By FEMI FALANA, SAN
WHEN President Goodluck Jonathan declared a state of emergency in Adamawa, Borno and Yobe States in May 2013 he rejected the illegal advice of some power mongers to remove the elected governors and dissolve other democratic structures in the affected states.
In my reaction to the development I commended the President for not allowing the forces of fascism to mislead him. But following the escalation of dastardly attacks and mayhem unleashed on unarmed citizens including children in the affected states not a few persons have engaged in the diversionary tactics of demanding for the removal of the governors of the three States.
One would have wanted to dismiss the diversionary call but for the intervention of Chief Edwin Clark who wields enormous influence around the presidency. In joining issues with the Chief it is germane to examine the statement credited to him to the effect that, “there is nothing like partial declaration of a state of emergency in the 1999 Constitution; what section 305 (c) of the Constitution contemplates is the recourse to ‘extraordinary measures to restore peace’ and security where there is a breakdown of public order and public safety. This in effect means that all democratic institution should be suspended to permit the military exercise full control until peace and order returns” (ThisDay Newspaper, April 25, 2014).
With profound respect to the elder statesman, Section 305 of the Constitution which empowers the President to declare a state of emergency in any part of the country does not make any provision, expressly or impliedly, for the removal of elected democratic structures. In other words, the power of the President, to take “extraordinary measures to restore peace and security” under a state of emergency does not include the removal of elected public officers or the dissolution of democratic structures.
In any case, State Governors cannot be held vicariously liable for the inability of the President and Commander-in-Chief of the Armed Forces to stem the rising wave of insurgency in the country. It is submitted that the adoption of “extraordinary measures” should not be construed outside the ambit of the power of the President to deploy the armed forces and the police to restore public peace whenever there has been a breakdown of law and order in the whole country or any part thereof.
In the process, the fundamental rights of all persons in the affected areas, save the right to life, may be infringed upon in the interest of defence, public safety and public order.
To that extent, Section 45 (2) of the Constitution provides that “An Act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of section 33 or 35 of this Constitution; but no such measures shall be taken in pursuance of any such Act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency:
Provided that nothing in this section shall authorize any derogation from the provisions of Section 33 of this Constitution, except in respect of death resulting from acts of war or authorize any derogation from the provisions of Section 36 (8) of this Constitution.”
Utter violation of constitution
As Chief Clark could not refer to any law or decided case to justify his stand he has enjoined President Jonathan to follow the bad example of President Obasanjo who suspended the Governor of Plateau State and the Acting Governor of Ekiti State for six months in utter violation of the Constitution. That was an era of executive recklessness which has been consigned to the dustbin of history.
Assuming without conceding that President Obasanjo was right is Chief Clark suggesting, by any stretch of imagination, that if the Federation is waging a war against another country leading to the imposition of emergency rule in the entire land the President should vacate office for a retired General to take over and run the country like a Sole Administrator?
Those who are asking the President to jettison the rule of law under the pretext of fighting insurgency in the North East region are challenged to refer to any specific provision of the Constitution to back up their invitation to anarchy in the country. Having regard to the provisions of the Criminal Code Act, it is submitted, without any fear of contradiction, that the suspension of elected governors by President Obasanjo was treasonable in every material particular.
In addition, such removal was a gross contravention of section 1 (2) of the Constitution which states that “The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof except in accordance with the provisions of this Constitution.”
It is time the attention of Nigerians was drawn to Sections 180,188 and 189 of the Constitution which provide that an elected Governor can only cease to hold office on account of resignation from office, death, permanent incapacity and impeachment.
For the avoidance of doubt, Section 11 (4) of the Constitution provides that whenever the House of a State is unable to sit for any reason whatsoever and the National Assembly takes over the legislative functions of the State it shall not be construed “as conferring on the National Assembly power to remove the Governor or Deputy Governor of the State from office”.
In the case of Senator Victor Akan &Anor v. Attorney-General, Cross Rivers State & 7 Ors. (1982) 3 NCLR 881 it was held that the removal of elected councilors in Cross River State was illegal and unconstitutional as a “Governor has no constitutional power to appoint any person or body of persons into a local government council because under section 7(1) of the 1979 Constitution, a State government can only constitute Local Government Councils under a law made by the State House of Assembly which provides for local government council that are democratically elected and not otherwise. ”
If a governor cannot remove elected Chairmen and councilors it stands to reason that the President lacks the vires to sack elected governors.
Although the State Independent Electoral Commission has since successfully conducted local government elections in Yobe State it is submitted that even if the President considers that it is not practicable to hold elections on account of the raging insurgency in the North East region Section 180 (3) of the Constitution empowers the National Assembly to extend the 4-year tenure of the elected governors “but no such extension shall exceed a period of six months at any one time”.
It ought to be pointed out that the imposition of emergency rule does not authorize the President to suspend constitutionalism or rule of Law in any part of the Federation. At the height of the Hitlerite menace during the Second World war Lord Atkin reminded fellow Judges in the United Kingdom that “In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.
It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that judges are no respecter of persons and stand between the subject and any attempted encroachment on his liberty by the executive, alert to see that any coercive action is justified in law” ( Liversidge v Anderson (1941) UKHL 1).
Even under the maximum dictatorship of theSaniAbacha junta the Federal High Court (per Odunowo J.) declared that the military occupation of the premises of the Punch Newspapers was illegal. According to his lordship,“These violations cannot be justified on any of the grounds that the invasion of their rights was done in the interest of security, public safety, public order or public morality.
Even if a state of emergency was declared it is still incumbent on the government to pay due regard to the rule of law which implies that every person, including Ministers, Judges and other officials, is subject to the ordinary laws of the land.
Finally, in confronting the menace of terrorism the President of the Republic should not be encouraged by people with vested political agenda to resort to undemocratic tactics associated with military dictators. As Nigeria has successfully replaced autocracy with democracy all actions of the government have to be conducted in strict compliance with the tenets of the rule of law.
In view of the clear provision of the Constitution on the vexed issue of a state of emergency I am compelled to urge the President to ignore the illegal and unconstitutional call for the removal of the Governors of Adamawa, Borno and Yobe States.