The president’s action can be justified, using the legal principle of the doctrine of necessity… The doctrine is a legal principle which originated from ancient Roman law and has been used in many countries to solve an unanticipated legal problem… The doctrine of necessity is used to justify an action that would otherwise be illegal or unconstitutional. It is used where the government needs to take extraordinary measures, as in the Rivers State situation, to respond to emergencies and threats to national security.
By now, it ought to be visible to the blind and audible to the deaf that if the courts haven’t made a pronouncement on an issue, any legal practitioner, no matter how well decorated, ought to be circumspect in declaring such an issue as illegal or unconstitutional.
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Section 6(1) of the Constitution of the Federal Republic of Nigeria (as amended) states that “the judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.”
Section 6(6)(b) further states that the judicial powers “shall extend to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
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As such, the fact that distinguished Senior Advocates of Nigeria or professors of law have declared the State of Emergency declared by President Bola Tinubu as illegal and unconstitutional, does not make it so. We still have to await the pronouncement of the court on the matter.
Nigerians will recall that in the count down to the 2023 presidential election, not a few senior lawyers declared with magisterial authority that a candidate, in addition to scoring the highest number of votes cast at the election and meeting the required constitutional spread, must score one-third of the votes in the FCT before he can be declared as president.
Thanks to the court, we now know that those senior lawyers were either projecting their preferences or expressing their personal opinions.
Here we are again, without any judicial precedent to act as a guide, not a few legal practitioners have beaten their chests and declared that the declaration of a State of Emergency in Rivers State by the president is unconstitutional.
Is it ?
Sadly, some lawyers who are counsel to the parties in the case, without disclosing their interest in the matter, have also been very vociferous in condemning the action of the president, especially with regard to the suspension of the governor and his deputy and the House of Assembly.
This makes one recall the line in William Shakespeare’s play, Henry VI, Part 2, Act 4, Scene2, when the character, Dick the Butcher, a rebel declared: “The first thing we do, let’s kill all the lawyers.”
Butcher’s statement was a sad commentary on the perceived corruption and abuse of privilege and power by lawyers.
If the truth must be told, many a senior lawyer are in good company with the politicians who dragged the country to the state of emergency in Rivers.
Certainly, those who goaded the governor into presenting a budget to a four-member House of Assembly, which passed the budget in a few hours, are legal practitioners. This is an action that the court subsequently described as ‘indecent haste.”
The court also described the action as “a strange conduct in a democratic setting and in contempt of the subsisting order of court dated 30.11. 2023 and 7. 12. 2024, respectively.”
The court also added that the governor was clearly in violation of section 96 of the 1999 Constitution (as amended) which provides that:
“The quorum of the House of Assembly shall be one third of the members of the House. Four out of 31 members of the Rivers State House of Assembly cannot by any stretch of the imagination constitute the required quorum for transacting a legislative business of the Rivers State House of Assembly. The conduct of the Appellant (the Governor), in presenting the Appropriation Bill to four out of 31 members of the Rivers State House of Assembly is a gross violation of Section 91 of the 1999 Constitution (as amended), he swore to uphold when he took the oath of office and oath of allegiance of the Constitution.”
Sadly, many of those who have condemned the declaration of the Statement of Emergency, have not the read the Supreme Court judgment upon which the declaration was predicated.
Section 305 of the Constitution of the Federal Republic of Nigeria (as amended) empowers the president to declare a Statement of Emergency, when there is a clear and present danger of an actual breakdown of public order and safety in the federation or any part thereof.
There seems to be no controversy over that. The point of disagreement has been whether the section or any section of the Constitution grants the president the power to suspend an elected governor and the House of Assembly.
Political watchers have noted that even if the Assembly had succeeded in removing the suspended governor and his deputy, the beneficiary would be the speaker. That, they argue, was a recipe for a crisis of a great proportion, as the Ijaw, who were on the gubernatorial seat for the first time, would do everything possible to protect the suspended governor, who is their kinsman.
