24th April, 2014
On May 14, 2013, President Goodluck Jonathan declared a six-month state of emergency in Adamawa, Borno and Yobe states following incessant attacks by Boko Haram. After unsuccessful attempts by the military to curtail the insurgency in the three states, the president sought and got the National Assembly’s approval to extend the emergency rule in November 2013 for an additional six-month period. That extension expires next month and Nigerians are anxious to know what the president will do next.
Since the emergency rule was put in place, its effectiveness in checking the insurgents have been in doubt. While the military authorities claim that they are winning the war against the outlawed sect, the boldness and viciousness with which the insurgents carry out their attacks create doubt about the military’s claims. In recent times, the attacks have increased and many lives and properties have been destroyed. Hundreds of female school children abducted by the sect are yet to be found while families of dead victims of the recent Nyanya bomb blasts are still mourning.
As the president and security chiefs seek ways to end the Boko Haram attacks, there are rumours that the president may suspend the three governors; Murtala Nyako(Adamawa), Ibrahim Geidam (Yobe), and Kashim Shettima (Borno) – to further allow the emergency rule to work.
While we do not lend ears to rumours, it is pertinent to remind the president that the emergency powers granted him under Section 305 of the 1999 Constitution (as amended) and under the Emergency Powers Act 1961 does not vest in him the power to remove an elected governor in whose state a state of emergency is declared.
Under the present constitution, an elected state governor can only cease to hold office by impeachment, resignation, permanent incapacitation, death and by expiration of tenure. Any attempt to remove an elected state governor under the guise of declaration of the so-called “full state of emergency” will be unconstitutional.
Though such action is supported by the precedent set in Plateau State during the Olusegun Obasanjo administration, it remains an illegality and we all know Obasanjo with his military background and had an unenviable record of illegalities and disdain for democratic norms and rule of law during his despotic days in power.
Although the Supreme Court had declined to make a definite pronouncement on this vexed issue in the case of Plateau State of Nigeria versus President of the FRN & ors, on technical ground, the spirit and letter of the law does not envisage the removal of a governor during the declaration or period of a state of emergency.
One practical basis for this submission is that there are executive functions under the Constitution that are gubernatorial in nature, that is, exclusive to and only domiciled in the
governor as they are exclusively exercisable by the governor. Such functions cannot be delegated, not even to the deputy governor. All that happens in a state of emergency is that certain overriding measures are taken to restore calm, public order and protect life and properties. It allows for limited violation of individual liberties, such as freedom of movement.
Those clamouring for the removal of the elected state governors affected by the state of emergency declared in the three North East states are obviously suffering from post-military trauma. They are yet to fully disentangle themselves from the devastations which the three decades of military rule brought on us as a nation.
While we are favourably disposed to the renewal and continuation of the subsisting state of emergency, we dismiss as legally, morally and rationally indefensible the call for the removal of the governors of the three states affected by the state of emergency.
There are many other ways of tackling the insurgency including the use of Information Technology, and we suggest that government use such options.
