By Taiwo Olanegan
Our history of legislative brigandage in 1962 must have prepared the hearts of the law writers to include Section 11 in the 1999 Constitution of Nigeria. It provides that the National Assembly would take up the functions of the state assembly should occasion demand it. Although there was no express mention of a state of emergency in Section 11, the framers of our Constitution knew that an abominable anomie may cause a House, a distinguished one, to lose its certificate of occupancy to the National Assembly.
There is no contestation about the powers of the president to declare a state of emergency. The furore is over whether the president has the power to suspend a governor. Before we dive into the emergency situation, let’s interrogate the relationship between the office of the president and the office of the governor. Who is a president? He is a person elected to occupy three distinct offices. He is the Executive President – the administrative leader and accounting officer of all the assets and liabilities of the Federal Government of Nigeria. Thus, as president and CEO, he can enter on behalf of the country into contracts with Shell, Siemens, and the Republic of Saudi Arabia to build refineries, power stations, and religious tourism. He can appoint ministers, university heads, and sack the CBN governor as part of his administrative functions as president.
Secondly, he is the commander-in-chief of the armed forces. Officially, President Bola Tinubu is a general in the Nigeria Army. No puns intended. He may deploy soldiers, commission officers, and command troops should he wish. And during a declaration of emergency, his military officers and troops are on standby to help him suspend validly passed laws and obey nothing else but his military orders. This sounds too harsh and unbelievable to a democratic ear? But that is just the definition of a state of emergency. It essentially means the partial or temporary suspension of civil law and its replacement by martial law.
Thirdly, the president is also the head of state. The Nigerian state is called the Federal Republic of Nigeria. It consists of a central government, 36 states, and 774 local governments. The 36 states are headed by elected governors. They are subnationals and semi-autonomous entities. Although the Rivers governor is an elected official by the pleasure of the Rivers voters, yet the power he holds is primarily on behalf of the Nigerian State, under the Constitution of the Federal Republic of Nigeria. The governor of Rivers is not elected by the ‘Constitution of Rivers State’. At inauguration, he does not swear to uphold the Constitution of Rivers (by the way, there can never be any). Rather, he swears the oath of fidelity and allegiance not to the Federal Government but to the Federal Republic of Nigeria, led by the head of state, President Bola Tinubu. Thus, this may not be palatable to our political sentiment, but the head of state, metaphorically, is the boss of the 36 state governors. How is this so?
The governors and the citizens under these sub-federal and semi-autonomous units spend the currency issued by the head of state, hold the passport controlled by the head of state, and cannot go in and out of the country except through ports, airports, and land borders controlled by the head of state. And so many more. A governor cannot even conduct a major election in his domain; the INEC that would conduct his election is a body appointed by the head of state!
The framers of our Constitution, after its first stop in Section 11, foresaw that aberrant persons and arrant situations may arise within this Republic of 36 states; that the arms of normal laws may be slow or inadequate to quickly check or quench. Thereby, it issued extra-large powers to the head of state in Section 305 to declare a state of emergency – for emphasis, a situation where normal laws are suspended, martial or military laws are temporarily imposed – to remedy a condition where public order, safety, and national security are threatened.
So, what happens during a state of emergency? First, the president enters into his office as commander-in-chief of the armed forces to act accordingly. That’s why you saw President Bola Tinubu summoned his security chiefs before the March 18 proclamation. He didn’t meet with the Federal Executive Council; he needn’t have met with any governor; he didn’t meet with his political party. He only consulted with his military troops – with the mandate to suspend the law that established the Rivers House of Assembly and the office of the governor and replace that law with another law in the form of an Order or Proclamation that must be published in the official gazette of the Federal Republic of Nigeria. The implication of the Rivers situation is that the state is now put under the direct governance of the Federal Government of Nigeria to govern it temporarily in conjunction with the national assembly, on behalf of the Federal Republic of Nigeria.
Is the 1999 Constitution silent on the power of the president to suspend a governor? There is no law writer worth their training and wages who would emblazon the pages of a constitution with plain texts that itemize the steps for a president to suspend or remove a governor. That’s a God-forbid situation, and a stab at the tenets of constitutionalism and federalism. The powers of a president are like naked electricity. It is too dangerous to be left floating. It must be covered by an insulator that only a qualified and experienced engineer can handle. That covering is in the wording of a constitution.
A constitution is the most sacred document in a democracy. It’s so sacramental an instrument that its writings must not be too plain, to avoid mischievous interpretation; and some of its meanings may require esoterists to decipher. The Constitution of the Federal Republic of Nigeria, 1999, as amended, is no different. That’s what the honorable justices of the Supreme Court are called and trained to do.
Lawyers who read or study the Nigerian Constitution without the goggles of legal philosophy are often at a loss when they cannot find therein plain answers to certain national or legal questions. But like most sacramental texts, answers are already given, but one requires a long rope of deep jurisprudential thoughts to be able to draw water out of that well of salvation. In constitutional interpretation, often, the law of implied meanings, definition of terms, community reading of constitutional provisions, are powerful tools of jurisprudence to aid legal reasoning. Our law writer presumably did not believe that aberrant persons like Nyesom Wike and Sim Fubara would walk our stage as governors. So, in wisdom, it consigned the matter of removal of governors exclusively to the Impeachment Section.
Nevertheless, Section 11 spoke in grave, sober, dour language as it imagined an arrant situation when a state house of assembly may collapse, with its functions devolved on the National Assembly. It was a section that was given preparatory to Section 305, where the Constitution blatantly gives the head of state and commander-in-chief of the armed forces the authority to temporarily introduce martial law to replace a democratic absurdity in any part of the Republic.
The choice of which person or institution to be retained or suspended during an emergency is at the pleasure of the President, head of state, and commander-in-chief of the armed forces, at least for 48 hours, subject to the ratification of a two-thirds majority of the members of the National Assembly. To disrobe the president of that discretion is akin to creating two masters in a failing ship.
Is this power subject to abuse? Yes, it is. A president could pull the trigger of a state of emergency to kill an opposition when facts do not adequately point to a threat to public order and national security. The Constitution corrected that fear when it made the decision of the head of state subject to the legislature.
We hope this question would climb the hill to the Supreme Court. This essayist cannot wait to read the deeper elucidation of their lordships on the matter.
Olanegan is a legal practitioner
