The President Cannot Suspend A Governor

culled from PUNCH Sunday, May 23, 2004
In retrospect, it was the sagacious P.P. Craig who opined in his book:
Administrative Law (1994) “ at page 287 that:  “Legal history has a tendency of
repeating itself.”

Indeed, the recently declared State of Emergency by Mr. President in Plateau
State of Nigeria and the attendant conditions attached by him, has repeated
the legal history of 1962 when a State of Emergency was first declared in the
defunct Western Region of Nigeria. This article takes a critical look at the
presidential action and wonders where the President got his powers to suspend an
elected Governor, his Deputy and the entire elected State Parliament!
Tenure of an elected Governor is 4 years. The tenure of an elected Governor
under the Constitution is lucidly set out in Section 180(2) of the
Constitution, thus: “180(2) Subject to the provisions of subsection (I) of this section,
the Governor shall vacate his office at the expiration of a period of four
years commencing from the date when -

(a) in the case “of a person first elected as Governor under this
Constitution, he took the Oath of Allegiance and oath of office;” It is clear beyond
argument therefore, that an elected Governor’’s tenure should terminate on 29th
May 2007, period!

Grounds Upon which a Governor can be removed under the Constitution.
The only recognizable grounds upon which a Governor can be removed under the
Constitution are those set out in Sections 188-189 which are impeachment and
permanent incapacity. Or by death and resignation- see Sections 191(3) and
306(5). As can be gleaned from the above Sections, there is no Section that
provides for the suspension and/or removal of a Governor by the President through a
Proclamation of a State of Emergency! It simply does not exist! As expected
and envisaged, Mr. President stated that he acted pursuant to Section 305 of the
Constitution. ,  Procedure for declaration of a State of Emergency under
Section 305. So far as material, Section 305 provides thus:
“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.

(2) The President shall immediately after the publication transmit copies of
the Official Gazette of the Government of the Federation containing the
proclamation including the details of the emergency to the President of the Senate
and the Speaker of the House of Representatives, each of whom shall forthwith
convene or arrange for a meeting of the House which he is President or Speaker,
as the case may be, to consider the situation and decide whether or not to
pass a resolution approving the proclamation.
(3) The President shall have power to issue a proclamation of a state of
emergency only when -

(a) The Federation is at war:
(b) The Federation is in imminent danger of invasion or involvement in a
state of war;

(c) There is actual breakdown of public order and public safety in the
Federation or any part thereof to such extent as to require extra-ordinary measures
to restore peace and security;
(d) 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
(e) there is an occurrence or imminent danger, or the occurrence of any
disaster or natural calamity, affecting the community or a section of the community
in the Federation

(f) there is any other public danger which clearly constitutes a threat to
the existence of the Federation;”

Can our highly respected President and his distinguished legal advisers
please show us where in that Section he is empowered to SUSPEND AN ELECTED GOVERNOR
UNDER THE CONSTITUTION? There is no such power anywhere! It is simply
autocratic and a purported enlargement of the Constitution, which is unconstitutional.
The Supreme Court in Attorney -General of Abia State Vs. Attorney-General of
the Federation (2002) 6 NWLR (pt.763) 265 speaking through Kalgo, JSC
commented on our Constitution at page 479 paras. C-E thus: Section 1 (1) provides:-
“This Constitution is supreme and its provision shall have binding force on
all authorities and persons throughout the Federal Republic of Nigeria
This section deals with the supremacy of the Constitution and has made it
abundantly clear and in no uncertain terms that the provision of the Constitution
are superior to every provision made in any Act or Law and are binding and
must be observed and respected by all persons and authorities in Nigeria.
Consequently, Mr. President is bound hand and foot by the provisions of the
Constitution. Thus, he lacks the quo warranto to suspend the Governor of
Plateau State, his Deputy and the entire State Parliament. In addition, the legal ‘
canon of interpretation is readily applicable to that Section. It is called
expressio unius exclusio alterious, meaning that an express mention of a word
leads to the exclusion of those not mentioned. It has been applied in the locus
classicus of Attorney-General of Bendel State Vs. Aideyan (1989) 4 NWLR
(pt.118) 187 at 238 paras. B-D, wherein Nnaemeka-Agu, JSC observed that: “The maxim…
expressio unius exclusio alterious …exclude the intendment of a general
power...”
Applying this principle to Section 305 would mean that since there is no
express power given to Mr. President to suspend a Governor, it is clear that the
Constitution did not intend to so empower him. It only empowers him to declare
a State of Emergency simpliciter!
Afortiori, since Mr. President has no powers to suspend both the elected
executive and legislature in the first place, any purported appointment of an
Administrator and any regulations made thereto is unconstitutional, null, void and
of no effect whatsoever! We must abide by the Constitution. If it continues
to be rudely and violently violated, then we may lose hope in the Rule of Law
in Nigeria. No one elected officer, no matter his office, can suspend another
elected officer under the Constitution. In fact, both the President and the
Governors were even elected on the same day! What then confers him with the
almighty power of suspension?

