch as I appreciate the angle taken by Dr. Jaja in marshaling his argument and the subsequent rejoinder by Dr. Ubani, I am compelled to base my views on the provisions of the Constitution and constitutional principles since the issues revolve around the Constitution stricto sensu.
Firstly, the state of emergency in Rivers State that had the Governor and other elected functionaries suspended is an attack and abuse on the soul of our Constitutional Democracy. It is a defective contraption that taints and will continue to taint any structure on which it is built, including the House of Representatives summons on the Sole Administrator.
In analyzing or interpreting provisions of the Constitution, the primary and most effective approach to adopt is originalism or textualism, which emphasizes interpreting the constitutional provisions by their original public meaning at the time they were adopted. This principle was noted by the Supreme Court in NPF & ORS v. POLICE SERVICE COMMISSION & ANOR (2023) LPELR-60782(SC) at pages 29-30, where the apex court held thus:
“The duty of the Court to interpret the relevant provisions of the Constitution and determine the intention of the legislature is a fundamental aspect of constitutional jurisprudence. It involves the application of legal principles and techniques to ascertain the meaning and purpose behind constitutional provisions, particularly those enacted by the legislature. The primary approach that has been adopted by the Courts in the interpretation of the Constitution is known as originalism or textualism, which emphasizes interpreting constitutional provisions according to their original public meaning at the time they were adopted. In most cases, the intention of the legislature can be discerned from the text itself, as well as the historical context surrounding its adoption. This approach seeks to limit judicial discretion and promote stability and predictability in the interpretation of the Constitution. Although there are other recognized rules of interpretation of statutes, the golden rule remains that every statute is to be expounded according to its manifest and express intention.”
Based on the above principle, the original and textual essence of section 305 (6) of the Constitution of the Federal Republic of Nigeria 1999 (as altered) seems not appreciated. To appreciate its essence vis-à-vis the House of Representatives’ summons to the Sole Administrator in Rivers State, the crucial question is whether a proclamation of a state of emergency in Rivers State based on section 305 necessarily displaces state government institutions/functionaries. Certainly, the answer to this question is a capital ‘NO’. Section 305 is a conditional provision which begins with the phrase, ‘subject to the provisions of the Constitution’. In other words, the section is subject to other overriding provisions in the Constitution relevant to same.
Thus, everything relating to the declaration of a state of emergency must be done following the provisions of the Constitution. Nowhere is it provided in section 305, or any other provision, for the Governor and other elected functionaries of a State to be suspended from office by a declaration of a state of emergency, and in its place, have a Sole Administrator appointed to be scrutinised by the members of the National Assembly. Section 188 specifically provides for the removal of the Governor and Deputy Governor. Section 92 provides for the removal of the Speaker of the House of Assembly. Section 109 provides for the removal of a member of the House of Assembly, while section 110 provides for his recall. As argued in my article: https://thesourceng.com/house-of-reps-has-no-powers-to-oversee-rivers-administration/ and https://thenigerialawyer.com/nba-ex-chair-ezenwobodo-slams-manifest-illegality-in-rivers-calls-, that Nigeria being a federation with three (3) tiers of government, the only situation where the National Assembly can make laws for a State is provided by section 11 (4). The section provides that when the State’s House of Assembly is unable to perform its functions by reason of the situation prevailing in that State, the National Assembly may make such laws for the peace, order, and good government of the State.
It is significant to note that the Constitution expressly prohibits the National Assembly from removing the State Governor or his Deputy by the proviso to section 11(4) which clearly states that nothing in this section shall be construed as conferring on the National Assembly power to remove the Governor or the Deputy Governor of the State from office. It is without doubt that the power of the National Assembly to make laws for a State is only possible under a democratically elected Governor and Deputy Governor, not under a constitutionally unrecognised Sole Administrator. With the above explication, where is the power and moral authority of the House of Representative that breached sections 1(2) and 11 (4) of the Constitution by coalescing with the Executive Arm to forcefully take over elected government in Rivers State to now seek to participate in the governance of Rivers State by summoning the Sole Administrator.
