The president of the Nigerian Bar Association, Afam Osigwe, SAN, spoke with AJIBADE OMAPE regarding President Bola Tinubu’s recent decision to declare a state of emergency in Rivers State and suspend Governor Siminalayi Fubara along with several other elected representatives.
You He strongly criticized the suspension of the previous governor of Rivers State, Siminalayi Fubara, along with other elected officials. Can you explain your reasons for deeming this move as unlawful?
Initially, specific conditions need to be established for the government to announce a state of emergency, and I feel these constitutional prerequisites have not been fulfilled. The necessary criteria should be satisfied prior to declaring such an emergency.
From the President’s statement, we gather that declaring a state of emergency occurred because the political adversaries in Rivers State were unable to resolve their long-standing disagreements.
Incorporating the matter of bombings targeting oil pipelines, we believe that these incidents, occurring over a span of merely 24 hours, do not warrant declaring a state of emergency.
When examining Section 305(3) of the Constitution, it stipulates that there needs to be either an act of war or external aggression against Nigeria, imminent threat of invasion, significant disruption of public order making alternative legal actions inadequate, along with evident peril to Nigeria’s survival or the happening of any natural disasters impacting the nation.
Were there any disasters or natural calamities impacting Rivers State? Was there a public peril deemed a threat to the federation? No such events occurred! Throughout the years, pipeline explosions have taken place in the Niger Delta region multiple times without a state of emergency ever being announced.
No actions indicate that the explosions of the two pipelines were linked to the leadership in Rivers State. We lack reports suggesting intentional acts meant to endanger public security. Additionally, insufficient time was available for proper verification since the second blast happened mere hours prior to the president’s speech. Consequently, there wasn’t enough time, and as mentioned by the President, they could not settle their disagreements.
How do you view the situation where individuals implicated in the state's political crisis failed to find a resolution?
I prefer not to discuss that particular aspect. However, if declaring a state of emergency becomes too commonplace, every governor in Nigeria faces potential jeopardy since even minor issues within their jurisdiction might prompt such an announcement.
Numerous lives have been claimed in Benue State because of conflicts between farmers and herders without invoking a state of emergency, nor has the government announced specific operations aimed at safeguarding people and their possessions in Benue State, along with other regions such as Borno, Katsina, and Zamfara.
In Rivers, there have been no reported fatalities so far, and it would be unfair to blame the governor for failing to safeguard people’s lives and properties. It is widely known that the governor and the state Commissioner of Police do not see eye-to-eye. In fact, the Commissioner of Police disregards orders from the governor.
The governor does not oversee the State Security Service. He also has no control over the Army. Therefore, the complete security framework in Rivers State remains outside the jurisdiction of the state government. These organizations do not take orders from him. How then will he safeguard lives and assets?
Considering all these factors, one can comprehend our stance that the current situation in Rivers State does not warrant a state of emergency. Additionally, when suggesting that this might be due to an incapacity to address the issues at hand, it’s worth noting that the governor attempted to submit a budget to the state House of Assembly as mandated by the Supreme Court, only to find himself barred from entry.
What would you have him do in such circumstances? How can he be held responsible for the ongoing crisis in Rivers State? Is the discord among politicians justifiable grounds for a collapse? Benue State seems to be experiencing an unvoiced political rift, yet this issue stays unnoticed.
We believe, even though we're not admitting it outright, that if the federal government needed to proclaim a state of emergency to implement exceptional actions addressing the issue, this wouldn’t include the authority to remove the governor and the assembly members from their positions. Such power simply doesn't exist.
According to Section 11(4) of the Constitution, declaring a state of emergency cannot lead to the dismissal of a governor; this point is explicitly stated within the document. Additionally, Section 11(2) indicates that during an emergency, the House of Assembly retains the authority to enact legislation.
Therefore, we believe that the steps taken in Rivers State are neither accurate nor constitutionally sound. It also seems inappropriate for the President to claim he has suspended an elected governor. Such action might constitute a coup against the Constitution since the document doesn’t account for this scenario and shouldn't receive approval from the National Assembly, whether through the declarations or the suspension orders.
You characterized the ousting of these elected representatives as a perilous challenge to democratic principles. What implications does this have for the future of Nigeria’s democracy?
This establishes a precedent that we ought not to emulate. We should be capable of acknowledging our errors and hasty actions, with the aim of maintaining national tranquility, reversing such decisions can be justified. However, allow me to express this: I view this policy as exacerbating conditions in Rivers State. Though I lack concrete evidence, my intuition suggests it won’t contribute to peace within Rivers State.
How does the present scenario contrast with previous occasions when states of emergency were declared in Nigeria?
During his tenure as president, Olusegun Obasanjo dismissed several governors. Notably, the present president, who was part of the opposing political factions at that time, criticized Obasanjo for this action—especially regarding the removal of Joshua Dariye—and argued that such an act was not in line with constitutional principles.
Goodluck Jonathan announced a state of emergency, and although I'm uncertain, I believe Borno State was among those impacted, alongside several others. Nonetheless, the President, who led the opposition back then, argued that declaring a state of emergency was unconstitutional because it failed to satisfy the criteria outlined in Section 305.
