Rivers: Where Emergency Declaration Fell Short
The Advocate By Onikepo Braithwaite Onikepo.braithwaite@thisdaylive.com
The Advocate
By Onikepo Braithwaite
Onikepo.braithwaite@thisdaylive.com
One thing I can safely conclude about Nigeria is that, if she was Nollywood or Hollywood, she would never be short of content. We constantly move from one drama or other genre of cinema to another, almost on a weekly basis. In a short period of time we have gone from Yahaya Bello to Dele Farotimi to Rt Hon. Meranda to Senator Akpoti and now, ‘Rivers State: The Epilogue’! – the drama/suspense/crime/action of Rivers. It is rather unfortunate that the primary reasons for the Rivers State imbroglio, are said to be matters unrelated to the more serious issues that affect the welfare of the people of Rivers State. By virtue Section 14(2)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution), nothing but the security and welfare of the people of Rivers State should be the primary purpose of their government.
President Tinubu’s Declaration of a State of Emergency in Rivers State
Last Tuesday, by virtue of the power donated to the President in Section 305(1) of the Constitution, HE Bola Ahmed Tinubu, GCFR declared that he was constrained to proclaim a state of emergency in Rivers State for various reasons, including but not limited to the vandalisation of oil installations by militants, the inability of the Governor and the House of Assembly to be able to work together for the peace, order and good government of the State, and the declaration by the Supreme Court in its judgement that Rivers has no Government.
As for the need for the Proclamation, it isn’t necessary to wait until all the oil installations in Rivers are completely destroyed, and a state of anarchy exists before taking action. The Constitution recognises that such a proclamation can be preemptive rather than reactive, using the words ‘danger’ and ‘imminent’ repeatedly in Section 305.
The political tension that existed between the Executive and Legislature persisting since 2023 was obvious to all, particularly with the ‘100’ claims and counter-claims filed in various courts by both sides, and the Governor’s utilisation of his own ‘Lilliputian Legislature’ to run the State.
In terms of economic signs, certainly, oil installations are the mainstay of Nigeria’s economy as they produce her main source of revenue, and this affects not just Rivers, but, the whole country. Nigeria has had problems with meeting her OPEC Quota; so, for people to vandalise oil installations which would further reduce production and consequently, revenue, when the country is already in a precarious economic situation, is irresponsible, undeniably unacceptable, and couldn’t be allowed to escalate. Vandalising oil installations is not just economic sabotage, it constitutes offences within the definition of Terrorism in the Terrorism (Prevention) Act 2011 (as amended in 2013)(TPA), including but not limited to, with malice aforethought: 1) vandalisation of pipelines thereby hurting Nigeria and its economy; 2) allegedly using such vandalisation to compel the Rivers State House of Assembly (RSHA) not to remove Governor Fubara; 3) intimidation of the Federal Government, the people of Rivers State and all Nigerians; 4) destruction of Government facilities; 5) use of explosives without lawful authority; 6) causing explosions and 7) endangering the lives of people.
Quite unfortunately, Governor Fubara who is the Chief Security Officer of Rivers State, stands accused by the Federal Government of being complicit in these unlawful acts, at least, by allegedly standing by and omitting to do anything reasonably necessary to prevent or curtail the aforementioned criminal acts. Of course, it is trite law that he who alleges must prove, and every criminal allegation levelled against Governor Fubara must be proved beyond reasonable doubt. In Buhari & Ors v Obasanjo & Ors (2003) LPELR-813(SC) per Niki Tobi, JSC, the Supreme Court held inter alia that the person who asserts, has a legal duty to prove the correctness of the assertion.
Before NASS’s resolution ‘approving’ the President’s Proclamation of the state of emergency, he had already gone ahead to swear in the Sole Administrator, in breach of Section 305(2) of the Constitution. The use of voice votes of Ayes’ and ‘Nays’ for NASS’s approval, instead of actually counting individual votes for accuracy in determining if the constitutional threshold was met, has also been criticised by Nigerians as being improper. Two-thirds majority in the Senate and House are specific numbers, 73 and 240 respectively, which can only be truly ascertained by way of individual counting.
