Concerns over constitutionality of suspension of tenured office holders in Rivers
24 March 2025 |
3:36 am
The declaration of a State of Emergency in Rivers State and the six-month suspension of Governor Siminalayi Fubara, his deputy, Ngozi Odu, and the State Assembly have continued to elicit debate over the constitutionality of the process.
Lawyers, political analysts differ on potential tenure extension for Fubara, deputy, lawmakers
The declaration of a State of Emergency in Rivers State and the six-month suspension of Governor Siminalayi Fubara, his deputy, Ngozi Odu, and the State Assembly have continued to elicit debate over the constitutionality of the process.
Currently, the most topical issue is what becomes of the six-month ‘break’ in civilian rule and in the tenure of concerned public office holders who were all elected. Put differently, is the six-month lost or to be gained in tenure extension – should the ousted offices return to their seats?
Some legal practitioners and stakeholders shared diverse views on the constitutional dilemma yesterday. President Bola Tinubu cited section 305 of the 1999 Constitution, as amended, in his justification for the emergency declaration last week. He said the decision was taken to restore stability in the state, which has allegedly witnessed political turmoil because of the disagreement between the state governor and the State Assembly members.
However, as amended, Chapter 6, Part 2, Section 180 (1&2) of the Constitution stated that a state governor’s tenure is four years, commencing from the date he or she took the Oath of Allegiance and oath of office. This entitled suspended Governor Fubara, his deputy and the State’s legislators a statutory four-year tenure, which is expected to lapse on May 29, 2027.
Nevertheless, there are some exceptions to this rule. If the federation is at war and the President considers it impractical to hold elections, the National Assembly may extend the governor’s tenure by a resolution, but this extension cannot exceed six months at a time.
Also, if a governor dies, resigns, or is otherwise unable to hold office, his or her successor will take over and serve the remainder of the original four-year term.
Although an option of challenging the declaration of the state of emergency in the court may not be favourable to Fubara due to a precedent of the January 2006 Supreme Court’s judgement, which struck out the suit filed by the Plateau State government and the State Assembly, challenging the declaration of State of Emergency and six months suspension of former Governor Joshua Dariye and the lawmakers by then President Olusegun Obasanjo.
The apex court, then headed by Justice Muhammed Uwais, struck out Dariye and the legislators’ case on jurisdictional grounds. Harping on the constitutional implications of the suspension, lawyers and political analysts believed there was a need for the judiciary to intervene to interpret the law to save the state from a constitutional crisis.
A legal practitioner, Femi Olajide, said that the current issue thrown up by the constitution regarding the length of time a governor is permitted to spend in office further buttressed the assertion that President Tinubu’s state of emergency declaration in Rivers is unconstitutional.
“That is why I fully support the Nigerian Bar Association (NBA) position that removing elected officials under the pretext of emergency rule is unconstitutional and unacceptable because such actions undermine democratic institutions and set a dangerous precedent.
“I advise that Fubara proceed to the court to seek interpretation of Section 180 (1 & 2) vis-a-vis the declaration of emergency rule and his suspension from office. Now that the deed has been done, he should challenge the legality and authority of the President to abridge his tenure. The judiciary is the only authority that can solve that puzzle.”
Also speaking on the issue, Sunday Ojumu, an Abuja-based lawyer, contended that since the illegality of the state of emergency has been done, the conclusion is that the governor’s tenure of Rivers State has already been altered. He said that the only way to rewrite the wrong is the extension of the tenure of the governor and his deputy.
“However, it is only through the court that he can get the extension of six months removed from his tenure by the President. If the length of four years guaranteed by the constitution is to be followed, Rivers State will certainly have an off-season election.”
In his reaction, the Former Deputy Vice-Chancellor of the Federal University Oye Ekiti (FUOYE), Prof. Sola Omotola, said there is a need to look at relevant sections of the constitution to get a correct interpretation as well as do justice to the issue.
“I don’t think that is the intent of the law, and I also don’t believe that is the intent of the President, who imposed the state of emergency. If we want a reasonable interpretation of Section 180, we need to look at other relevant sections of the Constitution, especially Section 305, which gave the president the power to declare a state of emergency.
“We need to ask whether what the president has done aligns with Section 305. Although I am not a lawyer, I am a political scientist. Lawyers argue that the governor can only be removed through impeachment. The argument is that while the president can declare a state of emergency, he lacks the authority to remove a democratically elected governor .
“Those who share the view are more numerous than those who say the president has done nothing wrong. I also share this view. The third perspective to this is to rest on precedent. What experience can we rely on in the history of the declaration of the state of emergency in Nigeria? When such declarations were made, what happened to democratic institutions, were they suspended?
“The case of former Governor Ayodele Fayose in Ekiti was a good example. What happened to his tenure? Did they, because of that, extend his tenure? So, these are various issues we must take into consideration.
“But from my reflection, I think it is not proper to say that because he was suspended for six months if per adventure, he was returned to office because of that, we want to extend the tenure because we must take note of the cost-benefit of doing so.
“If you look at what will cost INEC to conduct an off-cycle election, it is better to sacrifice the six months as the cost he has to pay for his action or inaction, which led to the declaration of emergency in the state.”
Another policy and political analyst, Dr Fyneface Dumnamene Fyneface, said neither Governor Fubara nor the State Assembly members should have their tenures extended due to the emergency rule in Rivers State.
He said while they have a four-year guaranteed term by the constitution, the errors that resulted in the crises leading to the declaration of a state of emergency were collectively created by those directly affected.
Fyneface said: “I think the six months out of their tenure should not be extended to serve as an example and deterrent for others, who should see the need to embrace dialogue when they have failed to play politics according to the rules.”
He posited that the six months of emergency rule is to fix the problems that both Governor Fubara and the Martins Amaewule-led state Assembly created in the state, and such a period used to clean up their mess should not be given back to them, as they cannot eat their cake and have it back.”
A former member of the Osun State Assembly, Olatubosun Oyintiloye, said since Chapter 6, Part 2, section 180 of the 1999 Constitution expressly stated that the person shall hold office of governor for four years and the count is from the day he took oath of office and oath of allegiance, Fubara and co. cannot enjoy tenure extension. He said the constitution did not provide additional days (s) apart from the four years stipulated.
“In the case of the suspended Governor of Rivers State and his deputy, the six months of suspension slammed on them cannot be added to their four years in office at the expiration of the suspension.
“Any attempt to add the six months back to make up the four-year tenure will be a gross violation of the 1999 constitution of the Federal Republic of Nigeria, as amended,” he said.
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