Amidst increasing concerns about the nation's deteriorating standards in democratic governance, the state of emergency declared in Rivers State, together with the suspension of Governor Fubara, his deputy and all elected members of the State House of Assembly, has generated concerns and unsurprisingly received widespread criticism.
The unanswered concerns are; was suspending Governor Fubara a wise decision? Was it constitutional and legal? Did it follow due process? Does it solve the problems on ground? Is it an exercise in executive overreach? Does it erode the foundations of federalism? Does the appointment of a non-indigene former military officer supported by troops infer militarisation of the state? Does it subordinate the rule of law to political expediency?
The answers will be clear with the passage of time, but they will mostly be subjective opinions. But, the question of whether or not due process was followed is not subjective.
Experts in management of men, materials and processes distinguish between qualitative and quantitative decisions. The former are subjective in nature. They are matters of opinion and unquantifiable taking into consideration words such as "nicer", "best option" etc. On the other hand, quantitative decisions are measurable matters of fact, not opinions. They take into account words such as "majority", "more profitable", "cheaper" etc.
The Rivers State debacle was supposed to be a quantifiable process. According to Sections 305(2) and (6)9b) of the Constitution a state of emergency must be approved by at least two-thirds of the Senate and House of Representatives. Two-thirds is not a matter of opinion, it is measurable and due process was not followed.
Senator Ireti Kingibe, amongst others, criticise the Senate's use of a voice vote to approve the emergency rule. She quite correctly pointed out that voice vote cannot determine the constitutionally required two-thirds majority. Professor Pat Utomi claims to have video evidence where despite a clear majority responding with "nay" to a motion, The Senate President declared that "the ayes have it"! Cynics say that no Senate president's ears are ever checked to determine whether he has hearing deficiency before he is appointed! Neither indeed is the decibel level of a senators voice one of the considerations for successful screening.
Indeed, it is shameful to say that in this age of electronic technology, subjective perception and the ability to shout is an appropriate method determining the wishes of the majority of the Senate.
Some skeptics have their own explanations as to why the National Assembly approved what they consider to be an unconstitutional and illegal declaration of emergency. In a statement signed by Chukwuebuka Ekpechi, the Concerned Citizens of Anambra accused some legislators of collecting bribe to support emergency rule.
Actress and politician Hilda Dokubo also condemned the state of emergency in her home state. In an Instagram post she wrote "state of emergency because for two years we have had peace? "a state of emergency just because of one man?" An editorial by Business Day correctly asserted that emergency rule not only threatens regional stability but also the integrity of the nation's democratic institutions.
A plethora of Senior Advocates of Nigeria (SAN) and other legal luminaries such as professors of law have stated their opinion that the decision to suspend duly elected officials of Rivers State cannot be justified under any constitutional provision. Their legal position is that the office of an elected governor can only become vacant upon death, ill-health, resignation, or impeachment, and a State House of Assembly's failure to function is not a justification for the dissolution of the state's democratic structures.
The constitution states categorically that if at any time a State House of Assembly is unable to perform its functions, then the National Assembly may make such laws for the peace, order, and good governance of that state. No constitutional provision, statute or any known convention grants the president the imperial and dictatorial authority to dissolve the structures of an elected state government.
Declaration of State of Emergency by a president does have precedents. In 2004 and 2006 President Obasanjo dissolved democratic structures in Plateau and Ekiti States respectively. On both occasions, the Supreme Court failed the nation by declining to determine the constitutional validity of the action. Almost two decades later, the ironic tragedy of the moment is that in spite of the sacrifices and loss of life in the prolonged fight for democracy, politicians are returning to using the military to solve their political problems! One of the criticisms concerning military rule was their appointment of non-indigene unelected sole administrators to run state governments by coercion.
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The socio-economic and political mess the military left behind was ample evidence that the suspension of democratically elected public officeholders never benefitted the common man. The National Assembly would have been better advised to have assisted Governor Fubara by invoking its powers under Section 11(4) of the Constitution to make laws for peace, order and good governance rather than approving the dissolution of democracy in Rivers State.
Also of major concern is that the Nigeria Governors Forum placed' the personal interests of its members ahead of national interest. Their abdication of responsibility to ensure constitutionality implies that a president can suspend any governor at his whim if he so chooses.
There seems to be little to be gained expending time and money proposing constitutional amendments when the Executive and Legislature routinely ignore constitutional constraints on their behaviour while strictly enforcing their constitutional privileges.
