The Nigerian Bar Association (NBA) has strongly criticized the recent declaration of a state of emergency in Rivers State by President Bola Tinubu, calling the move “unconstitutional” and a dangerous precedent for Nigeria’s democracy.

In a statement released on Tuesday, the NBA, through its President, Afam Osigwe, SAN, emphasized that the President lacks the constitutional authority to remove an elected governor, deputy governor, or state lawmakers under the guise of an emergency rule.

“The 1999 Constitution does not grant the President the power to remove an elected governor, deputy governor, or members of a state’s legislature under the guise of a state of emergency,” the NBA asserted.

The association further stated that the Constitution provides clear procedures for the removal of a governor and deputy governor as per Section 188, and similarly, the removal of members of the House of Assembly and dissolution of parliament is governed by constitutional provisions and electoral laws.

The NBA questioned whether these constitutional procedures were followed in the current situation.

The NBA pointed out that while Section 305 of the Constitution allows the President to declare a state of emergency, it also stipulates strict conditions and procedural safeguards to prevent any infringement on democratic governance and fundamental human rights.

“The political crisis in Rivers State does not meet the constitutional threshold of a complete breakdown of public order to justify a state of emergency,” the statement read.

It added that the declaration of emergency does not automatically dissolve or suspend elected state governments, and the President is not empowered to unilaterally remove elected officials, describing such actions as a “fundamental breach of Nigeria’s federal structure.”

Naija News reports that the NBA also highlighted that a declaration of a state of emergency must be ratified by the National Assembly within a specified timeframe, as outlined in Section 305(2) of the Constitution.

“A proclamation issued by the President under this section shall cease to have effect if it is not approved by a resolution of the National Assembly within two days when the National Assembly is in session, or if the National Assembly is not in session, within ten days after it reconvenes,” the statement quoted from the Constitution.

The NBA stressed that without National Assembly approval, the declaration of a state of emergency in Rivers State remains “constitutionally inchoate and ineffective.”

The NBA strongly warned that suspending elected officials under emergency rule sets a dangerous precedent that undermines democracy.

“The purported removal of Governor Fubara, his deputy, and members of the Rivers State House of Assembly is unconstitutional, unlawful, and a dangerous affront to our nation’s democracy,” the statement declared.

The association called on the National Assembly to reject any unconstitutional attempt to ratify the removal of Rivers State officials, stressing that such a move could be misused to unseat elected governments in the future.

It urged all stakeholders, including the judiciary, civil society, and the international community, to closely monitor the situation in Rivers State.

In conclusion, the NBA reiterated its commitment to upholding the Constitution and protecting Nigeria’s democracy.

“The removal of elected officials under the pretext of emergency rule is unconstitutional and unacceptable. Nigeria’s democracy must be protected at all costs, and the Constitution must be upheld as the supreme legal authority in all circumstances,” the statement concluded.

President Goodluck Jonathan did not suspend governors when he declared a state of emergency in three north-eastern states in 2013 because it was unconstitutional, according to Mohammed Bello Adoke, the former attorney-general of the federation.

Adoke dedicated a whole chapter to the issue in his memoir, ‘Burden of Service: The Reminiscences of Nigeria’s Former Attorney-General’, published in 2019 by Clink Street (London & New York).

He said the 1960 constitution empowered the federal government to make its own laws on emergency rule and that allowed the Tafawa Balewa administration to suspend the premier of the Western region in 1962.

“While the 1961 State of Emergency Act allowed for the removal of Premiers,” Adoke wrote, “the 1979 Constitution and, subsequently, the 1999 Constitution, spelt out how to declare a State of Emergency. The removal of a Governor is definitely not included in the provisions.”

On Tuesday, President Bola Tinubu declared a state of emergency in Rivers state and suspended Governor Simi Fubura as well as the state house of assembly.

Below are excerpts from the book.

STATE OF EMERGENCY

On 13 May 2013, the President declared a State of Emergency in three of the North Eastern states of Adamawa, Borno and Yobe owing to the Boko Haram insurgency that was ravaging those areas. The security situation was getting out of hand in those states, despite the efforts of the Armed Forces to contain the terrorist group. There was already political tension in Northern Nigeria arising from the 2011 presidential election. Some pol- iticians had been credited with inciting statements, including that they would make the country “ungovernable” if Jonathan won. They claimed that he had “stolen” the turn of the North. With the unrelenting insecurity and violent situation, which, in fact, worsened two years after the 2011 elections, Nigeria found itself in disequilibrium. The President needed the declaration of State of Emergency in the troubled states in order to deal with the insurgency.

When the issue came up, there were discussions as to the extent the President could go. However, since the insurgency was not spread all over those states, the local government areas most affected were identified. Rather than declare total emergency in the states, the President limited it to those local government areas so that security manpower could be concentrated there to contain the situation. He also did not remove or suspend any Local Government Chairman or Governor. For the first time in Nigeria’s history, an emergency was declared with the political leadership in place.

