BY
S. O. GAVIN DAUDU, ESQ
PHD, NOTARY PUBLIC.
I have exercised some restraints since the declaration of a state of emergency in Rivers State by the President of the Federal Republic of Nigeria.
However, I am now compelled to contribute to the debate on whether or not the declaration of a state of emergency in Rivers State by the President is unconstitutional on grounds of the suspension of the Governor, Deputy Governor, members of the State House of Assembly and the appointment of a Sole Administrator in Rivers State?
In order to address the above posal, two fundamental legal issues must be resolved one way or the other:
1. Whether or not the President is empowered under the 1999 Constitution to declare a state of emergency in Nigeria or any part thereof?
2. Whether or not the President has acted ultra vires his powers under the 1999 Constitution in the declaration of a State of emergency in Rivers State?
The first legal issue is easily resolved. Section 305 of the 1999 Constitution empowered the President to declare a state of emergency in Nigeria or any part thereof. Therefore, the President is empowered by the express provision of the Constitution to declare a state of emergency in Rivers State.
However, the second legal issue can not be easily resolved without a judicial interpretation of the nature, scope, details, and permissible limits to which the President may exercise the powers conferred by statutes, the Constitution in the declaration of a State of emergency.
Therefore, it is unfounded, hasting, and premature to hold, posit and conclude that the state of emergency declared in Rivers State by the President is unconstitutional.
However, a careful interrogation of section 305 will provide an insight into a revelation that different results will be reached in each case where a state of emergency is declared.
Section 305 provides as follows:
305. (1) Subject to the provisions of this Constitution, the President may by instrument published in the Official Gazette of the Government of the Federation issue a Proclamation of a State of emergency in the Federation or any part thereof.
(2) The President shall immediately after the publication transmit copies of the Official Gazette of the Government of the Federation containing the Proclamation including the details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation.
(3) The President shall have power to issue a Proclamation of a State of emergency on when:
(a) the Federation is at war;
(b) the Federation is in imminent danger of invasion or involvement in a state of war;
(c) there is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security;
(d) there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;
(e) there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation;
(f) there is any other public danger which clearly constitutes a threat to the existence of the Federation or
(g) the President receives a request to do so in accordance with the provisions of subsection (4) of this section
(4) The Governor of a State may, with the sanction of a resolution supported by two-thirds majority of the House of Assembly, request the President to issue a Proclamation of a State of emergency in the State when there is in existence within the state any of the situation specified in subsection (3)(c), (d) and (e) of this section and such situation does not extend beyond the boundaries of the State.
(5) The President shall not issue a Proclamation of a State of emergency in any case to which the provisions of subsection (4) of this section apply unless the Governor of the State fails within reasonable time to make a request to the President to issue such Proclamation.
Let it be noted that section 305(2) vest discretionary powers on the President to be the sole determinant of the details of the State of emergency declared, which will ordinarily include, nature, scope and the limits of the emergency so declared.
Furthermore, it should be stressed that the nature, scope, limits and effects of a State of emergency declared in accordance with section 305(3), (a), (b), and (e) of the Constitution are radically different from the nature, scope, limits and effects of emergency declaration made pursuant to section 305(3), (c), (d) and (f) of the Constitution.
It is, therefore, hasting to generalise the nature, scope, limits, and effects of the State of emergency declaration in Rivers State as unconstitutional without a careful and indept interrogation of section 305 of the Constitution.
Those who opined that the State of emergency declared in Rivers State is unconstitutional can be likened to the Proponents of the extravergant version of the Rule of Law who erroneously believed that there can be a system of government that is totally rule based to the elimination of a structured exercise of discretionary powers in a constitutional and democratic setting
The Supreme Court has held that the invasion, demolition of the Rivers State of Assembly Complex, deployment of Rivers State resources without an appropriation Law duly passed by the House of Assembly, the unlawful seizure of the salaries and other entitlements of the 27 members of the Rivers State of Assembly by Governor Sim Fubara without a court order constitute a flagrant abuse and the extinction of the institutions of government in Rivers State and abrogation of the House of Assembly. In essence, there has not been government recognised by the 1999 Constitution in Rivers State prior to the declaration of a state of emergency by the President of the Federal Republic of Nigeria.
If the suspension of the House of Assembly in Rivers State by the Governor without reference to any provisions of the Constitution or a court order enabling him to so do, and without being touted as unconstitutional by these commentators, what now made a State of emergency which included the suspension of the Governor in the suspension exercise unconstitutional having regards to the provisions of section 305 of the Constitution?
It was also erroneously canvassed that the suspension of the Governor and House of Assembly amount to removal from office. There is a clear distinction between suspension and removal from office.
A Governor can be removed from office in accordance with section 188 by State House of Assembly.
A Governor can be removed from office through a court order.
A Governor can resign from office in accordance with section 306 of the Constitution.
A Governor may be suspended in accordance with section 305 (1), (3), (c), (d), (f) and (5) of the Constitution if the Governor is in anyway fingered in any of the circumstances mentioned thereto.
A Governor who demolished the House, a Governor who dramatically invaded the House of Assembly under the guise of budget presentation without the invitation of the House and purported representation of State budget not being slated for debate by House of Assembly, could be said to be promoting peace, order and security in the State?
Meanwhile suspension must be therefore be distinguished from removal from office.
Suspension implies the state of being temporarily held or stopped whether that is in context of a mixture, a punishment or a legal proceeding.
While a removal implies the action of taking away or abolishing something unwanted or the dismissal of a person from a job.
Flowing from the above, it is unfounded to equate the suspension of the Governor and the Rivers State of Assembly to removal from office.
What then is the tenor of the declaration of a State of emergency in a state of the Federation? A declaration of a state of emergency acknowledges that the inequalities of the past will need to be corrected through a deliberate and extraordinary measures as captured in section 305(1) and (3), (c), (d) and (f) of the Constitution which may include the suspension of the Governor and his Deputy along side the already suspended House of Assembly by Governor of Rivers State. Thereby correcting the inequalities in the suspension exercise in Rivers State. That the appointment of a Sole Administrator in Rivers State was necessitated by suspension of two political organs of the State
Conclusion
The extent to which the powers of emergency can be exercised by the President in accordance with section 305 is discretionary, especially when such declaration was not made under subsection (3), (g) and (4) of the same section. It is therefore not supported by any constitutional provision for any assertion to the effect that the state of emergency declared in Rivers State by the President is unconstitutional. Noting that the unconditionality assertion of the State of emergency in Rivers State is vague and utterly misplaced, with a firm submission that it is only the courts that can declared as unconstitutional the State of emergency declared in Rivers State by the President of the Federal Republic of Nigeria.