If Only Fubara Will Head To Supreme Court

IFEANYICHUKWU AFUBA 

President Bola Ahmed Tinubu’s invocation of state of emergency in Rivers State on Tuesday, March 19, 2025, prompts us to appreciate Goodluck Ebele Jonathan as an outstanding hero of democracy. Jonathan first wrote his name on the sands of our electoral history when he refused to rig his way to a second term in office in 2015 and allowed the electorate’s verdict to prevail. He also exhibited political maturity when he declared state of emergency in three states, Borno, Yobe and Adamawa states without devaluing democratic principles by ousting the Governors from office. The deliberate bastardisation of state of emergency in the Fourth Republic was started by former military dictator, Olusegun Obasanjo. Obasanjo, who got away with several illegalities, made a mockery of democracy when he pronounced removal of Governors on the basis of state of emergency. One had thought that after Jonathan’s elevating application devoid of political interference, that there would be no more return to trivialisation of the provision. But no, President Bola Tinubu, who did not call his Minister at the centre of the crisis to order, would rather jettison democratic governance in the name of state of emergency.

The bizzare misinterpretation of state of emergency poses a danger both to our democracy and the Nigerian State itself. The intendment behind the provision in modern society is not about scuttling democratic mandates. Essentially, a state of emergency is not political by design nor by application. Wikipedia defines a state of emergency as “a situation
in which a government is empowered to put through policies that it would normally not be permitted to do, for the safety and protection of its citizens. A government can declare such a state before, during, or after a natural disaster, civil unrest, armed conflict, medical pandemic or epidemic or other biosecurity risk.” What is very clear from the above is the continuity of government in such dire circumstances. Government is not disabled; if anything, it is enabled. It is empowered to be able to deal with the prevailing extraordinary circumstances. For instance, civil liberties could be suspended. Security agencies may assume power of arrests, search and detention without warrant. But the idea of political objectives as raison d’etre of emergency is alien to western democracy. Indeed, in the United States, whose model influenced our presidential system, state governments themselves declare state of emergency in their jurisdictions when the necessary conditions are present.

Where does the President derive the power to suspend the Governor, House of Assembly and to appoint an unelected citizen as Administrator? Not from the 1999 Constitution amended. Yes, Section 305 provides for state of emergency. It outlines the procedure and steps. But nowhere does it mention ousting or suspending of elected public officers or democratic institutions. The purported authority of suspension is an importation in the reading of this section. Sub section 4 of Section 305 which gives the Governor a role to play in initiating the emergency process, would have gone further to indicate his subsequent disqualification from office if that was the intention. Why would the same Constitution which sets out conditions for the national assembly to assume legislative functions of a State House of Assembly not be forthcoming on when and how a Governor’s mandate may be truncated? The Constitution already dealt with that. This is in Section 188 and none of the criteria and stipulated conditions has anything to do with state of emergency. Only the courts have the power to make distilling and binding pronouncement on silent or conflicting provisions of the Constitution.

At this juncture, it’s pertinent to take note of the position by legal and constitutional constituencies. NBA President, Anyiam Osigwe, SAN, in a scathing statement, denounced the presidential offensive against constituted authority in Rivers State as an affront against democracy. The Punch, March 19, 2025 quoted the Bar’s President: “A declaration of emergency does not automatically dissolve or suspend elected state governments. The Constitution does not empower the President to unilaterally remove or replace elected officials – such actions amount to an unconstitutional usurpation of power and a fundamental breach of Nigeria’s federal structure.” Constitutional lawyer, Prof Auwalu Yadudu also saw the President’s action as an overreach. In an interview with Daily Trust on March 19, 2025, he stated that President Tinubu lacked the necessary competence.

“Clearly, therefore, in my view, although Tinubu possesses the power to declare a state of emergency—which may be effective if approved by the National Assembly—such power does not entitle him to suspend a governor or members of the House of Assembly.
“It is my considered view that if his actions are challenged, they risk being overturned as unconstitutional by the courts.” Farah Dagogo, who represented Degema/Bonny constituency in the 8th House of Representatives submitted that “even during a state of emergency, the governor and deputy governor remain in office.”

Interestingly, Tinubu in 2014 opposed the incorporation of loss of democratic office in a state of emergency. In a piece titled, Jonathan bares his Fangs, the former Governor of Lagos State took issues with the declaration of emergency in parts of Borno, Adamawa and Yobe states. He wrote:
“Any measures put in place which alienate the people, in particular their elected representatives, should be considered as fundamentally defective by every right thinking person in the country.” Why then the volte face today? What has changed to warrant the current assault on democracy? It’s unsettling to think that this contradiction can be associated with someone with the President’s record. In the more active years of his life, Tinubu was a pro democracy activist. Up till his governorship of Lagos State, he was considered a leading light of progressive politics. He was admired for standing up to Obasajo’s messianic attitude in the revenue seizure case eventually won by Lagos State. Many have been waiting to see the implementation of those lofty proposals championed as antidote to Nigeria’s crises in the NADECO and Afenifere movements. Has the distance between theory and practice proven difficult to bridge? Whatever be the case, the national interest should be put above partisan considerations. The House of Representatives erupted in disagreement a day after the state of emergency broadcast. The polarisation of the House on the controversial policy should serve as a wake up call.

Supporters of the emergency route have been at pains defending the ill advised decision. Their protestation of the constitutional provision does not go to the substance of the matter, that the provision does not prescribe nor envisage the powers assumed in the proclamation. Not even the attorney general, Lateef Fagbemi, has come up with evidence of the constitution’s permission for wrecking of the democratic order. It appears to be the case that the emergency drum was a desperate, fire brigade approach to competition for political and economic power. The sweeping emergency formula seems like a panicky response to the threat to oil production arising from the conflict in Rivers State. As Senator Babafemi Ojudu has counselled, the emergency stick in these circumstances is “reckless and unnecessary.” The APC chieftain and former political adviser in the Buhari administration advised Tinubu in a statement that “a state of emergency is not a strategy – it is an admission of failure.”

From indications, the President lacks the courage to tackle the matter frontally. The most effective way of containing the crisis would be sacking the Minister of the Federal Capital Territory. Everyone knows that once stripped of the badge of federal might, the recalcitrant 27 legislators would become sober and begin to act responsibly. The other option is to allow the dispute sort out through appropriate channels including the courts. To seek to make the principles of federalism and democracy pay the price of presidential inaction is unacceptable. A state Governor has a defined tenure. An elected Governor’s mandate is sacrosanct. It cannot be transferred to a candidate unknown to the Constitution. It’s even worse that the President’s so – called Administrator is not from Rivers State. Talk about internal colonialism! This is a travesty taken too far. The presidency should cancel and withdraw the emergency instrument. If the But if it chooses the obstinate path, the National Assembly should rise to the occasion. It ought to reject the declaration bearing in mind that the Parliament is the sanctuary of democratic freedom. If the National Assembly fails to do the needful, His Excellency, Siminalayi Fubara as the lawful custodian of Rivers State authority should immediately approach the Supreme Court. He has both the backing of the law and groundswell of popular support.