Thus, we see one case where a president dismissed governors and faced criticism, as well as another instance where a president chose not to dismiss governors but still encountered criticism. In essence, declaring a state of emergency does not provide unlimited permission to oust or disintegrate democratically elected administrations or governmental bodies. This remains our stance.
What steps will the NBA take beyond releasing a statement regarding this matter? Are they planning any legal action or advocacy initiatives?
At this moment, a letter ought to be handed over to the Office of the Attorney General, prompting him to gather all interested parties aiming to discover a way to step back from the edge. Additionally, we plan to contact other influential individuals within Rivers State with hopes of uncovering a resolution.
An additional choice before us involves pursuing litigation; however, we aim to allow space for alternate conflict resolution methods to address the matter in Rivers State. Should these alternatives prove unsuccessful, the NBA will explore the possibility of resorting to legal proceedings at court to ascertain whether the actions under discussion conform with constitutional principles or not.
What might be the potential long-term effects if elected representatives could face suspension without following proper legal procedures?
This poses a danger to democracy. It indicates that certain individuals could engineer an environment of instability with the aim of disbanding a governor and undermining democratic institutions. Essentially, this transforms governance into rule by individual fiat rather than adherence to constitutional principles.
This indicates that everything is unpredictable, and for virtually any cause, a governor could face suspension or permanent removal, while the same applies to the House.
What particular legal actions can be taken to contest Fubara’s suspension?
It is anticipated that the judiciary will refrain from supporting any unconstitutional actions since, according to Section 66 of the Constitution, the judiciary must rely on legal principles and factual evidence to support constitutional integrity. Although I haven’t done so before, I am calling for this now.
Regarding Fubara’s suspension, I’ll let his legal advisors guide him. I’m not his attorney, nor would I like to appear as though I'm recommending specific actions. It’s important for me to tread carefully. As the NBA president, I act as an unbiased, nonpartisan figurehead. My stance is one of neutrality; thus, I shouldn’t offer advice.
In what way does this scenario impact the principle of federalism in Nigeria, and do you believe that state governments are experiencing a loss of autonomy due to excessive federal intervention?
When a president has the authority to simply through broadcasts empower himself to suspend the governor, his deputy, and even the House of Assembly, this indicates that the principles of federalism are eroding. In such scenarios, states function akin to pupils under an authoritarian headmaster—the president—who wields the power to punish or expel these state entities without cause. Such dynamics foster a "big brother" mindset wherein the president’s decisions are unquestionable and absolute. To uphold the spirit of federalism effectively, it becomes imperative to adhere strictly to constitutional stipulations.
I direct your attention once more to Section 11(4) of the Constitution, which states that neither the governor nor their deputy may be dismissed from office by the National Assembly. Additionally, see Section 118 for details on circumstances under which a governor might vacate their position. Permitting actions deemed unconstitutional would imply that the federating units or sub-national entities within Nigeria hold significance only at the discretion of the President.
Do you believe a constitutional amendment is necessary to avoid such occurrences in the future?
You can utilize laws effectively, and they might function well in some places, but if these laws are implemented in a nation lacking respect for legal authority, they won’t be effective. The United States Constitution has stood strong for more than two centuries, consisting merely of several key articles. We have the ability to modify our constitution whenever we see fit.
If, however, we fail to uphold the tenets of our constitution, shirk accountability in leadership, and disregard the rule of law and due process, these amendments will offer us no advantage.
Nations with less comprehensive constitutions are often functioning more effectively than us. They adhere to their legal frameworks, treating them as universally applicable standards. In contrast, we disregard our own laws and behave as though they were meant only for others. Consequently, this fosters an image of the law being designed exclusively for those who lack power and influence.
Unless we ensure that our laws are effectively implemented, amendments won’t bring about the beneficial transformations observed elsewhere. This hinges on holding the government accountable and maintaining transparency, adhering strictly to legal principles, and ensuring fair procedures. Any deviation from these elements will lead us to keep revising the constitution without improving the outcome.
What legal or policy changes do you suggest implementing to avoid a recurrence of the dispute in River State?
Every measure intended to stop the misuse of emergency powers is outlined within the Constitution itself. This is because the Constitution establishes clear conditions for invoking a state of emergency; these provisions are already established. Therefore, I have no new recommendations to offer regarding preventing potential abuses of authority in the future.
The required measures are established, and extensive scholarly work exists regarding actions permissible during emergencies and conditions for declaring them. No additional insights from me could surpass what scholars of constitutional law and specialists have already documented. The focus should be on those implementing the Constitution acting appropriately rather than public commentary.
I'd direct your attention to Section 11, where it clearly states that declaring a state of emergency doesn’t result in removing a governor. Beyond what the constitution stipulates—that such actions shouldn't occur—people continue to act otherwise. Thus, our focus must remain on upholding the Constitution. Any discussion deviating from this point would merely be empty talk; it would amount to nothing but hot air.
Provided by Syndigate Media Inc. ( Syndigate.info ).
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