Rivers LGs: Between Law and Circumstance

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Controversies and questions continue to trail the proclamation of a state of emergency in Rivers State last month by President Bola Tinubu, GCFR. And, the more the state of emergency persists, the more lapses we see in the Nigerian procedure in that regard.

Controversies

Last week, some women of Rivers State led a peaceful protest, calling for the restoration of the suspended Governor, Sim Fubara. I also heard some complaints about the Rivers State Sole Administrator, Vice Admiral Ibas (Rtd) (RSA), going beyond his ‘powers’ by appointing 23 Administrators for the Local Government Councils (LGCs) in Rivers State. In APC & Ors v Enugu State Independent Electoral Commission & Ors (2021) LPELR-55337 (SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC (now CJN), the Supreme Court held thus: “A Governor who occupies his office as a result of a democratic exercise has a bounden duty to preserve, in all its ramifications, the existence of democratically elected Local Government Councils”. However, the the RSA isn’t a democratically elected Governor, nor does it appear that the ousted LGC Chairmen themselves were democratically or rather, properly elected, according to the definition of Section 7 of the 1999 Constitution of Federal Republic of Nigeria (as amended)(the Constitution), and in accordance to the relevant provisions of the Electoral Act 2022 (EA). 

Of course, we all know that the RSA was appointed by the President. following his proclamation of a state of emergency in Rivers State. As to the legitimacy of the appointment of a Sole Administrator in such circumstances, or the extent of his/her ‘powers’, we really do not know. The Constitution is largely silent on the procedure to adopt following the proclamation of a state of emergency, let alone who specifically has what powers, and the law doesn’t clearly set out what process to follow either. See Section 305 of the Constitution. All we know is that, procedures to be followed in the event of a proclamation of a state of emergency differs from country to country, depending on their laws in that regard, and that, in such circumstances, the Executive arrogates more powers onto itself, ostensibly to restore normalcy to the area. The Legislature is there to perform oversight functions, while the Judiciary should remain as a check and balance on the other two arms of government, particularly to ensure that the process is not abused by the Executive.

Global best practices  however, usually do not allow a Constitution to be suspended (as that would be tantamount to something akin to a coup d’état, where martial law/autocracy/dictatorship takes over); just some fundamental rights may be limited. See Section 45(2) & (3) of the Constitution, such as freedom of movement (curfews and the like). 

Kenya vs Nigeria

The laws relating to state of emergency in Kenya, appear to be more clearly stated than Nigeria’s. For instance, Article 58 & 132(4)(d) of the Kenya Constitution 2010 (KC) empower the Kenyan President to declare a state of emergency, while Article 58(6)(a) thereof only permits the limitation of fundamental rights included in the Bill of Rights contained in Chapter 4 of the KC, to the extent that the limitation is required by the emergency. This is instructive. Rights are only limited to the extent that they are required to be restricted depending on the particular situation, and all actions taken during a state of emergency must comply with the KC. 

In our case, Section 305 of the Constitution makes the Nigerian President’s proclamation of a state of emergency more or less sacrosanct, without question, particularly when the Legislature appears to have a ‘consensus ad idem’ (meeting of the minds) with the Executive! The Constitution doesn’t expressly provide for the appointment of a Sole Administrator, but, can we juxtapose the fact that, in the Rivers situation, the two arms of government, the Executive and the Rivers State House of Assembly (RSHA) had been at loggerheads almost since their inception (thereby disallowing them to function properly), into the Kenyan situation that requires a particular limitation of rights depending on the type of emergency, and define the Rivers Executive/RSHA saga as such a situation that required some special measure in order to get the State Government running properly again? And determine that the appointment of a third party temporarily to work subject to the National Assembly (NASS), was therefore, an extraordinary measure required in the context of Section 305 of the Constitution, and use that as a justification for the appointment of a Sole Administrator?

Article 58(5)(a) & (c) of the KC allows the Supreme Court of Kenya to decide on the validity of the state of emergency, and enquire into any legislation or action taken in consequence of such declaration. So, in Kenya, apart from Legislative oversight in the case of a state of emergency, the Judiciary, acts as a check and balance on the other arms of government. Constitutionally, their Supreme Court is empowered to invalidate a state of emergency. In Kenya, Citizens, Residents, Legislators and NGOs can also challenge the validity of a state of emergency. So, if we were in Kenya, the issue of the validity of the state of emergency, if the circumstances in Rivers State met the threshold for the declaration; the appointment of the RSA, and even allegations against the RSA, that he has exceeded his remit and is doubling as a Governor and Legislature all rolled into one, taking unilateral actions that he isn’t empowered to, would have been before the Supreme Court by now. There is no clear provision for this type of challenge in Section 305, unless Section 6(6)(b) of the Constitution can cover it.