I had advised the President that he was free to declare a full or partial State of Emergency as provided in Section 305 of the Constitution which states that the President may, by an instrument published in the Official Gazette of the Federation, issue a proclamation of a State of Emergency in the Federation or any part thereof. Subsection 2 states that the President shall, after the publication, transmit the Gazette containing the proclamation, including the details of the emergency, to the President of the Senate and the Speaker of the House of Representatives, each of whom “shall forthwith convene a meeting of the House to consider and decide whether to pass a resolution approving the proclamation.”

The Constitution specifically stipulates that the President shall have powers to declare a State of Emergency only when the Federation is at war, is in imminent danger of invasion or is involved in a state of war, and there is an actual breakdown of public order in the Federation or any part, to such extent as to require extraordinary measures to restore peace and security. That is, the occurrence of imminent danger or disaster, or natural calamity affecting a community, or a section of the community in the Federation, qualifies as emergency warranting such a proclamation. Under Subsection 4, the Governor of a state may, with the support of two-thirds majority of the state House of Assembly, request the President to issue a proclamation of emergency in the state, when there is in existence any of the listed situations.

PUBLIC CRITICISM

President Jonathan, predictably, came under criticism from commentators who felt he should have removed the Local Government Chairmen as well as Governors in the affected states. Why declare a State of Emergency and retain the Governors? That was what many commentators said. The opportunity for Jonathan’s foes to describe him as a weak leader emerged yet again! Historically, State of Emergency was employed more as a political weapon to settle scores with opposing forces, not necessarily to address issues of actual or imminent threat to security. Nigerians were more familiar with that nefarious employment of the provision. The fact that Governors in Nigeria cannot be held responsible for any breakdown of law and order is lost on these critics. Governors are the Chief Security Officers of their states only in name; they do not have the requisite constitutional power of control over the secu- rity agencies. Removing them during emergency, to my mind, was simply illogical.

The mentality that a Governor must be removed was most likely derived from what happened in 1962 when, owing to a crisis in the Western Region, government structures broke down. The Premier, Chief S. L. Akintola, had refused to vacate office for his replacement, Alhaji Dawodu Soroye Adegbenro, after being removed by the Regional House of Assembly. The Federal Government had stepped in and appointed Dr Moses Majekodunmi as the Administrator of Western Region, rather than allow Adegbenro to take over as Premier. It was a highly tense political situation. Although Akintola was still a member of the Action Group (AG), his sympathy for the Northern Peoples Congress (NPC), which controlled the Federal Government, earned him a restoration to office.

EXAMPLE FROM FIRST REPUBLIC

Another situation was when President Obasanjo removed Chief Joshua Dariye as Governor of Plateau State in 2004 after declaring a State of Emergency in that state. Chief Akin Olujinmi, then AGF, sought to justify the removal by referring to the Emergency Powers Act of 1961, which provided for the removal of a Premier, the equivalent of a Governor. On 25 May 2004, he was reported to have stated: “Well… you are looking at the Constitution. There are other laws that you have to read along with the Constitution. We have what you call the Emergency Powers Act of 1961. That power was evoked in 1962 in the old Western region, when we had a similar declaration made, and we had Dr Majekodunmi appointed as administrator of the Western Region at that time, so that law is still in existence today. Under that law when you declare a state of emergency, you can appoint an administrator to run the affairs of the state.” (THISDAY newspaper, 25/05/2005, page 40).

I respectfully disagree with that contention. The Emergency Powers Act of 1961 was derived from the 1960 Constitution. They did have an enabling law that gave the Prime Minister the power to declare a State of Emergency and, in the process, remove the Premier and appoint an Administrator to superintend the management of the Region’s affairs. By the time Chief Olujinmi was invoking the Act in 2004, it had become spent.

Because declaration of State of Emergency had been wrongly used by Obasanjo to remove Governors whom he had political differences with, those who thought they loved Jonathan more than he loved himself kept clamouring for it to be used to checkmate Governors. But when I came into office, I took cognisance of the fact that I swore to an oath to abide by the Constitution. I also vowed that as the custodian of the Nigerian Constitution, who must be the legal adviser to all arms of government, I must do what was right.

Irrespective of the pressure, I refused to allow the political persuasion of the government of the day to colour my judgment. I advised the President that while he could declare a State of Emergency, that did not warrant the removal of a Governor. The Governor is the Chief Security Officer of the state, but the Police is centralised under the leadership of the Inspector General. That means Chief Security Officer is nothing but a ceremonial description.

