If patriotism is love of fatherland (nativeland), then it goes without saying that a patriot would always seek to advance the common good. Similarly, a democrat would accept the will of the people and know when to yield the governance stage to the next elected representative of the people. Patriot and democrat would test the selflessness of his actions by asking who will benefit or suffer from his stance. For, ultimately, institutions are only as strong and effective as the people who run them.
The proclamation by President Bola Tinubu of a state of emergency in Rivers State, in a last-ditch effort to end the protracted political crisis that had finally begun to threaten the peace and purse of the entire nation has, predictably, drawn widespread condemnation. And truth be told, President Tinubu laid both of his flanks wide open to the arrows of condemnation by being one of the most unsparing critics of former President Goodluck Jonathan’s more restrained use of the same weapon to deal with a more palpable threat.
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The unbiased critics of Tinubu’s proclamation recognise the need for drastic action, the legitimacy of the “nuclear” option of a state of emergency, but pillory him for the extraordinary step of suspending Governor Siminalayi Fubara, the deputy governor, and the state legislature. There is little doubt that under a strict construction of the constitution, never mind the strictures of democracy, the president would be hard-pressed to name the source of his power to do so.
The Nigerian Bar Association lays out the case succinctly and clearly: “‘Suspension’ or otherwise summary removal of a democratically elected governor and other elected officials is unconstitutional.” Rights activist and rule of law advocate, Femi Falana (SAN), buttresses the case with a slew of judicial pronouncements, including the case of Attorney General of the Federation v. Attorney General of Abia State filed, ironically, by Attorney-General Lateef Fagbemi and decided by the Supreme Court just last year, declaring that the removal of elected local government chairmen and councillors and the appointment of sole administrators or caretaker committees in their stead is unconstitutional.
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Certainly, the Attorney-General cannot deny that the principle of his earlier victory would apply even more sternly to the suspension of elected governors and legislators. So, what advice did he give to the president on the question of suspending the executive and parliament of Rivers State? As this matter is sure to be litigated, we will know soon enough.
Amidst the uproar trailing the president’s proclamation, my aim here is to try to direct attention to the constitution itself as perhaps not the panacea to the problem, after all, and, also, to our nation’s sore lack of democrats and patriots. Regarding the 1999 constitution, not, this time, by dismissing it as the dubious document it is, imposed on the people by a military dictatorship in retreat. Rather, my claim is that Section 305 of the constitution did not anticipate the peculiar problem at hand. And that as a result, it presents any president who must clear the rot in Rivers with a Hobson’s choice, an abject scenario in which strict adherence to its provisions would produce an undesirable result, even skirting absurdity.
Section 305(3) specifies the conditions under which a state of emergency may be declared as follows: war or external aggression against Nigeriaꓼ imminent danger of invasion or warꓼ breakdown of public order and safety to such an extent that ordinary legal measures are insufficientꓼ clear danger to Nigeria’s existenceꓼ occurrence of any disaster or natural calamity affecting a state or a part of itꓼ and such other public danger that constitutes a threat to the Federation.
Governor Fubara tried to no avail to obey the Supreme Court and re-present the state’s appropriation bill before all 31 members of the House of Assembly, the 27 members who had left the party under which they were elected and openly defected to another party having been reinstated, whether or not that was a valid question for determination before the apex court. Dizzy with victory, they chose not to sit for the re-presentation of the appropriation bill and instead served notice of impeachment of the governor.
It is safe to say that the constitution never contemplated the threats, calamity or danger being the very persons whose oath of office charges with the security, good governance and well-being of the nation or any part of it. Rather, the constitution envisages a state governor, for instance, as the beleaguered statesman and woman who would even invite the president to declare a state of emergency in their own province, as enjoined in subsection (5): “The President shall not issue a Proclamation of a state of emergency in any case to which the provisions of subsection (4) of this section apply unless the Governor of the State fails within a reasonable time to make a request to the President to issue such Proclamation (emphasis mine).
While trying to resolve the crisis resulting from the shameful failure of patriotism and statesmanship by the principal belligerents, President Tinubu summoned them to a meeting in Abuja. Terms of peace were drawn up and, it was reported, accepted by the parties. Perhaps the terms will be published someday soon, so we might know who reneged on his commitment and sabotaged the peace we all crave. As it happened, however, the intervention of the Supreme Court by way of its judgement of 28 February, which purported to restate the conditions for peace, only threw one side into a rapturous celebration of victory and empowered it to gun for total victory.
Governor Fubara tried to no avail to obey the Supreme Court and re-present the state’s appropriation bill before all 31 members of the House of Assembly, the 27 members who had left the party under which they were elected and openly defected to another party having been reinstated, whether or not that was a valid question for determination before the apex court. Dizzy with victory, they chose not to sit for the re-presentation of the appropriation bill and instead served notice of impeachment of the governor. They did so against the rising threat of a serious breakdown of the peace and stability of the state, which was already at boiling point. Impeaching the governor for complete control and total victory beyond even the Supreme Court’s gift became the only task to be done. After all, the heavens would not fall, as hubris announced.