Secondly, the reference to sections 88 and 89, which empower the legislature to investigate and summon any public official involved in the administration of public affairs, is another point in issue. These provisions are inapplicable to this scenario, and I tried to dilate the powers of the National Assembly to issue summons and investigate public officials in my article published on May 12, 2025, by the Nigerian Lawyers Blog, thus: https://thenigerialawyer.com/shunned-summons-limitation-of-senate-power-to-summon-the-igp-any-public-functionary-and-any-person-legal-analysis/. In the referenced article, I wrote thus:
“A careful perusal of section 88(1) of the Constitution reveals the following:
- The National Assembly can, by a published or gazetted resolution, cause an investigation into any matter or thing,
- The investigation must be into a matter or thing it has the power to make laws on, and
- The investigation can be on the conduct of affairs of any person, authority, ministry, or government department with responsibility to administer laws or disburse moneys appropriated by the National Assembly.
By section 88(2) of the Constitution, investigation can only be exercised for the purpose of enabling the National Assembly to:
- Make laws on a matter within its competence or correct any defects in existing laws,
- Expose corruption, inefficiency, or waste in the execution of laws, and
- In the disbursement of funds appropriated by it.
In other words, any investigation by the National Assembly that is not for these purposes is null and void. It therefore implies that the National Assembly power of summoning any person to appear before it in accordance with section 88(1)(c) of the Constitution can only be exercised when the purposes for the investigation accords with the qualifications specified in section 88(2)(a)(b) of the Constitution.”
An attempt to contextualise the powers of the House of Representatives to issue summons to the Sole Administrator in Rivers State and sections 88 and 89 would invariably bring us back to the crucial and burning question of the illegality of the removal of elected functionaries in Rivers State. A clear deduction from the provisions of sections 88 and 89 and happenings in Rivers State is that the removal of Governor Sim Fubara as Governor of Rivers State is not what the National Assembly has power on. The Sole Administrator appointed by the Executive Fiat and approved by the National Assembly has no constitutional responsibility to administer laws or disburse moneys, as all actions taken by him, including appointing Caretaker Chairmen for the Local Government Areas in the State, are flagrant disobedience to a subsisting Supreme Court decision and the Constitution.
The National Assembly cannot make laws or correct any defect in existing laws for Rivers State, as the unconstitutional Sole Administrator cannot sign or veto such laws. The National Assembly cannot equally expose corruption or inefficiency of a Sole Administrator, as such power is not donated by the Constitution. Further, the National Assembly cannot investigate the disbursement of funds by the Sole Administrator as they have no power to appropriate same to him…this justifies the swiftness in releasing the Rivers State backlog of federal allocation to the Sole Administrator, who has sole appropriation power.
Finally, it is crystal clear that the National Assembly rendered itself a mere spectator, rather than a co-actor, in the strange imposition of the State of Emergency in Rivers State. Except by a private arrangement or political expediency, the Sole Administrator in Rivers State is not under any obligation or compulsion to honour the summons issued by the House of Representatives. Likewise, the House cannot direct the Inspector General of Police to effect his arrest upon his refusal to honour the summons. The Sole Administrator is what he is called, the SOLE ADMINISTRATOR. The only opportunity for the National Assembly to redeem itself and restore is by restoring democracy in Rivers State is by exercising its powers under section 305 (5) (d) to revoke the unjust, illegal, and unconstitutional Proclamation of State of Emergency in Rivers State.
Obioma Ezenwobodo LL.M
Managing Partner, Resolution Attorneys
Executive Director, Policy & Legislative Advocacy Network (PLAN)
Pioneer Chairman, Nigerian Bar Association, Garki Branch, Abuja (2022/24)
The views expressed by contributors are strictly personal and not of Law & Society Magazine.
