Lagos': By Andy BABATUNDE
Published, Thursday, October 7, 2021
In a statement signed and made available to thedispatch by the Interim Chair of the group, Femi Falana (SAN), pictured above, on Wednesday posited that though the Nigerian Constitution gives the President the power to declare a state of emergency if there is a breakdown of public order in the Federation or any part thereof, but he lacks the power to suspend democratic structures.
Speaking earlier on Wednesday, the Attorney-General of the Federation and Minister of Justice, Abubakar Malami, while answering questions from journalists, said the Muhammadu Buhari-led government was prepared to do anything to declare a state of emergency to ensure peace in Anambra State ahead of the next governorship election
“When our national security is attacked, and the sanctity of our constitutionally guaranteed democracy is threatened, no possibility is ruled out.
“As a government, we have a responsibility to ensure the sustenance of our democratic order. As a government, we have a responsibility to provide security to life and properties,” Malami had said.
However, Falana said despite the powers given to the President by the Constitution, an “elected state governor can only be removed by impeachment or resignation”.
The statement read, “Section 305 of the Constitution provides that the President shall have the power to issue a Proclamation of a state of emergency if there is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security or 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 extraordinary measures to avert such danger.
“Such emergency rule will lapse if it is not supported by a resolution by a two-thirds majority of all the members of each House of the National Assembly approving the Proclamation within two days after the publication in the Gazette or within 10 days when the National Assembly is not in session.
“It is pertinent to note that the President shall not issue a Proclamation of a state of emergency in any State unless the Governor of the State fails within a reasonable time to make a request to the President to issue such Proclamation.
"The power of the President to impose emergency rules is limited to the adoption of extraordinary measures to restore law and order or peace and stability. In other words, if a State of emergency is validly declared in any State or in the entire country, the President is empowered to deploy troops and take other extraordinary measures to restore law and order.
“Since 2015, President Buhari has imposed emergency rule in Borno, Yobe, Adamawa, Zamfara, Kaduna and Katsina states by deploying members of the armed forces to assist the police in the restoration of law and order. The President has adopted such extraordinary measures without seeking the approval of both chambers of the National Assembly.
“In other words, since the emergency rule imposed on the North East region by President Goodluck Jonathan expired by effluxion of time President Buhari has not renewed or extended it. The National Assembly has not challenged the illegal emergency rule imposed without any declaration as stipulated by section 305 of the Constitution.
“To that extent, I want to believe that the Buhari administration has just realised that the deployment of troops without the declaration of emergency rule in many states of the Federation is illegal and unconstitutional. Hence, the threat issued by the Attorney-General of the Federation is an attempt to return to constitutionalism with respect to the imposition of emergency rule in Anambra State and other States in the North West, North East and South-East regions where the Federal Government is waging a full-scale war against terrorists and the so-called gunmen.
“I wish to submit, without any fear of contradiction, that nowhere in the Constitution has the President been vested with the power to remove the elected Governor of a State and suspend democratic structures. The Governor of a State can only be removed by impeachment or resignation and not by imposition of emergency rule.
“In the same vein, the tenure of legislators is 4 years in line with the provisions of the Constitution. Even though former President Olusegun Obasanjo removed two Governors via the imposition of emergency rule, the Peoples Democratic Party-led Federal Government later jettisoned the illegal practice. Hence ex- Presidents Umaru Yar’Adua and Goodluck Jonathan never used emergency rule to remove elected governors or suspend legislative houses and local government councils.
“Indeed, the Federal Government has since realised that it is unjust and immoral to remove a Governor of a State since the President exclusively controls the armed forces, the police and other security agencies. To that extent, the Federal Government should drop the dangerous plan to remove the Governor of Anambra State and impose a Sole Administrator on the eve of the forthcoming gubernatorial election in the State.
“No doubt, troops have been deployed in Anambra State by the President in order to end the reckless killings and wanton destruction of properties by the so-called gunmen. To ensure that the forthcoming governorship election is successfully conducted by the Independent National Electoral Commission, the President may wish to adopt other extraordinary measures in Anambra State. However, the President is advised to seek legislative approval to legitimise the deployment of members of the armed forces in the State and other states where the Federal Government is currently conducting counter-insurgency operations. But the Federal Government should not hide under emergency rule to remove elected governors and suspend democratic structures in any State of the Federation,” the statement reads.
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