Rivers: How Tinubu erred in declaring state of emergency, suspending Fubara

Nigerian lawyers have faulted President Bola Tinubu’s declaration of a state of emergency in Rivers State and the suspension of Governor Siminalayi Fubara.

PREMIUM TIMES earlier reported that Mr Tinubu declared a state of emergency in the south-southern state on Tuesday.

The president also suspended Governor Fubara, Deputy Governor Ngozi Odu and all elected lawmakers of the Rivers assembly for an initial period of six months.

He cited as the basis for his action “the disturbing” violence in the state in the last 24 hours, including explosions and vandalisation of petroleum pipelines, linked to the political crises in the state.

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‘Tinubu has no such powers’

A human rights lawyer, Inibehe Effiong, told PREMIUM TIMES on Tuesday night that Mr Tinubu suspended Governor Fubara in violation of the 1999 Nigerian Constitution.

As an elected official, Mr Effiong said the governor cannot be suspended or removed by a presidential declaration.

The lawyer argued that the provisions of Section (305) of the constitution did not empower the president to suspend or remove any elected governor.

“The president has no power under Section (305) of the constitution to suspend or remove a governor. The assumption of office of governor is elective, not appointive,” he said, insisting that an elected governor is entitled to four-year tenure.

Citing Section (180) of the constitution, the human rights lawyer stressed that a governor can only cease to hold office in the event of his resignation, impeachment, incapacitation or death.

“Anything outside these circumstances is unconstitutional,” he said.

Mr Effiong also said Mr Tinubu declared a state of emergency in Rivers without complying with the constitutional provisions.

“He has not complied with the procedure for even declaring an emergency. The emergency has to be gazetted, and the National Assembly has to approve it. And to my knowledge, none of this has happened,” he said.

Another lawyer, Vincent Adodo, corroborated Mr Effiong’s position that Mr Tinubu acted in violation of the Nigerian Constitution.

Mr Adodo said that although the president has the power to declare a state of emergency based on certain constitutional conditions, he does not have the power to remove or suspend a governor.

“There’s nowhere in Section 305 where the president is empowered to remove or suspend a governor of a state,” he said.

“What the president has done today, as far as I am concerned, is acting a script to favour his political ally, Nyesom Wike.”

The lawyer also said Mr Tinubu’s declaration does not have any effect under the constitution until it is approved by the National Assembly.

“As of today, we did not hear the president say they have approached the National Assembly to seek their approval.

“But a while ago, I just read that the president has deployed the military to take over the Rivers State Government House even before the National Assembly approves the declaration,” he said.

“Nigeria is not ruled by an emperor where whatever the emperor says works.”

On what Governor Fubara should do in the face of the alleged illegality, Mr Adodo said: “if I were Siminalayi Fubara, I would be in the High Court of Rivers State tomorrow (Wednesday) to challenge this unconstitutional act.”

For his part, Monday Ubani, a former chairperson of the Section on Public Interest and Development Law of the Nigerian Bar Association, said Mr Tinubu has the power to declare a state of emergency.

Mr Ubani, a Senior Advocate of Nigeria, said the president must seek the approval of the declaration from the National Assembly.

PREMIUM TIMES reminded the lawyer that the president declared a state of emergency with immediate effect during the nationwide broadcast.

“No. It can’t take effect from today. The National Assembly has to debate it and approve it before it becomes functional,” he responded.

State of emergency: Political weapon or security measure?

Meanwhile, Mohammed Adoke, a former attorney-general under the administration of Goodluck Jonathan, detailed why he opposed the removal of governors in three states where Mr Jonathan had declared emergencies in May 2013.

Mr Jonathan, in May 2013, declared a state of emergency in the three northern states of Adamawa, Yobe and Borno in the wake of escalating attacks by Boko Haram insurgents.

In his book “Burden of Service: Reminiscences of Nigeria’s Former Attorney General,” Mr Adoke recalled that Mr Jonathan had asked him to present his arguments against the removal of governors in the three states to the Federal Executive Council.

The former attorney-general explained that the president’s request followed pressure from political actors asking him to remove the governors in the states due to the emergencies.

“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 and I told them declaring an emergency was constitutional, a shared responsibility between the President and the National Assembly, with the legislature having a superior dominion,” he said.

“In the end, President Jonathan decided that he would not violate the constitution and did not extend the emergency and did not remove the three governors. Removing them during emergencies, to my mind, was simply illogical.”

Mr Adoke said Olusegun Obasanjo through his Attorney-General, Akin Olujinmi, had wrongly relied on the provision of an outdated Act – the Emergency Powers Act of 1961- to justify the removal of a state governor.

READ ALSO: State of Emergency in Rivers: Tinubu blames Fubara, silent on Wike’s role

“While the 1961 State of Emergency Act allowed for the removal of premiers, as Chief Olunjinmi alluded to, the 1979 constitution, and consequently the 1999 constitution, spelt out how to declare a state of emergency.

“The removal of a governor is definitely not included in the provisions,” he said.

“The state of emergency has often been employed more as a political weapon to settle scores with opposing forces, not necessarily to address issues of actual or imminent threat to security.”