Article 192(1)(a) of the KC allows the President to suspend a County Government inter alia, in an emergency arising out of internal conflict (possibly like that of Rivers State) for a period not exceeding 90 days, on the expiration of which, elections to the County Government shall be held. However, the Senate is empowered to terminate such suspension any time (see Article 192(4) of the KC). Nigerian law doesn’t have such provisions. However, the KC doesn’t appear to provide for the appointment of a Sole Administrator. If there’s no conflict necessitating the suspension of the County Government, the Governor with an emergency response team, National Government Officials and the County Commissioner, put all their hands on deck to restore normalcy, ensuring that the KC and rule of law are upheld. In short, in Kenya, any measures that are undertaken during a state of emergency cannot be extra-constitutional. If we look at Kenya and other countries, instruments of democracy remain in place during an emergency. 

Appointment of LGC Administrators by RSA

Now, as to whether the RSA can appoint interim Administrators to replace elected LGC Officials and man the LGCs; normally, the answer is No. In Ajuwon & Ors v Governor of Oyo State & Ors (2021) LPELR-55339(SC) per Ejembi Eko, JSC, His Lordship stated the true position of the law rather succinctly, holding thus: “…. that an elected person is not an employee of anybody, except the electorate that voted him in. It is only the electorate, that can fire him. Democratic elections should always be sacrosanct in this country, like in any other country, for democracy to thrive. Local Government Chairman and Councillors, being persons duly elected by the people, cannot just be removed, and their Councils dissolved whimsically and arbitrarily by any other elected persons in clear abuse of their office and powers. It is not right in law and under the Constitution, to do that”. This position was restated in the recent landmark case of AGF v AG Abia & Ors (2024) LPELR-62576 (SC) per Habeeb Adewale Olumuyiwa Abiru, JSC thus: “Now, the fact of the existence of a democratically elected system of governance at the Local Government level being sacrosanct and non-negotiable, and not to be tampered with by State Governments and that it cannot be replaced with Caretaker Committees, is not new”.

But, would this be the position, whether it is a Governor or Sole Administrator, if the LGC elections that ushered in the LGCs were invalidated, as in the case of that of the Rivers State LGCs? Could such LGCs be described as democratically elected, in the context of Section 7(1) of the Constitution, to be preserved? The Apex Court decided that they were not democratically elected. In SC/CV/1105/2024 & SC/CV/11056/2024 APC v Rivers State Independent Electoral Commission (RISIEC) & 4 Ors Judgement delivered on 28/2/2025 per Jamilu Yammama Tukur, JSC, the Apex Court declared the LGC elections conducted in Rivers State on 5/10/2024 ushering in the new LGC Officials as null, void and invalid on the grounds that they were conducted in violation of the EA, including Sections 150, 9(1),(3), (6), 28-30 & 103 thereof. Improper notice of the holding of the election; continuous update of the voters register less than 90 to the election, were some of the grounds cited in support of the nullification of the election. 

The 0ctober 2024 LGC election having been nullified, left the leadership of the LGCs vacant. The plethora of authorities refer to the removal of democratically elected LGCs by Governors, and replacing them with Caretaker Committees, and not when the elections that ushered in the LGCs were declared to be invalid, like the Rivers situation where the Apex Court so declared the 2024 Rivers LGC elections. The case of AGF v AG Abia & Ors (Supra) per Emmanuel Akomaye Agim, JSC emphasises the fact that, the local governments shall be by democratically elected LGCs. 

However, in this current situation of an emergency, the answer as to whether the RSA can appoint LGC Administrators until fresh elections are conducted is still No, at least, not without the prior approval of NASS that is presently acting in place of the RSHA, by virtue of their amendment of the President’s proclamation, and also Section 11(4) of the Constitution, which provides for NASS taking up the functions of a State House of Assembly when the latter is unable to perform its functions, except for being unable to remove the Governor or Deputy. It goes without saying that, subsequent upon the nullification of the Rivers LGC October 2024 elections, fresh elections would have to be conducted in accordance with the provisions of the EA. Even if we may be able to justify the President’s appointment of the RSA as an extraordinary measure under Section 305 of the Constitution, the RSA draws his powers to make decisions from that amended Proclamation of the state of emergency via NASS, via Section 11(4) of the Constitution. The RSA isn’t empowered to make decisions, without the approval of NASS. 

Conclusion 

Finally, I would say that even if the RSA sought and obtained the approval of NASS to appoint the 23 Administrators to man the Rivers LGCs, using the precedent in Section 191(2) of t  he Constitution where the Speaker of the House of Assembly holds office until fresh elections are conducted, in the event that the office of Governor and Deputy are vacant, the highest ranking officials within the LGCs should have been the ones appointed to man their respective LGCs in the interim. Also see Section 146(2) of the Constitution, which provides for the Senate President to hold office temporarily when the office of the President and Vice is vacant, until fresh elections are conducted within three months. The Constitution doesn’t appear to contemplate a situation where ‘strangers’ are brought in to take up elective positions, no matter how temporary the arrangement may be.