Lagos lawyer and human rights activist, Femi Falana (SAN) has said calls by some persons for an extension of the state of emergency declared in Borno, Yobe and Adamawa states were undemocratic.
His reaction is on the heels of a statement credited to Chief Edwin Clark in which he urged President Goodluck Jonathan to declare a total state of emergency which would see the removal the state governors from office.
“There is nothing like partial declaration of a state of emergency in the 1999 Constitution; what section 305 (c) of the Constitution contemplates is the recourse to ‘extraordinary measures to restore peace’ and security where there is a breakdown of public order and public safety. This in effect means that all democratic institution should be suspended to permit the military exercise full control until peace and order returns,” Clark had said.
But in a statement he personally issued yesterday, Falana described the call for a total imposition of emergency rule as diversionary.
He said, “In confronting the menace of terrorism, the President of the Republic should must not be encouraged by people with vested political agenda to resort to undemocratic tactics associated with military dictators. As Nigeria has successfully replaced autocracy with democracy, all actions of the government have to be conducted in strict compliance with the tenets of the rule of law.
“In view of the clear provision of the Constitution on the vexed issue of a state of emergency, I am compelled to urge the President to ignore the illegal
and unconstitutional call for the removal of the Governors of Adamawa, Borno and Yobe State”.
Noting that Section 305 of the constitution which empowers the president to declare a state of emergency in any part of the country does not make any provision, “expressly or impliedly, for the removal of elected democratic structures,” Falana said.
“In other words, the power of the President, to take “extraordinary measures to restore peace and security” under a state of emergency does not include the removal of elected public officers or the dissolution of democratic structures.
“In any case, State Governors cannot be held vicariously liable for the inability of the President and Commander-in-Chief of the Armed Forces to stem the rising wave of insurgency in the country. It is submitted that the adoption of “extraordinary measures” should not be construed outside the ambit of the power of the President to deploy the armed forces and the police to restore public peace whenever there has been a breakdown of law and order in the whole country or any part thereof.”
Falana regretted that even though “Chief Clark could did not refer to any law or decided case to justify his stand, he has enjoined President Jonathan not to follow the bad example of President Obasanjo who suspended the Governor of Plateau State and the Acting Governor of Ekiti State for six months in utter violation of the Constitution.
“That was an era of executive recklessness which has been consigned to the dustbin of history. Assuming without conceding that President Obasanjo was right is Chief Clark suggesting, by any stretch of imagination, that if the Federation is waging a war against another country leading to the imposition of emergency rule in the entire land the President should vacate office for a retired General to take over and run the country like a sole administrator?” he quipped.
“Those who are asking the President to jettison the rule of law under the pretext of fighting insurgency in the North East region are challenged to refer to any specific provision of the Constitution to back up their invitation to anarchy in the country. Having regard to the provisions of the Criminal Code Act, it is submitted, without any fear of contradiction, that the suspension of elected governors by President Obasanjo was treasonable in every sense.
“In addition, such removal was a gross contravention of section 1 (2) of the Constitution which states that ‘The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof except in accordance with the provisions of this Constitution.
“If a governor cannot remove elected chairmen and councilors, it stands to reason that the President lacks the vires to sack elected governors. It ought to be pointed out that the imposition of emergency rule does not authorise the President to suspend constitutionalism or rule of Law in any part of the Federation.”
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