By Ebun-Olu Adegboruwa, SAN
Duration and Renewal:
If the Proclamation is approved by the National Assembly as required by the Constitution, the Proclamation shall be in force for six months. It is subject to renewal for another six months through a resolution by each House of the National Assembly. That approval has several meanings in law and in fact. Legally speaking, it is an approval procured following due process of law as recognized universally, not approval in principle or approval taken for granted and deemed. The process of approval ought to be part of the legislative exercise of checks and balances since the legislative arm constitutes the direct voice of the people. That process has to be painstaking, elaborate, transparent and in tandem with conditions precedent for it to enjoy validity. I cannot honestly vouchsafe the process adopted by the National Assembly in the Rivers State emergency case.
Revocation
The Proclamation shall cease to have effect if revoked by the President by instrument published in the Official Gazette of the Government of the Federation or if the National Assembly fails to reach a two-thirds majority resolution within the time stipulated or after a period of six months has elapsed since it has been in force provided there is no renewal or extension of the life of the proclamation.
Whether the President adhered to these steps – assuming the issue of removal of elected officers did not arise – has been a subject of public debate among stakeholders and interested members of the public. In the view of many, the powers exercised by the President in the Rivers State emergency declaration are far too wide and expansive, to the extent of suspending elected representatives of the people and appointing a sole administrator over them. If the concept of federalism as stated in the Constitution is to be upheld, how do you get the federal executive council to be the approving authority for the affairs of a State under the Federation? And the absurdity is extended to the approval of budgets for the State by the President’s FEC, which ordinarily should be the function of the National Assembly. The President it was who unilaterally dissolved the democratic platforms, the President it was who single handedly appointed and imposed a sole administrator on a whole State and the same President is the one also presiding over the Federal Executive Council to exercise supervision over the affairs of Rivers State. In essence therefore, it is the President who is the sole administrator.
THE CONSTITUTIONALITY OF THE PRESIDENT SUSPENDING ELECTED PUBLIC OFFICERS IN A STATE UNDER SECTION 305 OF THE 1999 CONSTITUTION – A CRITICAL APPRAISAL
Since the Proclamation by the President, many trees have died for paper and much cyber ink spilt under the burden of a wide-range of opinions for and against the action of the President. Debate has continued to rage over the constitutionality of the manner in which the President went about the Proclamation. We shall x-ray the Proclamation by Mr. President against certain relevant provisions of the Constitution.
People-Participatory Constitutional Democracy
Consequent upon the decision of the Nigerian people to have a paradigm shift from autocracy following protracted struggle and mass campaign for liberation from military dictatorship, the 1999 Constitution was made and given to themselves, in principle at least, in accordance with the principles of democracy. The very spirit thereof was to have a government of the people, by the people and for the people. Section 14 (1) & (2)(c) clearly spells out the intention of the people of Nigeria to participate in their own governance, thus:
“The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.
It is hereby, accordingly, declared that:
The participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.”
It is concerning that there was no adequate consultation of the relevant stakeholders before the suspension of their Governor, Deputy-Governor and the elected representatives of the Rivers people before the suspension of their elected officials pursuant to the Proclamation of the President. We submit that the Proclamation of the President was unilateral as no proper communication was allowed. Its foundation is thus vacuous and untenable. Imposing a state of emergency on the people without any form of consultation with them is patently undemocratic, even where it was claimed to have been done under constitutional cover.
The President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria has the undisputed mandate to declare a state of emergency in any part of the country subject to the provisions of the Constitution and the conditions stated therein. What is however not conceded or donated by the Constitution to the President and indeed the Federal Government is the power to suspend or remove elected representatives from office while exercising the right conferred on him by section 305 thereof. But that indeed is the limit because the President is not a god unto himself and he has no powers or rights in our constitutional democracy to arrogate powers to himself or take onto himself the powers of making the Constitution amenable to his whims and caprices. Nigeria as a democratic federation must only survive by the very Constitution that governs it. This is not Communist China, Fascist Italy or George Orwell of 1984. The Constitution provides for the powers of the National Assembly during an emergency rule in any state of the Federation and nothing in the listed functions of the National Assembly empowers the National Assembly to ratify the suspension or removal of the governor and his deputy, I dare say. This, to my mind, renders the action of the President illegal and undemocratic.
Unconstitutionality of the Regime of a Sole-Administrator
Another concerning reality which is totally alien to our democracy is the appointment and swearing in of a Sole Administrator over Rivers State following the suspension of the Governor, his Deputy and members of the House of Assembly. Not only is there nowhere in the Constitution that this strange policy is provided for but also the Sole Administrator – thought ostensibly disallowed to make laws according to the Proclamation – is to make regulations for the ratification of the National Assembly. This invariable translates to a tacit fusion of the executive and legislative functions in one person. This is totally unconstitutional and repugnant to the principles of separation of powers. It will result in abuse of power and erosion of peoples’ government.
While the CFRN clearly contemplated that it is possible for the house of assembly to be unavailable, the Constitution, in the spirit of constitutionalism never anticipated a situation where the seat of the governor would be replaced by a sole administrator. In fact, the term sole administrator is alien to the 1999 Constitution and the appointment of anyone as a sole administrator to administer and govern any state of the Federation is a clear violation of section 1 (2) of the Constitution of the Federal Republic and an ambush on the practical reality of Nigerian constitutionalism. A careful appraisal of Section 11 of the Constitution is needed at this point for a robust comprehension. Here are the provisions of the said section 11 (1)(2)(3)(4):
(1) The National Assembly may make laws for the Federation or any part therefore with respect to the maintenance and securing of public safety and public order and providing, maintaining and securing of such supplies and service as may be designed by the National Assembly as essential supplies and services.
(2) Nothing in this section shall preclude a House of Assembly from making laws with respect to the matter referred to in this section, including the provision for maintenance and securing of such supplies and services as may be designated by the National Assembly as essential supplies and services.
(3) During any period when the Federation is at war the National Assembly may make such laws for the peace, order and good government of the Federation or any part therefore with respect to matters not included in the Exclusive Legislative List as may appear to it to be necessary or expedient for the defence of the Federation.
(4) At any time when any House of Assembly of a State is unable to perform its functions by reason of the situation prevailing in that State, the National Assembly may make such laws for the peace, order and good government of that State with respect to matters on which a House of Assembly may make laws as may appear to the National Assembly to be necessary or expedient until such time as the House of Assembly is able to resume its functions; and any such laws enacted by the National Assembly pursuant to this section shall have effect as if they were laws enacted by the House of Assembly of the State:
Provided that nothing in this section shall be construed as conferring on the National Assembly power to remove the Governor or the Deputy Governor of the State from office. (Emphasis supplied).
