Suspension Of Gov Fubara, Deputy, Assembly Members By Tinubu, Illegal – Falana

Erudite Constitutional lawyer, Mr Femi Falana, SAN, has declared that the decision of President Bola Ahmed Tinubu to suspend Governor Siminalayi Fubara, his deputy, Mrs Ngozi Odu, and members of the Rivers State House of Assembly for six months cannot be justified under any of the provisions of the 320 Sections of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

This was as he stressed that the failure of a House of Assembly to function in Rivers State can not be a justification for the dissolution of democratic structures in any State of the Federation.

He explained that the Constitution had envisaged that a State House of Assembly may not be able to function due to one reason or another, hence Section 11(4) of the Constitution stipulates as follows: “At any time when any House of Assembly of a State is unable to perform its functions by reason of the situation prevailing in that State, the National Assembly may make such laws for the peace, order and good government of that State with respect to matters on which a House of Assembly to be necessary or expedient until such time as the House of Assembly is able to resume its functions; and any such laws enacted by the National Assembly pursuant to this section shall have effect as if they were laws enacted by the House of Assembly of the State.

Falana therefore said that the decision of President Tinubu to suspend Governor Fubara, his deputy and member of the State House of Assembly, was outrightly illegal and must not be encouraged for the sake of democracy and constitutional order.

He explained that while there was no doubt that Section 305 of the Constitution empowers the President to take extraordinary measures to restore law and order if, among other reasons, there was no actual breakdown of public order and public safety in the Federation or any part thereof to warrant such an extraordinary measure as Rivers State was not in danger whatsoever.

Falana said that even when extraordinary measures are to be adopted by the President to restore peace and security in the Federation or in any particular State, such does not in any material particular include the suspension of an elected Governor, Deputy Governor and the dissolution of democratic structures.

In the words of Falana; “For the avoidance of doubt, section 45(3) of the Constitution provides that a ‘period of emergency’ means “any period during which there is in force a Proclamation of a state of emergency declared by the President in exercise of the powers conferred on him under section 305 of this Constitution.”

“Thus, in accordance with the relevant provisions of the Nigerian Constitution, the office of an elected governor can only become vacant upon death, ill health, resignation, or impeachment.

“Even where the office of the Governor becomes vacant for any reason whatsoever, the Deputy Governor shall be sworn in as the Governor.

“And where the offices of the Governor and Deputy Governor become vacant at the same time, the Speaker of the State House of Assembly shall become an Acting Governor for not more than 3 months.

“During the 3-month period, a fresh election shall be conducted by the Independent National Electoral Commission for the election of a new governor.

He noted that in 2004 and 2006, Nigerians condemned the illegal dissolution of democratic structures when President Olusegun Obasanjo imposed emergency rules on Plateau State and Ekiti State, respectively.

Falana said; “Regrettably, on both occasions, the Supreme Court refused to determine the constitutional validity of the dissolution of democratic structures on the ground that the suit were procedurally incompetent because they were instituted during the six-month emergency period by the suspended legislators in the name of Plateau State without the authorization of the Sole Administration of the state!

“However, in 2013, when a state of emergency was declared in Adamawa, Borno and Yobe States by former Presidents Goodluck Jonathan, we urged him to reject the pressure mounted on by anti democratic forces to remove the elected Governors and dissolve democratic structures in the affected States. President Jonathan followed the path of constitutionalism.

“In 2021, the then Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami SAN announced the plan of the federal government to declare a state of emergency in Anambra State over insecurity and threat to a complete breakdown of law and order in that part of the Federation. We advised President Buhari not to demolish democratic structures even if emergency rule was imposed on the state. President Buhari followed the path of constitutionalism.

“In the cases of Adegbenro vs. Attorney-General of the Federation (1962) 1 NLR 338 F.R.A. Williams V Dr. M.A. Majekodunmi (1962) 1 NLR 328 the Supreme Court of Nigeria validated the Emergency Powers Act 1961 to justify the dissolution of democratic structures as well as suspension of fundamental human rights in western region.

“As there is no equivalent of the Emergency Powers Act 1961 under the current constitutional dispensation, the suspension of an elected Governor by an elected President is a constitutional anomaly under the 1999 Constitution.

“In Attorney General of the Federation v. Attorney General of Abia State & Ors (2024) LPELR-62576 (SC) filed by the Bola Tinubu administration, the Supreme Court of Nigeria held that the removal of elected chairmen and councilors as well as appointment of sole administrators or caretaker committees by State Governors to run local government councils are illegal and unconstitutional.

“It follows to reason that the suspension of elected governors and elected members of the House of Assembly by the President is illegal and unconstitutional in every material particular.

“To that extent, a serving or retired military officer can not be imposed as a Sole Administrator to govern any state in Nigeria. Similarly, a military officer cannot be appointed by the National Assembly as a Sole Administrator to govern the Nigerian people during a war between Nigeria and another country.

“In the Speaker, Bauchi State House of Assembly v Hon Rifkatu Danna (2017) 49 WRN 82 and several other cases, Nigerian Courts have held that the suspension of elected legislators is illegal and unconstitutional,” he said.

Falana therefore challenged President Tinubu to follow the path of constitutionalism without any delay by reinstating the suspended Governor Fubara and Deputy Governor Odu and restore all democratic structures in Rivers State.