In declaring the State of Emergency and suspending the governor, his deputy and the House of Assembly, the president, in his speech, referenced the 18th of February judgment of the Supreme Court as one of the triggers of his action.
Delivering the judgment, Justice Emmanuel Akomaye Agim, who read the lead judgment, with the concurrence of Justices Uwani Musa Abba Aji; Ibrahim Mohammed Musa Saulawa; Chioma Egondu Nwosu-Iheme; and Jamilu Yammama Tukur, described Governor Siminilayi Fubara’s rule as a “despotic rule.”
According to the court, the governor’s “fear of impeachment by the House of Assembly is no justification for his attacks on the House of Assembly, the Constitution, the Government of Rivers State and the Rule of Law. Political disagreements cannot justify these attacks and contempt for the Rule of Law by the Governor of a State or any person. What the 8th Respondent (the Governor) has done is to destroy the government because of the fear of being impeached.”
The finding of facts by the Supreme Court showed that the suspended governor had perfected the art of disobeying court orders.
On 4th July, 2024, the Court of Appeal had already ruled that the Martin Amaewhule-led Assembly was the authentic one and pronounced that the Rivers State High Court, per Justice Wali J, had no jurisdiction to entertain the application of whether the Martin Amaewhule-led members’ seats can be declared vacant.
The suspended governor’s lawyers must have encouraged him to ignore this pronouncement of the Court of Appeal.
Then on 10th October 2024, in Governor of Rivers State V. Rivers State House of Assembly (2024) LPER, 62961, the Court of Appeal ruled that the governor cannot validly claim to have presented the budget if he presented it to only four members of the Rivers State House of Assembly.
Section 287 (2) of the Constitution of the Federal Republic of Nigeria (as amended) is clear that “the decision of the Court of Appeal shall be enforced in any part of the federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Court of Appeal.”
It is clear from the foregoing that this disobedience to court orders has grave implications for the rule of law and democracy.
Justice Okon Abang was so worried by this disobedience to court orders that he warned about a situation in which a governor refuses to obey the order of a court because he does not like it, condemned it and warned that such an attitude could signify the death of democracy, which is predicated on the rule of law and not the rule of might.
“Where a party or person makes an attempt to disparage an order of court as in this case, the court that made that order or another court of competent jurisdiction that is seised of the proceedings where the alleged disobedience is raised should do everything possible to protect its order. This is to maintain the integrity and sanctity of the court of law,” his Lordship lamented.
When the suspended governor withheld the funds of the Assembly; removed the clerk and the deputy clerk of the Assembly; used caterpillar, bulldozers and other earth-moving equipment to pull down the Assembly (all these in disobedience of the court orders obtained by the 27 members of the Rivers State House of Assembly), wasn’t this an invitation to anarchy?
So concerned was the Supreme Court that it declared in its 18th February judgment that the suspended governor “has passion in violating the provisions of the Constitution that he swore to uphold, with impunity, disobeying court orders at will, using his immunity under section 308 of the 1999 Constitution as a cover, is breaking the bridge over which he himself will cross. It is like someone living in a glass house throwing stones. It is my humble view that it is an act of indiscipline bordering on excessive use of executive might which is unbecoming of someone with good moral culture, otherwise, how else would one explain a situation where four out of 31 members of the Rivers State House of Assembly, without any lawful excuse placed before the court, sit in a hidden place, purporting to transact a legislative business of the Rivers State House of Assembly. This is a joke taken too far.”
Not done, the court concluded: “The situation in Rivers is that of dictatorship and has nothing to do with democratic governance.”
So, when members of the Rivers State House of Assembly, in fulfilment of their constitutional obligation began the process of the removal of the suspended governor by serving him a notice of impeachment in accordance with section 188 of the Constitution, the suspended governor was captured on video telling his supporters to wait for his signal directing them when to strike.