Suspension of Elected Officials
But, with President Tinubu’s Proclamation, yet another controversy arose as to whether the President can: 1) suspend the Governor/Deputy Governor and RSHA members, who are elected officials, and 2) also appoint a Sole Administrator for the ’initial’ period of six months that the state of emergency is to last. In AG Ogun State & Ors v AGF (2002) LPELR-621(SC) per Sylvester Umaru Onu, JSC, the Supreme Court cited Labiyi v Anretiola 1992 8 N.W.L.R. Part 258 Page 139 at 164 per Karibi-Whyte, JSC where the Apex Court held inter alia that “….where the expression (subject to) is used at the commencement of a statute…., it implies that what the subsection is subject to shall govern, control and prevail over what follows in that section or subsection of the enactment”.
In this case, Section 305(1) is ‘subject to’ the provisions of the Constitution, which doesn’t provide for suspension. And, while other constitutional provisions may not expressly address what procedure to adopt in the implementation of the process to calm an area and return it to normalcy, there are some relevant provisions which Section 305(1) is subject to, like Section 45(3) of the Constitution which envisages only the limitation of rights of citizens vis-à-vis Sections 33 & 35 thereof, in a state of emergency; and Section 11(4) which confers on NASS the power to perform the functions of a State House of Assembly when the latter is unable to, except the power to remove the Governor or Deputy. The logical conclusion is that, if NASS that is constitutionally empowered to remove a President/Vice cannot remove a Governor/Deputy even when it’s performing the role of a State House of Assembly which is only empowered to remove and not suspend them, it follows that not only has the Constitution not given anybody including the President the right to suspend, only a State House of Assembly can discipline a Governor/Deputy for misconduct by the process of removal.
Does Section 305 of the Constitution, give the President powers that aren’t included in the Constitution, which is binding on all persons and authorities in Nigeria, including the President, who, in his oath of office (see the Seventh Schedule to the Constitution), has also sworn to uphold the Constitution (see Sections 1(1)& 24(a) of the Constitution)? I think not. A state of emergency enhances the powers of the Government, but doesn’t suspend the Constitution which remains in effect, nor does it prevent democratic institutions from functioning. See for example USA’s National Emergencies Act of 1976, which permits the Government to reallocate funds, grants congressional oversight, but doesn’t suspend the Constitution or democratic institutions when an emergency is proclaimed.
It is unconstitutional to suspend elected officials, as having not contemplated this, not only does the Constitution make no provision for their suspension under any circumstances, they are representatives of the people in whatever capacity they are elected to, and this right is guaranteed to the people by Section 14(2)(a) & (c) of the Constitution. In Speaker, Bauchi State House of Assembly v Rifikatu Samson Danna (2017) 49 W.R.N. where the Respondent was suspended from the Bauchi House of Assembly indefinitely, the Court of Appeal held that the Respondent not being an employee of the House, could neither be suspended, nor the salaries and allowances withheld. Similarly, Governor Fubara, Deputy Governor Odu and the RSHA Members are not appointees of the President or the Federal Government, but elected representatives of the people. On what authority therefore, would the President be able to suspend them? The repeated exclusion by the makers of the Constitution, of the option of suspension of elected officials, even in areas where it could have been included, particularly those that cover discipline, means that it isn’t an omission on their part, but their deliberate intention that suspension of elected officials wouldn’t be an option under any circumstances.
What the Constitution contemplates, is the removal of the Executive or recall of Legislators. Section 188 provides for the process of removal from office when there is an allegation of gross misconduct against the Governor or Deputy, while Section 110 provides for the recall of State Legislators. This process is quite different from ‘suspension’, which, even though it isn’t provided for by the Constitution, is a temporary measure preventing the Governor, Deputy and the RSHA Legislators from functioning during the six months period. Some have argued that Sections 11(1),(3) & 12(1) of the Emergency Powers (Repeal and Re-Enactment) Bill 2017 (or Act 2018, if it was passed) empowers the President to suspend elected officials. If such a law exists, it is void to the extent of its inconsistency with the Constitution, which always prevails. See Section 1(1) & (3) of the Constitution.