The President has no inherent powers under the Constitution.
It has been legally settled by the Supreme Court that neither the Executive
nor the National Assembly has any inherent powers to act outside the
Constitution. It is only the Judiciary that has such powers. In Attorney-General of Abia
State Vs. Attorney-General of the Federation (supra) at page 422 paras. F-G,
Ogundare, JSC of blessed memory declared that:
“It is only with respect to the courts that the Constitution recognizes
inherent powers….. There is no provision in the Constitution similar to the above
provision as respect the other branches of government that is, the legislature
and the executive."
The President’s action even violates the little principle of federalism
contained in our Constitution. We have not heard of President George Bush
suspending a Mayor, how much more any Governor in the United States. This is a
constitutional tragedy and a ruthless assault on our Constitution. One does not really
need to be a lawyer to appreciate the simple, lucid and forceful observation
that Section 305 which Mr. President said he relied on, does not give him the
power to suspend a Governor.

It must be clearly emphasized that one is not questioning the merits or
demerits of the declaration of a State of Emergency at this stage. Rather, one is
challenging the authority of Mr. President to go further and sack an entire
State executive in a so-called federation.
 If this unconstitutional act is allowed to stand, then Mr. President may one
day declare a State of Emergency in the Federal Capital Territory (FCT) and
suspend the House of Representatives as well as the Senate and thereafter
appoint himself as the Administrator-General of Nigeria!
It is a political and legal tragedy that Parliament which has the powers to
rectify this carsus omisus (costly oversight) under Section 305, has
regrettably adopted this constitutional anomaly, thus making them impari delecto (in
mutual wrong). An actio popularis (citizens’ action) is therefore the only option
available to legally challenge this gross violation of the Constitution. I am
thus in concord with the vibrant Editorial of the Guardian Newspaper of
20/5/2004 at page 16 titled: “Emergency Rule in Plateau State,” when it observed
on the National Assembly, thus:
“It is most unfortunate that members of the Senate and the House of
Representatives without allowing themselves the pleasure of a deep reflection on the
issue at state, have declared support for the President with overwhelming votes
in favour of emergency rule in Plateau. Whether it recognizes it or not, the
National Assembly has by its action given credence to the suspicion that it is
nothing but an appendage of the Presidency; and that it is a ready ally in the
executive bid to unleash civilian dictatorship on the country. The National
Assembly’’s action is not only condemnable but exercised in utter disregard of
their oversight functions. It bespeaks of incompetence.”
Constitutional option open to Mr. President.
The immediate restoration of all the democratic structures, i.e. the
Governor, his Deputy and the State House of Assembly back to the status quo. A State
of Emergency is usually imposed on the people and the Governor is a contact
point through which Mr. President as the Commander-in-Chief of the Armed Forces,
will take necessary measures to redress the emergency. He has the Po1ice,
Navy, Airforce and Army at his disposal to take appropriate steps, whilst the
Governor remains in office in fulfillment of the wish of the electorate.
This view is supported by Section 305(4) of the Constitution which empowers a
Governor with the support of two-thirds of the State House of Assembly to
request Mr. President to declare a State of Emergency in his State if there is
serious threat to peace. That subsection presupposes that the Governor should be
involved in the process of redressing the emergency as proclaimed under the
Constitution.
Parliament through the doctrine of covering the field can legislate on
restriction of movement or enact other laws which are justifiable in the
circumstances under Section 45(2) of the Constitution which provides that:
“An Act of the National Assembly shall not be invalidated by reason only that
it provides for the taking, during periods of emergency, of Measures that
derogate from the provisions of Section 33 or 35 of this Constitution; but no
such measure shall be taken in pursuance of any such Act during any period of
emergency save to the extent that those measure are reasonably justifiable for
the purpose of dealing with the situation that exist during that period of
emergency.”
This power has been accentuated in the locus classicus of Williams Vs.
Majekodunmi (1962) 2 SCNLR 30. In 1962, Parliament was supreme, but from 1999, the
Constitution is supreme.
The period of 1962 when a State of Emergency was declared and the Premier
substituted for an Administrator, it was a parliamentary system or government
wherein Parliament was supreme. Parliament could do anything, except turn a man
into a woman, However, under the 1999 presidential system, the Constitution is
supreme. See Scction 1(1) of same. So, there is really no legal help for Mr.
President to rely on the 1962 Situation.
Conclusion.
I observe in sorrow rather than anger that there has been a vicious violation
of our Constitution, yet nobody is ready to say anything, except a tiny
minority who are now being hounded by security agents! However, for those who
remain silent in the face of tyranny, the legendary Crusader, Frantz Fanon,
admonishes us that: “The future  will hold no pity for those who have the exceptional
privilege to speak the truth to the oppressor, have taken refuge in
passivity, mute indifference and sometimes, cold complicity.”
Let us all therefore stand in defence of our Constitution.

•AKPO MUDIAGA ODJE, ESQ., LL.M (LONDON) BL., a former Constitutional Adviser
to the erstwhile Deputy Speaker of the House of Representatives.