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President Jonathan; AGF Adoke Are Constitutional DemocratsSays HURIWA

Constitutional Reasons Why A Democratically Elected Governor Cannot Be Removed In A State Of Emergency:
By Emmanuel Onwubiko
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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.