Trends in Emergency Rule in Nigeria’s 4th Republic
Postscript by Waziri Adio
President Bola Tinubu’s declaration of a state of emergency in Rivers State has whipped up a lot of passion and even some tension. This is not unexpected. Apart from oft-raised questions about constitutionality, process and partisanship, a state of emergency is an intervention that has far-reaching implications beyond the immediate actors, and can produce significant unintended consequences. Such consequences could include the needless widening of ethnic, regional and religious fault-lines, and even the seeding of future and more consequential instability. Since a lot depends on the judgement call of one man—the president, who can also be an interested party—this is a highly sensitive tool. The declaration of a state of emergency should only be a last resort, invoked after all other good-faith interventions have evidently failed, and its useshould be seriously circumscribed.
There are some safeguardserected in Section 305 of the 1999 Constitution. But it appears these may not be sturdy enough. There is the latitude about actual breakdown and potential breakdown of public order “requiring extraordinary measures to avert such danger.” Emergency rule, whether mild or maximum, by itself suggests the suspension of normalcy. The window to take unusual measures deemed necessary to restore order is, in my view, too much room. My sense is that the drafters of the constitution intended the legislative arm to provide appropriate and adequate checks. The threshold for legislative approval for emergency is deliberately sethigh, same as what is needed to approve changes to our rigid constitution: two-thirds of all members of each of the two chambers of our parliament (plus 2/3 of the states for constitutional amendment). However, the drafters obviously did not envisagethe various ways in which these could play out in practice.
This is the fourth time that emergency rule will be proclaimed in almost 26 years of uninterrupted civil rule. Without fail, though not without some drama and minor amendments, the parliamentarians have always approved the requests by the different presidents. This is not necessarily because the legislators have been compromised or because they are always in bed with the executive but maybe due to some other reasons that I will get to later. Many speak authoritatively that the emergency powers granted the president in the constitution do not include the suspension of governors, deputy governors and state legislators. They may well be right.
But in three out of four times, the governors and legislators have been suspended in the affected states, with approval by the National Assembly, because such suspensions were deemed by their promoters to have fallen within the scope of “extraordinary measures” required to restore order. The final authority on this should be the Supreme Court, and on two occasions the highest court in the land has dismissed suits brought by suspended governors, albeit on technical grounds: that the Supreme Court has original jurisdiction only in matters instituted by the states or the Federal Government and those governors were not in a position to institute cases for the states when they were under suspension.
To refresh my memory, I have gone back to read media coverage of the three previous proclamations of emergency rule in the Fourth Republic: Plateau State in 2004; Ekiti State in 2006; and Adamawa, Borno and Yobe states in 2013—there was a limited one in 2011 affecting 15 LGAs in four states: Borno (5), Yobe (5), Plateau (4) and Niger (1). The details are different, illustrating the point that no two emergencies are the same. Taken together with the current case and the reactions to all of them, I can see some broad patterns. I will use relevant examples from the three cases to illustrate these patterns, without getting into the weeds of the present case.
Before doing this, a quick recap of the contexts. On 18th May 2004, President Olusegun Obasanjo declared a state of emergency in Plateau State. That was the first in this dispensation. Plateau State had been rocked by ethno-religious violence that, by some account, led to the death of about 5000 people. In his broadcast, Obasanjo savaged the governor of the state, Mr. (later Senator) Joshua Dariye: “As at today, there is nothing on ground and no evidence whatsoever to show that the state governor has the interest, desire, commitment, credibility and capacity to promote reconciliation, rehabilitation, forgiveness, peace, harmony and stability. If anything, some of his utterances, his lackadaisical attitude and seeming uneven-handedness over the salient and contending issues present him as not just part of the problem, but also as an instigator and a threat to peace.”
Obasanjo suspended Dariye and the members of the state’s House of Assembly. (He initially didn’t suspend the deputy governor, but the National Assembly included this in their approval.) Obasanjo appointed General M.C. Alli (rtd.) as the sole administrator for a period of six months.
It was the turn of Ekiti State on 18th October 2006. Prior to the proclamation of emergency rule in the state by President Obasanjo, three people were claiming to be the governor of the state: Mr. Ayo Fayose, who had been impeached in a controversial manner by the state legislators on 16th October 2006; Mrs. (later Senator) Abiodun Olujimi, the state’s deputy governor, who was impeached alongside the governor; and Chief Friday Aderemi, the speaker of the House of Assembly, who had upgraded himself to acting governor.
It is worth adding that 24 of the 26 legislators started the move to impeach Fayose after they were repeatedly quizzed by the Economic and Financial Crimes Commission (EFCC). The legislators sacked theChief Judge of the state, Justice Kayode Bamisile, when he set up a seven-member investigatory panel that they thought was loyal to Fayose. Theyappointed an acting chief judge who did their bidding; then they proceeded to impeach Fayose and his deputy to make the speaker the acting governor. Obasanjo said there was a breakdown of constitutional order which could lead to further violence and instability. He came down hard on the state legislators for their overreach. He suspended the governor, the deputy governor, the acting governor and the state legislators for six months. He appointed Brig-Gen Tunji Olurin (rtd.) as administrator for the same period.