Also, to remove a Governor could bring the President into conflict with the National Assembly. It is not in the interest of the President to take a decision that would not be approved by the National Assembly. That would tend to diminish his executive powers. He must jealously guard his turf and ensure that whatever he does is constitutionally justified. There was no way we would have been able to constitutionally justify the suspension or removal of a Governor through the instrumentality of the proclamation of a State of Emergency, having regard to the provision of Section 305 of the 1999 Constitution.

OBASANJO WANTED EMERGENCY RULE IN OGUN

The issue of the State of Emergency has always been hugely controversial. The essence of declaring an emergency, as we know it, is that there is an extraordinary situation that has defied the standard laws, processes and procedures for restoring order. And to restore order, one is forced to resort to exceptional measures. It was never meant to be used as a political instrument to punish and remove recalcitrant or ‘disloyal’ Governors. The issue ought to have been settled by Attorneys-General over the decades, but probably because of the many years Nigeria was under military rule, no one has paid any serious attention to it.

While the 1961 State of Emergency Act allowed for the removal of Premiers, as Chief Olujinmi alluded to, the 1979 Constitution and, subsequently, the 1999 Constitution, spelt out how to declare a State of Emergency. The removal of a Governor is definitely not included in the provisions. Obasanjo, still thinking State of Emergency could rightfully be used politically and illegally the way he had applied it during his tenure, tried to mount some pressure on President Jonathan in his early days in office in 2010 to apply it to the crisis in Ogun, his home state.

In that case, the Governor of Ogun State, Otunba Gbenga Daniel, had fallen out with Obasanjo over who would control the state executive of the PDP ahead of the 2011 elections. The House of Assembly had also been divided, so Otunba Daniel could not function effectively, especially regarding getting the approval necessary for the N100 billion bond he wanted to get from the capital market. All the intrigues raging through Ogun State had led to a shutdown of the House of Assembly Complex. Government practically ground to a halt.

Obasanjo tried to exert a lot of pressure on Jonathan, urging him to declare a State of Emergency. He wanted Jonathan to suspend Daniel and appoint an Administrator to return things to normalcy. When the President asked for my view, I felt the crisis had not reached a boiling point where he would need to declare a State of Emergency. I further pointed out that there were enough provisions under Section 11 of the Constitution to deal with situa- tions where a House of Assembly of a state is unable to sit. The Constitution provides for the functions of such a State Assembly to be taken over by the National Assembly.

Also, even if there were a need to declare a State of Emergency, it would have been to give some extraordinary powers to the Governor and suspend parts of Chapter 4 of the Constitution which relate to fundamental human rights, as opposed to the removal of the Governor. As I pointed out earlier, the removal of a Governor is nowhere provided for in the mechanism for implementing a State of Emergency. It would have amounted to employing extra-constitutional means to remove a Governor.

One of the arguments I used in convincing the President was to draw his attention to the fact that he also had the power to declare a State of Emergency all over the Federation. I then asked that: “For instance, Mr President, if the country is at war, and you have to declare a State of Emergency, would you remove yourself from office and appoint an Administrator to oversee the affairs of the country?” He agreed with me. He could see that it was illogical to remove a Governor on account of a State of Emergency being declared.

Since we had successfully warded off the use of State of Emergency as a political tool in the Ogun case, it was not too difficult applying the same principles to other suggestions from the marauding hawks. There was still a big battle ahead, nevertheless. As the Boko Haram insurgency continued unabated in the North-East, the hawks told President Jonathan that the State of Emergency, declared by him in May 2013 and renewed in November of the same year, was not effective because the Governors of Adamawa, Borno and Yobe were not removed. Ironically, the three Governors were all of the APC, the leading opposition party.

The potential political gain was glaring. The hawks piled pressure on the President to extend the State of Emergency by another six months and remove the three Governors. This would take us into 2014, when the politicking for the 2015 general election would be in top gear. Two Ministers even drafted a Declaration of Emergency speech and took it to the President. They named three retired Generals to be appointed as Administrators of the affected states. President Jonathan then decided to ask me to make a presentation to the FEC on my position, apparently because he did not want to do anything illegal.

When I got to Council, I marshalled my argument that removing a Governor was not part of the constitutional provisions in declaring a State of Emergency. I told them I do not play politics with matters of law. I also said declaring an emergency was, constitutionally, a shared responsibility between the President and the National Assembly, with the legislature having a superior dominion. While the President can trigger the process, it must be approved by the National Assembly within two days if they are in session and a maximum of ten days if they are not, in which case the President would request that they reconvene to approve his declaration. If the lawmakers refused to approve it, I warned, that would be the end and it would appear to diminish the powers of the President.

A heated debate broke out. Two Ministers, one of them a lawyer that never practised and the other a full-time politician, stood up to me and started an unnecessary argument, insisting that the President could do and undo. The President had to call the house to order as emotions ran high. In the end, President Jonathan decided that he would not violate the Constitution. He did not extend the emergency, much less remove the Governors. In any case, as the Commander-in-Chief of the Armed Forces, he could deploy troops without the approval of the National Assembly.

