The Labour Party has thrown its weight behind the Vice-President Kashim Shettima, describing his position that the president has no constitutional power to suspend democratic structure in any part of the country, as honest and instructive.
Shettima had, at a recent book launch, voiced out his apparent opposition to the declaration of emergency rule in Rivers State. In declaring the emergency rule, President Bola Tinubu suspended the Governor of the State, Siminalayi Fubara and all members of the Rivers State House of Assembly for six months.
Indications that a crack may have developed in the Presidency became evident as Shettima recalled his personal experience as Governor of Borno State and hailed the then President Goodluck Jonathan for heeding the wise counsel not to sack or suspend him (Shettima) because he had no rights under the 1999 Constitution to remove a democratically elected governor in the process of operationalising an emergency rule.
In an interview with Sunday Telegraph, Senior Special Adviser (Media) to the Acting National Chairman of the Labour Party, Ken Asogwa, called on President Bola Tinubu to immediately end the state of emergency he imposed in Rivers State as he lacks constitutional powers to suspend an elected governor.
Asogwa reminded President Tinubu that Section 305 of the 1999 Constitution (as amended), which governs the declaration of a state of emergency, has not changed since 2013.
“That section confers no power whatsoever on the president to remove a sitting governor under any guise, including the declaration of emergency rule,” he said.
Labour Party commended Vice President Shettima, “for his rare moment of honesty in drawing attention to what was clearly an unconstitutional act – the illegal removal of Governor Siminalayi Fubara, earlier in March under the pretext of political chaos and breakdown of law and order by President Bola Tinubu.”
It, however, condemned attempt to force the vice president to retract his earlier marks, and said it was aimed at denying him his freedom of speech.
“We reiterate our appreciation to Vice President Shettima for speaking truth to power, even if momentarily.
“But we strongly urge those pulling strings behind the scenes to cease and desist from undermining the dignity of the office of the Vice President.
“It is not only disrespectful to the man, but also to the institution he represents and to the Constitution he swore to uphold,” the party said.
In a similar vein, former Chairman of the Presidential Advisory Committee Against Corruption (PACAC), Prof. Itse Sagay (SAN), argued that there was no constitutional provision for the removal of a sitting governor by the President.
The foremost legal scholar made the submission following Shettima’s comment.
Offering his perspective on the matter, in relation to the suspension of Rivers State Governor, Siminalayi Fubara, the learned silk said nowhere in the Constitution of the Federal Republic of Nigeria 1999 (as amended) was the President empowered to remove a duly elected Governor.
In a brief telephone interview with Sunday Telegraph, Sagay said: “Well, I have searched the Constitution; I have not seen any power for the removal of a Governor.
“So, I don’t know the authority for that”.
An Abuja based lawyer, Sheriff Abdul-Hameed, in his reaction, said that, “Vice President Shettima is correct. Under the 1999 Constitution, the President has no power to remove an elected governor.
“The only constitutional procedure is impeachment by the State House of Assembly under Section 188.
“The Supreme Court made this clear in the Plateau and Ekiti states’ emergency rule cases during the President Olusegun Obasanjo administration.
“Presidential powers must respect the principle of federalism. Any attempt to remove a governor without following the Constitution would have been ultra vires”.
But Constitutional lawyer, Chief Mike Ozekhome, said it was either the Attorney General of the Federation, Chie Lateef Fagbemi(SAN) was either overrued on the Rivers matter or did not want to intervene. Otherwise, he said there was no reason or the state o emergency in Rivers.
“I do not know who intervened for Shettima but I also do know that I wrote an article then that the President does not have power in declaring a state of emergency to remove a governor. He may declare a state of emergency with the consensus of the NASS, which would promulgate it and gazette it; then the President can now make a proclamation for the state emergency. That is what President Bola Ahmed Tinubu did not do in Rivers State.
“First, he made the proclamation removing the governor and declaring state of emergency even before taking the decision to the NASS for a joint resolution. But I do know that the Attorney General Adoke, that time, was very firm that the President cannot remove a governor.
“It is unconstitutional. The governor who has been elected by his people can only be removed from office through certain means provided in the same constitution. First, if he dies in the office or he is incapacitated that he can no longer function; in which case, there are certain constitutional procedures before power can be taken from him.
“But the easiest way to remove a governor from office is under Section 188 of the Constitution, which deals with impeachment by State House of Assembly for a conduct that they considered infamous.
“There is nowhere in the constitution that a governor was elected can ever be removed by President. Even if the President was to declare a state of emergency based on clear and present danger of an eminent invasion of that state, he cannot remove a governor. So, if it was Tambuwal and Adoke that he mentioned that intervened, that was good. Tambuwal as the then Speaker of the House of Representatives, and what it means is that Jonathan as the President listened to wise counsel. He took legal advice and took political advice and did not do it. Why did President Tinubu do it? That is the question. Did Attorney General advise him, for example that it was unconstitutional and illegal to do so.
“Except if this Attorney General is so helpless or maybe, he is being bypassed or maybe, he didn’t know what to do. I do not see how under an Attorney General, a President will declare a state of an Emergency and remove a sitting governor, not through impeachment. As a constitutional lawyer, I find that abominable. I find it aberrative. I find it unconscionable. I condemned it then, still condemn it.”
Human Rights Lawyer, Inibehe Effiong, in his own reaction, submitted that, “this statement reaffirms the supremacy of the Constitution over political expediency.
“It’s true Jonathan was rightly advised against repeating what Obasanjo did in Plateau State, which the courts declared unconstitutional.
“That should remind current leaders that the rule of law always trumps the rule of force.
“The risk of executive lawlessness, especially when national security is used as a pretext to override constitutional protections.”
For Sanmi Adeoye, another lawyer, while reacting said that, “Shettima’s statement aligns with the position of the Supreme Court.
“The state of emergency provisions in Section 305 allow the President to take extraordinary measures, but not to remove a sitting governor.
“The Plateau and Ekiti precedents are binding. It’s important people remember that constitutional offices can’t be dissolved at will.”
“The A-G Federation v. Abubakar (2005) case is an authority that the President cannot suspend democratic institutions even under a state of emergency.
A former Chairman of NHRC, Prof. Chidi Odinkalu said that “It was the right call constitutionally, but it shows the challenge of Nigeria’s federalism during crises.
“If a governor is genuinely undermining security, the President’s only remedy is to push for impeachment.
“That process is often politicised or compromised. So, we must ask: is the Constitution robust enough to deal with extreme cases?
“While the Constitution protects governors’ tenure, the gap between law and realpolitik can be problematic if local structures fail.
“It was the correct legal advice. The Constitution is supreme. No President can remove an elected governor without following due process.
“Even in times of crisis, the rule of law must be upheld, else we slide into anarchy.”
