We have followed with intense patriotic interest and
sometimes with trepidation, the unnecessary and undue controversy piled up by
certain persons regarding the recent extension of the state of emergency in the
three North East States of Adamawa, Yobe and Borno.
While accepting the fact that measures need to be adopted
holistically to bring to an end the murderous campaign of terrorism in these
North Eastern States, we commend President Jonathan’s decision to extend the
emergency without accepting the undue pressure by some interest groups to sack
the governors which would have become a big constitutional breach.
We specifically advise those who seek the sack of these
governors to read the Nigerian Constitution and to stop playing to the gallery
by attacking the person and office of the current holder of the office of the
federal Attorney General and minister of Justice Mr. Mohammed Bello Adoke
(SAN), a constitutional purist, who we believe has gone about his job in the
most professional manner as an officer of the law with high integrity.
We reject the politically- motivated call by Chief Edwin
Clark for the sack of the AGF just for not asking the President to commit the
constitutional breach of removing the three state governors.
We also score the Attorney General of the Federation and
minister of Justice Mr. Adoke (SAN) highly in his determined effort to
constructively wage rights-based and legally supported anti-graft war so far.
At an emergency meeting this morning, we patriotically say
the following;
· The
emergency powers granted the President and Commander- in - Chief of the Armed
Forces of the Federal Republic of Nigeria under Section 305 of the 1999
Constitution of the Federal Republic of Nigeria (as amended) and under the
Emergency powers Act 1961 does not enable or vest him with the power to remove
a governor in whose State, a State of emergency is declared.
·
Under
the present Constitutional regime, a democratically elected governor can only
cease to hold office by impeachment, resignation, permanent incapacitation,
death and by expiration of tenure. Any attempt to remove a democratically
elected governor under this guise of declaration of the so- called "full
state of emergency" will be unconstitutional. Though such action is
supported by the precedent set in Plateau State during President Olusegun
Obasanjo dispensation, it remains an illegality.
· HURIWA
acknowledges that the Supreme Court had declined to make a definite
pronouncement on this vex issue in the case of Plateau State of Nigeria VS
President of the FRN & ords, on technical ground (the academic nature of
the Res or subject matter of that case), the spirit and letter of the law does
not envisage the removal of a democratically elected governor during the
declaration of a state of emergency.
· Just
like Mr. Femi Falana (SAN), a Lagos lawyer and prominent human rights activist,
had asked President Goodluck Jonathan to ignore a call by former federal
commissioner for information and Ijaw national leader, Chief Edwin Clark, to
suspend democratic structures In Adamawa, Borno and Yobe States, preparatory to
a full declaration of emergency rule in the affected states, we call on Mr.
President to maintain his current pro-legal and constitutional stance.
Posterity will recognize him for this decision as a respected constitutional
democrat.
· As
stakeholders in the human rights community and drawing from our findings we
know that there are executive functions under the 1999 constitution (as
amended) that are gubernatorial in nature, that is, exclusive to and only
domiciled in the governor as they are exclusively exercisable by the governor,
such functions cannot be delegated, not even to deputy governor, examples of
such powers include; assent to Bills passed by the State House of Assembly,
under section 100 of the 1999 C.F.R.N (as amended), power of prerogative
of mercy under section 212 of 1999 CFRN and appointment of members of the State
Executive Council amongst others. Only a governor or Acting governor can
exercise those functions, and the circumstances under which an Acting governor
emerges does not include when a state of emergency is declared.
· HURIWA
acknowledges the well grounded position of the law that a state of emergency
validly declared under section 305 does not by itself; bring into play the
second power. It is a fundamental principle of the Rule of law that executive
acts must be authorized by law, at any rate, in so far as they affect the
rights and interests of an individual, and that the Executive is not the one to
confer the necessary legal authorization.
· HURIWA has found out that as far
back as 1921, in the celebrated case, Eshugbayi Eleko VS Government of Nigeria,
the Privy Council applied to invalidate the deportation of the Oba of Lagos by
the Colonial governor of Nigeria without authorization by law, which as the
sole legislature for the country at the same time, he could have conferred on
himself by simply issuing an ordinance, but which he failed to do, relying
instead on what he called inherent authority as the Executive, in a judgement
that has become a great constitutional landmark, the Privy council, speaking
through Lord Atkins, said that the Executive ,"can only act in pursuance
of the powers given to him by law".
· Finally,
the removal of a state governor from office by reason solely of an emergency is
formerly declared under the section 305, is completely and unequivocally
precluded by the provision in section 11(4) CFRN, which declares that
"nothing in this section shall be construed as conferring on the National
Assembly power to remove the governor or the deputy Governor of the state from
office". The governor remains in office during such period with his
executive powers undiminished, since by section 11(4) any " law enacted by
the National Assembly, pursuant to this section shall have effect as they were
laws enacted by the House of Assembly of the State". "He is the
rightful authority to executive powers vested in him shall extend to the
execution and maintenance of the constitution (and all laws made by the House
of Assembly. And if the National Assembly cannot, in the exercise of it's power
to make law under section 11(4), remove a state governor, it cannot by law
authorize the President to do so. The President has no inherent power to remove
or suspend a governor, we maintain.
· It
follows that a state governor democratically elected into office under the 1999
constitution cannot be removed from office by reason solely of an emergency
validly declared under section 305 of that Constitution, in order words, there
is nothing in the provisions of the 1999 constitution relating to an emergency
that permits that a democratically elected governor under the current
constitutional regime BE SUSPENDED under ANY CIRCUMSTANCE whatsoever. This is
our position and we so canvass based on extensive research.
* Comrade Emmanuel Onwubiko;
National Coordinator;
* Ms. Zainab Yusuf,
National Director of media Affairs.
4/6/2014
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