Adoke Speaks Out: The Constitutionality Of Removing Governors During A State Of Emergency

Mohammed Bello Adoke's Memoir: A Legal Perspective on Declaring a State of Emergency

In his memoir, Burden of Service: The Reminiscences of Nigeria’s Former Attorney-General, published in 2019, Mohammed Bello Adoke dives deep into the complexities of declaring a state of emergency and its constitutional implications. The former Attorney-General of the Federation dedicates an entire chapter to this subject, emphasizing that removing a state governor during such a declaration is not permissible under the Nigerian Constitution. Adoke's insights provide a clear and critical perspective on the misuse of emergency powers for political purposes.

Adoke's analysis is rooted in historical context, referencing the 1960 Constitution, which allowed for emergency rule but did not authorize the suspension of a sitting governor. He explains that while the federal government had the power to enact laws for emergency rule, this power did not extend to dismissing elected officials. This historical precedent sets the stage for understanding the limitations placed on executive authority in modern times.

Evolution of Emergency Powers: From 1960 to 1999

Adoke further elaborates on the evolution of emergency powers in Nigeria, pointing out that both the 1979 and 1999 constitutions clearly define the procedures for declaring a state of emergency. These procedures explicitly exclude provisions for the removal of elected governors. Adoke underscores that the purpose of declaring a state of emergency is to address extraordinary situations that defy standard laws and processes, not to settle political scores or remove opposition leaders.

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This distinction is crucial, as it highlights the constitutional safeguards in place to protect democratic principles. By adhering to these safeguards, leaders can ensure that emergency powers are used responsibly and effectively, without undermining the integrity of the electoral process or the rule of law.

Fast-forward to 2023, and the conversation around emergency declarations remains relevant. When President Bola Tinubu declared a state of emergency in Rivers State due to political unrest and conflict within the state’s legislature, he suspended Governor Siminalayi Fubara, his deputy, and all members of the Rivers State House of Assembly for six months. Vice Admiral Ibokette Ibas was appointed as the interim administrator of the state. This decision sparked debates about the legality and implications of such actions, echoing the concerns Adoke raised in his memoir.

Excerpts from Adoke's Memoir: A Closer Look

“On 13 May 2013, the President declared a State of Emergency in three of the North Eastern states of Adamawa, Borno, and Yobe due to the Boko Haram insurgency. The situation was dire, with the Armed Forces struggling to contain the terrorist group. Political tensions were also high in Northern Nigeria following the 2011 presidential election, where some politicians were accused of making incendiary statements. Amidst the chaos, Nigeria found itself in a state of disequilibrium. The President needed to act swiftly to address the insurgency and restore peace and security.”

“When the issue of declaring a state of emergency arose, there were discussions about the extent of the President’s powers. Since the insurgency was localized to specific areas, the President opted to limit the emergency declaration to those local government areas. This strategic move allowed security forces to concentrate their efforts where they were most needed. Importantly, no local government chairmen or governors were removed or suspended. For the first time in Nigeria’s history, an emergency was declared with the political leadership intact.”

“As the Attorney-General, I advised the President on the legal framework governing emergency declarations. Section 305 of the Constitution grants the President the authority to declare a state of emergency in the Federation or any part thereof. However, this power is not absolute. The President must transmit the proclamation, including details of the emergency, to the President of the Senate and the Speaker of the House of Representatives. These leaders are then tasked with convening meetings to consider and approve the proclamation.”

“The Constitution specifies that a state of emergency can only be declared under certain conditions, such as war, imminent danger of invasion, or an actual breakdown of public order. Natural disasters or calamities affecting a community or section of the community also qualify as emergencies warranting such a declaration. Additionally, the Governor of a state may request the President to issue a proclamation of emergency if the situation meets the listed criteria, provided they have the support of two-thirds of the state House of Assembly.”

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Historical Misuse of Emergency Powers

“Critics of President Jonathan’s decision to retain the governors during the 2013 state of emergency accused him of being weak. They argued that declaring a state of emergency while keeping the governors in place was inconsistent. However, history reveals that emergency declarations have often been weaponized for political purposes. In 1962, during a crisis in the Western Region, the Federal Government stepped in to remove the Premier, Chief S. L. Akintola, and appoint Dr. Moses Majekodunmi as the Administrator. This move was highly controversial and politically charged.”

“A similar scenario unfolded in 2004 when President Obasanjo removed Chief Joshua Dariye as Governor of Plateau State after declaring a state of emergency. Chief Akin Olujinmi, then Attorney-General, justified the removal by referencing the Emergency Powers Act of 1961. However, this act was derived from the 1960 Constitution and had become obsolete by the time it was invoked. The 1979 and 1999 Constitutions clearly outline the procedures for declaring a state of emergency, and removing a governor is not among them.”

Adoke's Legal Stance: Upholding the Constitution

“As the Attorney-General, I was determined to uphold the Constitution and ensure that my advice was grounded in legal principles. I advised the President that declaring a state of emergency did not justify the removal of a governor. Governors are the Chief Security Officers of their states, but this title is largely ceremonial. They do not have direct control over security agencies, which are centralized under the Inspector General of Police. Removing a governor during a state of emergency could lead to conflicts with the National Assembly and diminish the President’s executive powers.”

“Moreover, the Constitution provides mechanisms for addressing situations where a state House of Assembly is unable to function. Section 11 outlines provisions for the National Assembly to assume the functions of a state assembly in such cases. Declaring a state of emergency to remove a governor would be an unconstitutional overreach, akin to using extraordinary measures to settle political scores.”

“I used a hypothetical scenario to illustrate my point to the President. I asked him, ‘If the country were at war and you had to declare a state of emergency, would you remove yourself from office and appoint an administrator to oversee the affairs of the nation?’ The absurdity of this question highlighted the illogical nature of removing a governor during a state of emergency.”

Political Pressure and Presidential Resolve

“Despite mounting pressure from political hawks, President Jonathan stood firm in his commitment to the Constitution. He refused to extend the state of emergency in Adamawa, Borno, and Yobe or remove the governors. This decision was not without consequences, as it made me an enemy of many within the government who accused me of misleading the President. However, the President always had my back, recognizing the importance of adhering to legal principles.”

“President Jonathan’s legacy is defined by his refusal to use emergency powers as a political weapon. His approach has set a precedent for future leaders, encouraging them to prioritize the rule of law over personal or political gain. It is a legacy that deserves recognition and respect, especially when compared to leaders who have abused their authority to terrorize and subjugate their political opponents.”

Conclusion: The Importance of Constitutional Integrity

Adoke's memoir serves as a powerful reminder of the importance of upholding constitutional integrity, even in the face of political pressure. By adhering to the principles enshrined in the Constitution, leaders can ensure that emergency powers are used responsibly and effectively, safeguarding democracy and the rule of law. As Nigeria continues to navigate complex political challenges, the lessons from Adoke's experiences remain more relevant than ever.