‘I BECAME AN ENEMY’

I became an enemy of many people in government who accused me of misleading the President. After the FEC meeting, some ministers began instigating the Ijaw leader, Chief Edwin Clark, against me. They said it was “one man” with a “bogus title” of “Attorney-General of the Federation” who prevented the President from removing the Governors and replacing them with Administrators. From what filtered to me, Clark was very angry with me and even suggested that the President “should remove that Attorney-General.” But the President always had my back.

With such a President as your boss, you would always be confident to tell him the truth. If he had resorted to using State of Emergency as a political bazooka, he probably would have had his way as a bully, but he could never have written his name in the hearts of millions who still adore him especially when they compare him with other Nigerian leaders who used their powers to terrorise and subjugate their perceived political opponents. It must be a compliment to President Jonathan that President Buhari has also avoided deploying the State of Emergency as a tool in Rivers, Kwara and Akwa Ibom States, despite the political benefits. It is a worthy legacy.

Governors elected on the platform of the Peoples Democratic Party (PDP) have asked President Bola Tinubu to reverse the suspension of Rivers governor Siminalayi Fubara.

The PDP Governors’ Forum described Fubara’s suspension as a “grievous mistake” and an “atrocious and retrograde decision”.

On Tuesday night, Tinubu declared a state of emergency in Rivers following the prolonged political crisis in the south-south state.

The president also suspended Fubara, his deputy and the members of the state assembly.

Tinubu nominated Ibok-Ete Ibas, a retired vice-admiral, as the administrator of Rivers state.

In a statement issued on Wednesday, Bala Mohammed, governor of Bauchi and chairman of the PDP Governors’ Forum, said the declaration of a state of emergency in Rivers is an “utter misgiving”.

Mohammed said Tinubu’s “silence on the active role played” by Nyesom Wike, minister of the federal capital territory (FCT), in the political crisis in Rivers was “golden and enabling”.

“He (Wike) has become a law unto himself because he was playing out your script. Now we know. This is totally unstatemanly, biased, and divisive,” the statement reads.

“We state categorically that this unwarranted but premeditated attack on Rivers State and the Peoples Democratic Party and other opposition parties is today, the greatest threat to democracy in our dear country, Nigeria and it is an ill wind that will blow no one any good.

“It is a dangerous course of action that will not only endanger our hard-won democracy but will exacerbate the crises in the nation, deepen mistrust, elevate security threats, destroy the economy, and our national cohesion and stability.

“The Nigerian Bar Association (NBA) in its response signed by its President, Mazi Afam Osigwe, SAN, has already expressed grave concern about the purported suspension by the President of the Governor of Rivers State, the Deputy Governor, and the Members of the Rivers State House of Assembly.

“The NBA affirmed their commitment to upholding the Constitution, defending democratic governance, and ensuring that the rule of law prevails in Nigeria.

“President is therefore called upon to listen to wise counsel and the voice of reason, as well as accept that he made grievous mistakes and acted in haste, and reverse this atrocious and retrograde decision before it is too late.

“This authoritarian shenanigan is unacceptable and cannot stand.”

Mohammed said the forum aligns with the NBA and would approach the court to interpret section 305 (3) of the constitution.

Akin Rotimi, spokesperson of the house of representatives, says President Bola Tinubu consulted the national assembly before announcing a state of emergency in Rivers state.

On Tuesday, the president declared a state of emergency in Rivers following the prolonged political crisis in the south-south state.

Tinubu also suspended Fubara, his deputy, and the members of the state assembly.

The president nominated Ibok-Ete Ibas, a retired vice-admiral, as the administrator of Rivers state.

In a statement, Rotimi said the national assembly “was duly consulted” by the president before reaching the decision.

He said Tinubu met with the leadership of the national assembly, including Senate President Godswill Akpabio; Abbas Tajudeen, speaker of the house; Benjamin Kalu, deputy speaker; Michael Bamidele, senate leader; and Julius Ihonvbere, leader of the house; and Nuhu Ribadu, national security adviser (NSA), before the broadcast.

Rotimi said Kayode Egbetokun, the inspector-general of police (IGP); Adeola Ajayi, director-general of the State Security Service (SSS); and Mohammed Mohammed, director-general of the National Intelligence Agency (NIA), also attended the meeting.

“During this meeting, they were fully briefed on Mr. President’s intentions, and all present unanimously expressed their support,” the statement reads.

Rotimi added that Tinubu’s letter informing the house of representatives of his decision and seeking approval on the state of emergency in Rivers in line with section 305 of the constitution has been transmitted to the green chamber and would be read during plenary on Wednesday for further legislative action.