State of emergency
THE provision for declaration of emergency in the 1999 Constitution is not by accident. It is a product of necessity essentially to safeguard the protection of life and property and prevent a resort to anarchy in appropriate cases. This explains why the President and Commander-In-Chief of the Armed Forces of the Federal Republic of Nigeria, Chief Olusegun Obasanjo, GCFR had to invoke the provisions of Section 305 of the 1999 Constitution on Plateau State in 2004 and Ekiti State in 2006.
Ekiti State
Because of recent developments on immunity, when does the immunity of a Governor cease? There is no doubting the fact that immunity issue has been overstretched beyond its bounds. The question is: Does a governor still enjoy immunity guaranteed by Section 308 of the Constitution in spite of a declaration of state of emergency?
I think the starting point is the effect (if any) of declaring a State of Emergency in a given territory. Section 305(1) and (3)(d) of the 1999 Constitution that empowers the President to make the declaration provides:- “305(1) – Subject to the provisions of this constitution, the President may by Instrument published in the official Gazette of the Government of the Federation issue a proclamation of a state of emergency in the federation or any part thereof. (3) The President shall have power to issue a proclamation of a state of emergency only when- (a) there is a clear and present danger of an actual breakdown of public order and public safety in the federation or any part thereof requiring extra-ordinary measures to avert such danger.”
The effect of an emergency declaration both in fact and in law (de facto and de jure) is that there is an immediate cessation of the functioning of the previous government. In other words, the governor, his officials including the commissioners (EXCO) together with the entirety of the legislative arm cease to function. The Sole Administrator takes over the functions of the two arms. He perform the function of the legislature and the executive. He may appoint new Commissioners. This is precisely what is happened in Ekiti State when Governor Fayose was the Governor. It was the same in Plateau State when Joshua Dariye and the State legislature were shoved aside. Upon the declaration of emergency in 2004 when Major General Chris Alli (Rtd) took over as Sole Administrator.
Secondly, the fate of an impeached governor is very clear under Section 188 of the 1999 Constitution. In very simple words, when a governor is impeached, another person is sworn-in – not as an acting governor but as a substitute one. In other words, the new man steps fully into the shoes of the former governor with all the rights and privileges of governor wholly “transferred”. By necessary implication therefore, ‘immunity’ is also transferred to the new administration and aforetiori taken away from the former Governor. It is only commonsensical that in this regard, salaries, emoluments etc attachable to the office of the governor become the exclusive preserve of the new man at the helm of affairs. The situation is not different where, as in Ekiti State example, the erstwhile governor, even before his impeachment had fled! He becomes a persona non grata.
It should also be borne in mind that an interregnum period automatically sets-in upon the change in the old order. Simply put, what Ekiti experienced was that upon the abdication of office as Governor of Ekiti State three days to his impeachment, Ayodele Fayose’s government effectively ceased.
Black’s Law Dictionary defines “interregnum”as:- •An interval between reigns; • The time when a throne is vacant between the reign of a sovereign and the accession of a successor. • Authority exercised during a temporary vacancy of the throne or a suspension of the regular government. • A break or pause in a continuous event.
Thus, in an emergency period, there is no governor – meaning that the provisions of Section 188 of the 1999 Constitution would no longer have any relevance. This is where the rulings of some court to the effect that an impeached governor still enjoys immunity from prosecution etc becomes patently ridiculous and totally absurd and bizarre. In fact, such rulings constitute an assault on the spirit and intendment of the constitution. I believe strongly that such decisions constitute unnecessary assault on the sensibilities of Nigerians. One may want to ask: Can there by two people at the helm of affairs in a state? Your answer is as good as mine.
Removal or impeachment
It is no longer news that at the last count, five state governors elected into office through the 2003 gubernatorial elections have been shoved aside through the instrumentality of impeachment. Since some of the instances are subjudice (that is already under litigation) I will restrict myself, as much as possible to “general comments” allowed under the circumstance. The removal (impeachment) of Governor and Deputy Governor is governed by Section 188 of the 1999 Constitution. It is a copious and elaborate provisions. I will only touch the relevant sub-sections for purposes of this lecture.
Section 188(1) and (2) of the 1999 Constitution provides:- “188-(1) The Governor or Deputy Governor of a State may be removed from office in accordance with the provisions of this section. (2) Whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly- (a) is presented to the Speaker of the House of Assembly of the State; (b) stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified, the Speaker of the House of Assembly shall, within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office and on each member of the House of Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office, to be served on each member of the House of Assembly.”
The important words here are: “any allegation in writing” and “gross misconduct”. But from practical examples as typified by our recent experience, it is now established beyond any doubt that “corruption” will perfectly fit into “any allegation” and “gross misconduct”. Some practical examples would suffice:
D.S.P. Alamieyeseigha (Bayelsa State)
Bayelsa State set the ball rolling towards the tail end of 2005. In spite of overwhelming allegations of corrupt practices against the then Governor of Bayelsa State, Chief D.S.P. Alamieyeseigha, the State House of Assembly initially refused to probe the governor. The reasons were best known to their honourables. Events however took another turn when surprisingly, D.S.P. Alamieyeseigha was arrested in London and charged on allegation of money laundering amongst others. He was subsequently granted bail. But he jumped bail by fleeing from London disguising like a woman. He suddenly appeared in Nigeria. It was the last straw. This time, the House of Assembly could not look the other way against the backdrop of the Governor’s proven case of money laundering and gross abuse of office allegations perfectly fit in into gross misconduct thus amounting to impeachable offences. He had to be impeached. Stripped of the toga of immunity, the ex-governor was promptly arrested and duly charged to court. The case is still on.
Mr Peter Ayodele Fayose (Ekiti State)
Just as in Bayelsa State, the Ekiti legislature was initially skeptical about probing the erstwhile Governor despite mountain of allegations of corruption and gross abuse of office.. Faced with petitions and EFCC’s overwhelming report, a formal impeachment proceedings was therefore commenced by all the legislators except two. It was stated to be the most decisive and cleanest of all impeachment proceedings before the Chief Judge decided to rubbish it all.
To be continued…
AARE AFE BABALOLA, OFR, CON, SAN, LL.D (Lond.)
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