By Obioma Ezenwobodo
The declaration of a state of emergency by President Bola Tinubu suspending the duly elected Governor of Rivers State Mr. Sim Fubara, his Deputy, and members of the Rivers State House of Assembly by section 305(5) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as altered) is a flagrant abuse, disrespect and breach of the Constitution and democratic principles. The Country last witnessed such spectacle of unconstitutionality and abuse of power during the era of former President Olusegun Obasanjo who suspended the Governors, Deputies, and Houses of Assembly Members of Plateau State and Ekiti State for 6 (six) months respectively, and in their places, appointed Sole Administrators in 2004 and 2006 respectively.
Nowhere is the suspension of elected state officials provided for in the CFRN. To remove a duly executive Governor of a State or his Deputy, the provisions of section 188 of the CFRN have to be strictly observed. To remove an elected House of Assembly member, the recall procedure provided by Section 110 of the CFRN has to be strictly followed. These procedures represent the essence of our democracy as any other procedure would amount to a forceful takeover of government against section 1(2) of the CFRN. This is without prejudice to section 11(4) of the CFRN that authorises the National Assembly to step in to make laws for a state where there is a prevailing situation hindering the State House of Assembly from sitting to transact business.
A caveat to that provision states that nothing in the provision shall be construed as conferring on the National Assembly the power to remove the Governor or the Deputy Governor of the State from office. As a corollary, section 11(5) of the CFRN provides that the House of Assembly shall not be deemed to be unable to perform its functions so long as it can hold a meeting and transact business. Where then lies the power to suspend the elected officials of Rivers State through Executive Fiat.
Concerning Rivers State, the application of the provisions of section 305(5) of the CFRN is dependent on section 35(4)(c) and (d) of the CFRN which permit the President to issue a proclamation of a state of emergency where there is an actual, clear or present danger of breakdown of public order and public safety requiring extraordinary measures to restore peace or avert same. The essence is for the President to be decisive in maintaining peace in Rivers State using the coercive powers of the Federal Government. It involves deploying more security architecture and measures geared toward maintaining or restoring peace as the President has the ultimate control of the military, police, and other paramilitary agencies. Section 305(5) has no provisions for the suspension of elected states’ executive and House of Assembly members. The said section 305(5) is made subject to section 305(1) by providing that the powers to declare a state of emergency in the federation or any part thereof is subject to the provisions of the Constitution.
The President can neither expand his powers nor act beyond it. The President cannot use executive fiat to suspend elected government officials under any guise. The said act of suspension is a brazen violation of section 1(1) of the CFRN that provides for the supremacy of the Constitution on all authorities and persons throughout Nigeria. The deliberate act of imposition of a sole administrator on Rivers State amounts to a forceful takeover of powers in breach of section 1(2) of the CFRN. If we truly have a National Assembly representative of the wishes and aspirations of the country, it should refuse to pass a resolution approving the proclamation of a state of emergency in Rivers State.
Obioma Ezenwobodo LL.M
Managing Partner, Resolution Attorneys
Executive Director, Policy and Legislative Advocacy Network (PLAN)
[email protected]
