The 1963 Constitution provides for the suspension of a sitting governor, not the 1999 Constitution (as amended). The President cannot suspend the governor, deputy governor, and state House of Assembly lawmakers.
By Titilope Adako
Lawyers have criticised President Bola Tinubu’s decision to suspend Rivers State Governor Siminalayi Fubara, his deputy Ngozi Odu, and state lawmakers for six months, describing it as unconstitutional.
KoikiMedia earlier reported that Tinubu, in a live broadcast on Tuesday, defended the suspension as a necessary step to restore stability in the state amid political turmoil
He appointed retired Vice Admiral Ibok-Ette Ibas as the state’s administrator, clarifying that the judiciary would continue functioning.
“In the meantime, I hereby nominate Vice Admiral Ibokette Ibas (retd.) as Administrator to take charge of the affairs of the state in the interest of the good people of Rivers State. For the avoidance of doubt, this declaration does not affect the judicial arm of Rivers State, which shall continue to function in accordance with their constitutional mandate,” he said.
Quoting Section 305 of the 1999 Constitution, Tinubu argued that the emergency measure was required to restore peace.
“This declaration has been published in the Federal Gazette, a copy of which has been forwarded to the National Assembly in accordance with the Constitution. It is my fervent hope that this inevitable intervention will help to restore peace and order in Rivers State by awakening all the contenders to the constitutional imperatives binding on all political players in Rivers State in particular and Nigeria as a whole.”
Before making the announcement, Tinubu met with Senate President Godswill Akpabio, service chiefs, and the Inspector General of Police, Kayode Egbetokun, behind closed doors.
However, legal experts have challenged the President’s authority to suspend an elected governor.
A UK-based human rights lawyer, Morakinyo Olasupo, argued that only a state House of Assembly and the courts have the power to suspend or remove a governor.
“The President cannot suspend a governor who is democratically elected. Governors are elected officials with a constitutional mandate, and their removal or suspension must always follow due legal processes.
“Some of the processes are impeachment by the state House of Assembly, and the procedure for impeachment is clearly stated in Section 188 of the 1999 Constitution of the country (as amended).
“Also, the Supreme Court has made it clear in the case of Inakoju vs Adeleke that impeachment of the governor by the state House of Assembly must be carried out as contained in Section 188. Another way is by court order. In the case of the election petition, if the governor’s election is contested in court, the judiciary can nullify or remove the governor.
“Another is that in the case of death or incapacitation, the governor can be removed. Incapacitation is in line with impeachment. The fourth one is that under Section 305, the President can declare a state of emergency in a state, but this does not mean that he can automatically suspend or remove the governor.
“The President cannot just wake up and declare a state of emergency unless there is war or imminent danger of war that can affect Nigeria, where there is a breakdown of law and order to the extent that it requires extraordinary measures and security, breakdown of law and order in the state or public danger, disaster and pandemic threatening the existence of Nigeria.”
Olasupo also noted that while the President can declare a state of emergency under Section 305, it requires approval from the National Assembly and must be done through a formal legal instrument, not just a public broadcast.
“After the President has prepared the instrument, he will send it to the National Assembly for deliberation and approval. Once the instrument is signed by the Assembly, the President can then proceed to declare the state of emergency. The declaration cannot hold water,” he added.
Ridwan Oke, Principal Partner at Iris Attorneys LP, supported the declaration of a state of emergency but dismissed the suspension of the governor and lawmakers as unconstitutional.
“The 1963 Constitution provides for the suspension of a sitting governor, not the 1999 Constitution (as amended). The President cannot suspend the governor, deputy governor, and state House of Assembly lawmakers.
“In accordance with Section 305 of the 1999 Constitution, the state of emergency can only be declared in a state when there is war, political unrest, breakdown of law and order, or there is imminent breakdown of law and order or when the governor of a state backed by two-third majority of the house requests for it. The governor has refused to request it, so the President can declare a limited time, which is not stipulated in the Constitution.
“Rivers’ political crisis and today’s explosions are tenable grounds for declaring a state of emergency. He will now send the proclamation (gazette) to the National Assembly for approval and deliberation.”
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