The critics, in the main, are right but it is the hard lot of a president to act despite the inadequacies of laws and the intransigence of warring citizens. In this matter of the rot in Rivers State, both sides — Governor Fubara, on the one hand, and the reinstated state legislators, on the other — were the very fons et origo, the source and origin, of the whole trouble. This fact alone makes the Rivers situation different or distinguishable from the previous declarations of emergency by former presidents Jonathan and Muhammadu Buhari.
What would it have meant to preserve the status quo? We don’t need a soothsayer to tell us: Fubara would have been impeached at the speed of light, annihilated by the 27 reinstated legislators carrying out the publicly stated wishes and intention of their powerful “godfather,” the preceding governor and serving Minister of the Federal Capital Territory. And Tinubu would have been guillotined for handing over the head of Fubara to a man who, though from the main opposition party, is widely believed to have worked for him during the presidential election. And as oil pipelines exploded, and the streets were stirred, and the Niger Delta became ungovernable again, exacting cruel punishment on the nation’s strained purse, Tinubu would be accused of sacrificing the state on the altar of his 2027 calculations.
What if, somehow, the impeachment failed? Then Tinubu would be charged with propping up a governor who demolished the state House of Assembly and abolished a co-equal arm of government. In the light of the Supreme Court’s annulment of the local government elections conducted without fulfilling the condition precedent of publishing the voters register, he would also be accused of enabling the intolerable situation of a one-man dictatorship in Rivers State.
I wouldn’t be surprised, therefore, if the Attorney-General’s only defence of President Tinubu’s suspension of the governor, his deputy, and the state assembly is necessity. One of the many notes for the future constitution truly made and enacted by “We the people” must be to cover this gaping hole. The constitutional or orderly transfer of power and preservation of the peace in all circumstances, must anticipate the complexity of human affairs and the naked will to power of political actors…
It may be argued that either scenario would have been avoided by invoking the powers of the National Assembly to assume the functions of the Rivers Assembly under section 11 (4) of the Constitution, but the effect would be the same, given that the State Assembly would, by implication, be suspended during the period of the emergency. Yet, it should be noted that this is a power conferred on the National Assembly, where a State Assembly is unable to discharge its legislative duties for reasons other than ousting the governor to placate a godfather.
Even a casual observer could not have failed to see that events were fast spiraling out of control, with Fubara’s inevitable impeachment lighting the fuse. It seems to me that the constitution, not having anticipated a situation in which the elected custodians of the peace would also be a clear and present danger to the realm, leaves a worrisome lacuna. The necessity to act in a way that best safeguards the peace required that neither feuding camp be allowed to beat its chest and the war drums, nor be placed in a pivotal position of securing a scorched earth victory during the emergency period of restoring normalcy.
I wouldn’t be surprised, therefore, if the Attorney-General’s only defence of President Tinubu’s suspension of the governor, his deputy, and the state assembly is necessity. One of the many notes for the future constitution truly made and enacted by “We the people” must be to cover this gaping hole. The constitutional or orderly transfer of power and preservation of the peace in all circumstances, must anticipate the complexity of human affairs and the naked will to power of political actors, more so in our country where we seem doomed to practice democracy without democrats, and patriotism, love of fatherland above the self, is an alien concept.
Which, really, is my main argument. On 3 March, nearly two weeks before the proclamation, I made this same point on AIT’s Kakaaki morning programme, where the topic was the Lagos State House of Assembly’s speakership battle and the crisis between the Rivers State governor and former governor Wike, who controlled the House of Assembly. Midway into the programme, a technical glitch took us off air but so important was the topic to AIT that it was repeated the next morning, at which time I was able to elaborate on my claim that our problem is that Nigeria seems to be uniquely bereft of patriots and democrats in government.
If patriotism is love of fatherland (nativeland), then it goes without saying that a patriot would always seek to advance the common good. Similarly, a democrat would accept the will of the people and know when to yield the governance stage to the next elected representative of the people. Patriot and democrat would test the selflessness of his actions by asking who will benefit or suffer from his stance. For, ultimately, institutions are only as strong and effective as the people who run them.
In the epoch of Donald Trump, who would not only flatly refuse to accept that he lost an election but also mobilise a mob to violently ransack parliament and prevent it from certifying the transfer of power, the fragility of even the most hallowed institutions in the absence of devoted patriots and democrats is all too obvious. To come back home, in Lagos State, the patriotic spirit led to compromise and a peaceful resolution. In Rivers, sadly, self-interest and hubris made it impossible for reason to prevail and led inexorably to the state going under political receivership.
Ogaga Ifowodo, a lawyer, poet and writer may be reached at [email protected].
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