Mr. President did a thing. The gamut of law, wherewith, he exercised this “fire without hire right” falls within the provision of section 305 of the 1999 Constitution; while the wordings of that provision need not be explicitly stated here, instead, it is submitted that the president hinged his decision in the waters of s. 305(1) (c) (d), which provides that extra ordinary measures be taken in situation of breakdown of “public order and public security” in a state.
Knowing that, the President is the sole determinant of the exercise except under circumstances provided for under sections 305(3) (g), (4) and (5)—where a request to such effect is initiated by the Governor of a state—which is not the case here. Also, the state of emergency is to be validated by the National Assembly within two days where they are sitting or ten days where they are not.
However, the question that bothers legal mind is: whether a state of emergency can be declared with the elected governor (and other elected officials) suspended?
As the Court of Appeal held in the case of KABO AIR LTD V OLADIPO (1999) 10 NWLR PART 623,517 AT 533., PER Obadina, JCA, the phrase “subject to the provisions in this constitution” … as used in a statute or the constitution means that the other provisions of the constitution shall prevail over the provision being so qualified should there be a conflict between that provision and those other provisions.
In context, that the provision where the president hinges his “state of emergency power” cannot contravene other provision of the constitution that sets a clear framework on how certain things should be done. Impliedly, while the provision of s. 305 permits the president to declare a state of emergency, the provision of s. 188 of the Constitution provides for how an elected Governor can be removed from office (no provision was made for suspension).
The provision of s. 188 states that the removal from office of the governor is done on the ground of “gross misconduct” and by both the State House of Assembly and Chief Judge of the State as major stakeholders in this process which is to be done on ground of “gross misconduct.”
Not the President. Gross misconduct was defined by the constitution as: grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion in the House of Assembly to gross misconduct.
It is clear that while the power to declare “state of emergency” lies within the powers of the President, the Constitution did not provide that the underlining tone of “state of emergency” means suspension or removal from office of elected officials in a state.
Therefore, it is justified that the action of the President is unconstitutional. Furthermore, even during a period of emergency, only the National Assembly is empowered by s. 11(4) to take over the performance of the functions of the state house of assembly but then only to the extent ‘necessary or expedient’ and only if the assembly ‘is unable to perform its functions.’
The subsection even goes further to enter a caveat as follows: Provided 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.
In the United State case of YOUNGTOWN SHEET & TUBE CO. V SAWYER (1952) 343 US 579; 72 S.CT 863, the US Supreme Court held that an emergency situation’ did not create power’ but ‘merely marked an occasion when power granted by law should be exercised’, and that the governmental order seizing private property ‘cannot be properly sustained’ in the guise of ‘national emergency.’
Again, where did President Bola Tinubu get the power to suspend an elected governor?
The suspension order issued by President Tinubu can be attacked on another ground. If proponent of the “suspension of an elected governor” argues that there is an inherent power to suspend the Governor by virtue of declaration of state of emergency.
If so, it could have been within the contemplation of the drafters of the constitution that where the President declare a state of emergency on the whole federation, such a decision would result in the suspension of the President himself and the National Assembly and the appointment of a sole administrator for the whole of Nigeria—does this even make sense?
Consider also that the provision of section 305(4) would be rendered insipid or lacking flavour if the Governor and the House of Assembly of a state were to know that the consequences of requesting the President to declare a state of emergency in their state would be the loss of their own powers.
Proponents of his action might resort to historical fact that similar actions were taken when a state of emergency was declared in the Western Region in 1962. However, apart from the fact that the two constitutions (1960 and 1999) are different in many material provisions relating to state of emergency, the exercise of May 29, 1962, was carried out under the Emergency Powers Act of 1961 which was enacted pursuant to the Independence Constitution of 1960.
However, it is noted that no similar law was passed by the current legislature before the state of emergency declaration. But let us admit that the President could cloth his ultra vires actions by reference to the 1961 Act and the argument that it falls under the recognized “existing laws” as provided for by the provision of section 315 of the Constitution.
It has been shown that the said 1961 Act is not an existing law on the 29th May, 1999 when the present constitution came into force. The said Act was not reprinted in the codified laws of Nigeria, the index to which simply referred to the Act as “omitted or spent.”
The question that would ordinarily arise is whether the mere reference to an enactment as “spent” or “omitted” in a codification of laws could simpliciter render such an enactment inoperative if it would otherwise be operational without a formal repeal.
This issue is, however, put beyond question when the Act itself, in its subsection (2), provides for its own invalidation or inoperativeness after a period of time.
Again, to give a benefit of doubt, even if it is admitted that the Emergency Powers Act is an existing law, its provisions are still subject to the overriding provisions of section 315 (1) of the constitution which provides ,viz.
Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution…
The provisions of the Act are inconsistent with the several provisions of the Constitution which has been discussed above and would be liable to be rendered unconstitutional and void.
About the Author:
Oliver Azi is a legal write, researcher and an aspirant to the Nigerian Bar in 2025 and can be reached at [email protected]