By Inibehe Effiong
The emergency powers granted the president under section. 305 of the 1999 Constitution (as amended) and under the Emergency Powers Act 1961 do not enable to remove a governor in whose state a state of emergency is declared. Under the present constitutional regime, 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 dispensation, it remains an illegality and we all know Obasanjo with his military back ground had an unenviable record of illegalities and disdain for democratic ethos and Rule of Law during his sadistic and 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 government versus President of the FRN & ors, on technical ground (the academic nature of the res or subject matter of that case), the spirit and letter of the law does not envisage the removal of a governor during the declaration or currency 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. Examples of such powers include; assent to Bills passed by the State House of Assembly under section 100 of the Constitution, power of prerogative of mercy under Section 212 and appointment of members of the State Executive Council amongst others. Only a governor or an Acting governor can exercise those functions, and the circumstances under which an Acting governor emerges does not include when a state of emergency is declared.
The phrase ‘Sole Administrator’ is a constitutional aberration which cannot be found, not even impliedly, in any of the 320 sections of the 1999 Constitution. It is a military terminology which cannot be imported into our current democratic dispensation by any stretch of interpretation. State of emergency is state of emergency and not state of the military.
All that happens in a state of emergency is that certain overriding measures are taken to restore calm, public order and protect lives and properties. It allows for limited violation of individual liberties, such as freedom of movement.
We seem to have forgotten that a state of emergency is not solely applicable when security of life and property is threatened to such an extent that radical measures are required as occasioned by the dastardly, imbecilic and monstrous activities of the outlawed Boko Haram sect. Indeed, under section 305 of the 1999 Constitution, a state of emergency may be declared in the event of natural disasters. The question then is, if an earthquake occurs (God forbid) in my state, Akwa Ibom, as a result of the many years of attacks on the land owing to exploitation of crude oil, neglect of the environment or any other probable cause, will the state governor, Godswill Akpabio, who is reported in the media to have suggested the removal of the three governors of the states under emergency be ousted from office because an earthquake has occurred in his state?
Again, it should be stated that under the Constitution, a state of emergency may be declared either in parts of the federation as currently going on or throughout the federation. Does it then mean that President Jonathan would cease to hold office if the activities of Boko Haram (again God forbid) spreads throughout the country necessitating the declaration of a state of emergency in the whole of Nigeria? If the declaration of a state of emergency either in parts or throughout the federation is what those agitating for the ouster or suspension of the affected governors mean by “total and partial state of emergency”, it would had found expression at some level of legal exegesis and intellectual discourse.
Those clamouring for the removal of the elected state governors affected by the state of emergency declared in the three North-east states of Adamawa, Borno and Yobe are 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.
Inibehe Effiong via firstname.lastname@example.org