On 14th May 2013, President Goodluck Jonathan proclaimed a state of emergency in three states in the North East after an escalation of attacks by Boko Haram on government targets and security forces in the affected states. The emergency was to ensure a surge in military deployment and to give the troops and other security agencies the latitude “to take all necessary action… to put an end to the impunity of insurgents and terrorists.” The governors and the state legislators were not suspended, and rightly so—probably because they were not evidently part of the crisis (unlike the way Dariye and Fayose were in their respective states).
However, part of the approval that President Jonathan got was for the three governors and the legislators to take instructions on security issues from him or whoever he designated and to have power over the allocations to the states but only for compensation and rehabilitation of those affected by the order. These too were extra-ordinary measures not expressly allowed in the constitution. If the gazetted proclamation had not been amended by the National Assembly, Jonathan wanted the governors and the state legislators to be taking instructions from him on all matters while their states were under emergency rule and for him to have the liberty to expend the allocations due to the states. The state of emergency in these states was extended twice but denied the third time. This was the only emergency that went beyond six months.
Now, to the patterns. The first is that there is always a sharp and strong difference of opinion anytime a state of emergency is declared. There has not been any time that a proclamation met with universal approval. Or disapproval. No matter the proximate cause and no matter how light or harsh the extraordinary measures deployed are, the declaration of emergency rule usually surfaces division. This division can take interesting turns. Obasanjo suspended Dariye and Fayose, both of whom are Christians, one from the North Central and the other from the South West. And both were governors produced from the same party as Obasanjo, the Peoples Democratic Party (PDP). That didn’t make the suspensions less controversial.
The leadershipof PDP supported and lobbied for both suspensions. The opposition was divided on Dariye’s: the All Nigeria Peoples Party (ANPP) supported the suspension while the Alliance for Democracy (AD) and All Progressive Grand Alliance (APGA) strongly opposed it. The Conference of Nigerian Political Parties (CNPP) accused Obasanjo of having a hidden agenda. The north was divided: the Christian north was against; while most from the Muslim north were in support. The Middle Belt Forum described the emergency as hasty and unjust. The Christian Association of Nigeria (CAN) and the Pentecostal Fellowship of Nigeria (PFN) not only condemned the state of emergency as unfair but also called for same treatment for Kano State where there had been reprisal attacks.
The emergency in Ekiti was opposed not just by the opposition parties but also by the Nigeria Governors Forum (then headed by Governor Lucky Igbinedion) and a group of parliamentarians mostly from PDP under the aegis of the 2007 Movement who alleged that Obasanjo was trying to resuscitate the defeated Third Term Agenda by moving to declare emergency in states and possibly in the whole country. This was the time when a legislative approval of the proclamation looked most unlikely. The states affected by Jonathan’s state of emergency in 2013 were opposition and northern states; and are all states with Muslims in majority while he is Christian. The fact that he didn’t remove the governors should have minimised the division. But most northerners, especially those from the North East, condemned the action. The main opposition parties, Action Congress of Nigeria (ACN) and the Congress for Progressive Change (CPC), naturally opposed Jonathan.
The second pattern, which is related to the first, is that political parties and prominent individuals pitch their tent based on their political alignments or interests. All Progressives Congress (APC), whose legacy parties stridently opposed earlier iterations of emergency rule and the suspension of governors, is now the leading advocate of what it used to oppose. In the same vein, PDP is now the leading antagonist of what it used to actively promote. There are also individuals who have taken interesting positions. The case of a certain Bola Ahmed Tinubu, as governor of Lagos State, is well known. On 19 May 2004, he issued a statement declaring the suspension of Dariye as unconstitutional: “there is no doubt that the proclamation…is a brazen breach of the constitution and portends grave danger to the republic.”He is now the same person who, as president, has imposed emergency rule in Rivers State and has suspended the governor, the deputy governor and the state legislators.
Late Gani Fawehinmi, SAN, condemned Dariye’s suspension as wrong and “a violation of the constitution” and a throwback to 1962 (when the first state of emergency was declared in the country in the then Western Region). He asked Obasanjo himself to resign. But Fawehinmi expressly supported Fayose’s suspension, urged the National Assembly to ratify the presidential proclamation, and called on EFCC to arrest and try Fayose for alleged corrupt practices. It is possible to square Fawehinmi’s positions: he probably believed the president (and not the governors) should have overall responsibility for security in states but he would support any means to fight corruption. But how is one suspension inferior or superior to another suspension?