As if on cue, two pipeline explosions were recorded with the attendant grave economic implications for the country, as Rivers State can be described as the main source of revenue for the country. And security reports made available to the president did not exonerate the suspended governor.
And one thing was certain, given the political atmosphere in Rivers State, it would be easier for the proverbial camel to enter the eye of a needle than for the members of the Martin Amaewhule-led House to impeach the suspended governor. Thus, the lawmakers would be unable to remove the suspended governor, as provided for in section 188 of the Constitution.
Political watchers have noted that even if the Assembly had succeeded in removing the suspended governor and his deputy, the beneficiary would be the speaker. That, they argue, was a recipe for a crisis of a great proportion, as the Ijaw, who were on the gubernatorial seat for the first time, would do everything possible to protect the suspended governor, who is their kinsman.
Now that we are in the process of amending the Constitution, lawmakers may want to consider the wisdom in empowering the president to declare a state of emergency, gazette the declaration, before seeking the approval of the National Assembly. It gives the impression that the National Assembly has no choice but to give its approval. Have we given thought to the possibility of a rejection by the National Assembly?
Since the governor, his supporters and the members of the Rivers State House of Assembly were prepared for a final showdown, President Tinubu had no choice but to come in, not only to safeguard life and property, but to preserve the economic lifeline of the country.
The thorny question remains: does the president have the powers to suspend an elected governor and his deputy, while declaring a State of Emergency?
Where also does he derive his power to suspend the sitting of the state’s legislature?
Significantly, the two chambers of the National Assembly have approved the president’s declaration, albeit through a voice vote, instead of the two-third majority prescribed by the constitution.
My position, like that of most commentators, is that section 305 does not empower the president to remove the elected governor, his deputy, and members of the Rivers State House of Assembly. However, declaring an emergency in the state and allowing the main combatants (the governor and the House of Assembly) to remain in office would solve nothing.
Obviously, the framers of the Constitution did not envisage such a scenario.
But nature, as they say, abhors a vacuum. This is where the doctrine of necessity comes to play, in my view. The president’s action can be justified, using the legal principle of the doctrine of necessity.
The doctrine is a legal principle which originated from ancient Roman law and has been used in many countries to solve an unanticipated legal problem.
Nigeria used it in 2010, when President Umaru Yar’Adua passed away and the National Assembly pronounced the vice-president, Goodluck Ebele Jonathan as president.
The doctrine of necessity is used to justify an action that would otherwise be illegal or unconstitutional. It is used where the government needs to take extraordinary measures, as in the Rivers State situation, to respond to emergencies and threats to national security.
Incidentally, this same doctrine was used by the suspended governor as his defence for conducting the affairs of state with only four members of the Rivers State House of Assembly.
His argument, which the court rightly dismissed was that, since the seats of the 27 members had been declared vacant, the doctrine of necessity required that he ran the state with only four members.
As I was rounding off this article, news I heard the cheering news that some governors of the opposition Peoples Democratic Party, have invoked the original jurisdiction of the Supreme Court to challenge the constitutionality of the declaration of the State of Emergency, the suspension of the governor and his deputy and the suspension of the legislature.
That is good news, for the country lost that opportunity of a definite pronouncement by the apex court when former President Olusegun Obasanjo, in 2006, did in Plateau State, what President Tinubu has just done.
Soon and very soon, we shall all know the correct interpretation of section 305 of the 1999 of the Constitution (as amended).
However, no matter the judgment of the apex court on the matter, the point must not be lost that the provision of section 305 on the declaration of a state of emergency is an affront on the federal system of government.
Now that we are in the process of amending the Constitution, lawmakers may want to consider the wisdom in empowering the president to declare a state of emergency, gazette the declaration, before seeking the approval of the National Assembly. It gives the impression that the National Assembly has no choice but to give its approval. Have we given thought to the possibility of a rejection by the National Assembly?
Gbemiga Ogunleye is principal partner at EbunOluwa Chambers.