What the President has done, is to temporarily dissolve (close down) RSHA for a period of six months. The Constitution doesn’t donate such powers to anybody. By virtue of Section 105(1) & (3) of the Constitution, the dissolution of a State House of Assembly is on the expiration of four years from the date of their first sitting, and it’s only the Governor of the State that is empowered to proclaim its first session or dissolution after four years. NASS is only empowered to extend the four year period for six months at any one time, if Nigeria is at war, and the President considers that it is impracticable to hold elections, and the State where there is to be an extension is physically involved in the war. In short, the Constitution recognises the President’s indirect power in the case of a physical war in a territory, to extend the tenure of a State House of Assembly, not to dissolve it. Also see Section 64 of the Constitution for NASS.
Appointment of a Sole Administrator
Possibly, the pertinent question to ask here, is whether, unlike the suspension of elected officials, the appointment of a Sole Administrator is able to pass the test of qualifying as an ‘extraordinary measure’ in the River’s situation, in the context of Section 305(3)(c) & (d) of the Constitution, even though the Constitution doesn’t expressly provide for that. The issue of appointing an Administrator to work alongside/supervise the elected officials to restore normalcy isn’t unreasonable, as it is normal that some oversight apparatus must be put in place.
The fact that NASS amended President Tinubu’s Proclamation to include a Reconciliation Committee and recourse to it by the Sole Administrator prior to taking any action appears to be appropriate, as these are the usual types of mechanisms deployed for Legislative oversight of the process, and to prevent Government’s abuse of a state of emergency. Of course, another controversy has arisen as to the choice of Sole Administrator – why an ex-military officer, and whether he is neutral. Only time will tell.
Governor Fubara’s Alleged Gross Misconduct
The truth of the matter is that, with the five counts of gross misconduct levelled against Governor Fubara by 26 RSHA Members in a Notice of Allegations of Misconduct dated 17/3/2025 brought pursuant to Section 188 of the Constitution, his removal would most likely have been inevitable. The destruction of the RSHA Premises, and the other Terrorism allegations levelled against him by the Federal Government (which he has since denied) are grave criminal offences that would certainly qualify as sustainable grounds if proven. It however, appears as if the President didn’t want Governor Fubara to be impeached, and used a political solution of ‘suspension’ not recognised by the Constitution instead, to avail Governor Fubara/Deputy Odu with another bite of the cherry.
Conclusion
It is discouraging that 26 years into a democratic dispensation, instead of evolving progressively, Nigeria appears to be regressing into a civilian autocracy where it has become normal for the Constitution to be observed in its breach by elected/public officials.
Does any emergency situation permit a President who is operating under a Constitution, to breach it? I think not. I do concede that during a state of emergency, some rights like that of movement or assembly, for instance, can be limited, and there could be an infusion of military presence into the affected area to maintain law and order, but, because it is not unusual for Governments to abuse their powers in a state of emergency, particularly to subdue the opposition, it is necessary for the Constitution/law to clearly and cohesively define the administrative process that must be followed in a state of emergency, including preventive measures to forestall the abuse of the situation. The Constitution appears to be lacking in this regard, as not only is better clarity required, having to run around various provisions of the Constitution for answers is not the best.
On the part of NASS, while their first two amendments to the President’s Proclamation appear to be fine, in the case of the third, that is, suspension, one expected that they would have declared the suspension of elected officials to be unconstitutional and rescinded it, instead of purporting to recognise the President’s powers to suspend elected officials by asking him to consider lifting the suspension before the expiration of the six months, if certain conditions are met. Of course, this comes as no surprise, since NASS itself is known to suspend its own members unconstitutionally. The fact that RSHA Members were said to have thanked the President for suspending them is laughable, and confirms my previous assertion that many Lawmakers are not only unfamiliar with the provisions of the Constitution and the laws they enact, they appear not to understand them!
No matter how good the intentions of the President may have been in trying to resolve the Rivers State crisis, he can only do so within the ambits of the Constitution. The hybrid of the constitutional and political solutions to the Rivers problem, cannot be without regard to the provisions of the grundnorm.
Finally, how does the action of the President suspending the Executive and Legislature of a State look, vis-à-vis the principles of Federalism and Separation of Powers? Strange!