The 2013 emergency in Borno, Adamawa and Yobe states had an unusual critic: Chief E.K. Clark. He said there the three governors and the state legislators should be suspended. On 24th April 2014, Chief Clarkissued a statement that: “There is nothing like partial declaration of a state of emergency in the 1999 Constitution; what section 305(c) of the 1999 Constitution contemplates is the recourse to ‘…extraordinary measures to restore peace and security’ where there is ‘breakdown of public order and public safety.’ This in effect means that all democratic institutions should be suspended to permit the military exercise full control until peace and order returns.” It is conceivable that, were he alive, Chief Clark would have (for obvious reasons)decried the state of emergency in Rivers State.
The third pattern is that, despite the strident oppositionwithin and outside the political space, National Assembly members have always approved presidential proclamations of state of emergency. In some instances, there would be open debate; but in all instances, they go into executive sessions (including sometimes into more than one such session in a day) where they are possibly briefed on and where they likely discuss intelligence reports that cannot be put in the open. I don’t know if they find such intelligence reports convincing. But I reckon that legislators concede that whoever is the president has overall responsibility for national security and has more information than they could possibly have and they would therefore not want to second-guess him or stand in his way or give him an excuse.
I think this applies even when the president and the legislators are at loggerheads or have a cold relationship as in 2006 (when they threw out Third Term but still approved a state of emergency in Ekiti) and in 2013 (when Sen. Aminu Tambuwal as speaker and Jonathan were not the best of buddies and the House still approved emergency in the three North East states). This may also be the reason why the Supreme Court that found against the Federal Government on many issueswould decline to rule that the suspension of the Plateau and Ekiti governors was illegal.
Sometimes, there are other considerations such as small opposition parties going along with their bigger allies because of the day they would need them. Quid pro quo is part of parliamentary politics. Some of the legislators can also be conflicted: having openly supported state of emergency while in the ruling party, some may find it difficult to oppose just because they are now in opposition. So, after the huffing and puffing, the approval process usually becomes a way to fulfil all righteousness: the minority have their say while the majority have their way. Those opposed put their position on record and for those who look up to them. This is also probably why they don’t insist on division or actual counting of votes. Also, members pick their battles, as it is not every hill that is worth dying on. Only three members were seen on record to have spoken against the approval on Thursday and largely they focused on process issues: Senator Seriake Dickson and Hon. Fred Agbedi, both Ijaws from Bayelsa State; and Hon. Obi Aguocha, a Labour Party (LP) member from Abia State.
Another pattern is that though the constitution specifically prescribes ratification by two-thirds of all members of each of the two chambers, the voting is mostly done through consensus or results announced without actual tallying done. The closest to a vote was in 2004 when 95 senators were present on the day the proclamation was approved. After the executive session it was announced that 90 senators voted for and five voted against. The then Senate President, Senator Adolphus Wabara, asked those against to move to a side of the chambers reserved for the minority parties: four from AD and one from PDP (Sen. Uche Chukwumerije). Senator Tokunbo Afikuyomi, one of the four AD senators, protested, asking for a proper division where each senator would stand up, mention their name and signify how they vote. He was overruled. In the House of Reps, it was reported that 261 members voted in favour and 30 against. But there was no record of actual tallying. In fact, Hon. John Longhor, spokesperson of the Plateau State caucus, said they had a list of 59 members who were against the proclamation.
The situation was the same in 2006 and 2013: either those opposed failed to turn up or just allowed the majority to have their way. Sometimes, a number would be announced (as in the total of members that signed the attendance register that day). In 2013, for example, it was announced that 100 senators and 253 members were in attendance when the harmonised version of the proclamation was passed in the two chambers on 24th May 2013. Sometimes, these numbers are contested, but feebly. Even for constitutional amendment, which equally requires two-thirds of all members, there is no evidence that actual rollcall or headcount takes place even when there are mechanisms for electronic voting in the chambers now.
There is a special buzz now about the inappropriateness/inadequacy of voice vote/communityvoting for approval of the state of emergency in Rivers State. A solid case can be made for this. The fact that approval was done unanimously/collectively in the past does not mean such a practice should become the norm. The fact that questions were not asked in the past does not nullify the need for the current questions. Today should be better than yesterday. Especially on contested issues, the threshold for transparency and accountability should consistently be high. I have gathered that some of those opposed to the state of emergency believed that the promoters did not have the numbers for legislative approval. They may or may not be right.
The way to check that would have been to actually test it by doing the heavy lifting of mobilising the applicable party and zonal caucuses before and during the vote for approval. You can’t change a system if you don’t understand its workings or if you are not ready to do the work that can move the needle. Imagine if the leadership of the opposition parties had met with their partymembers (and even sympathisers in the ruling party) and taken a unified position before Thursday, had secured a list of those who would be voting against, had all gathered in the gallery to monitor proceedings and to provide guidance and support to their members, and if the opposition parties had insisted on division or actual headcount or had threatened to walk out en masse if that was not done. That is the realm of real politick.The majority could still have had their way, but would have had to sweat really hard for it. Such an approach would have been more meaningful than vacuous and performative acts like addressing the press while the voting was going on or releasing statements or sowing threads on social media after the fact.
