Salient issues behind Caverton versus Wike row

On the surface, the outbreak of COVID-19 pandemic seems to be fuelling the friction and subtle power play between the Rivers State and Federal Governments. It remains a matter of public record that the relationship between Governor Nyesom Wike and the All Progressives Congress (APC)-led Federal Government has not been rosy.

But, by authorising Caverton Helicopters pilots to fly ten passengers into Port Harcourt, the Rivers State capital, the Ministry of Aviation inadvertently breached the state’s COVID-19 containment orders. That was akin to taking a naked flame through a petrol station, thereby further exacerbating the dour relationship between the two tiers of government.

Matters came to a head last Tuesday when the police arrested two pilots working for Caverton Helicopters alongside ten passengers at the Air Force base, Port Harcourt.

The twelve persons were subsequently arraigned in court and remanded in custody. Shortly after, an aide to Governor Wike had explained that the pilots were not arrested for flying a helicopter, but basically for refusing to cooperate with state health authorities.

He said the culprits failed to comply with regulations that demanded that anyone coming into the state for essential duties should be tested for the contagious virus.

Rivers State Containment Effort
Governor Wike had, in a bid to check the spread of COVID-19 in Rivers State, which happens to be the hub of Nigeria’s oil and gas industry, declared a statewide lockdown, with strict rules.

The general belief in Rivers State government circles is that the COVID-19 pandemic, which now threatens to take a toll on the country’s fragile healthcare system, would have been averted if the Federal Government was not slow in responding to calls for the country’s airspace, sea and land borders to be shut.

Wike had on March 25 reeled out measures aimed at tackling the spread of the disease in the state based on political will and medically-informed measure.

First, the governor had signed an Executive Order on March 19, in pursuant of Sections 4 and 8 of the Quarantine Act, Cap. Q2 Laws of the Federation of Nigeria, 2004 and regulation 11 of Quarantine (Coronavirus (COVID 19) and Infectious Diseases) Regulations, 2020.

Then, following the prevention of a lady suspected to be infected with COVID-19, from boarding a flight from Abuja to Port Harcourt, by security agents and subsequent announcement of an index case in the state, Wike swiftly announced the closure of all land and sea borders. The governor also barred aeroplanes from landing at the Port Harcourt International Airport and Bonny Airstrip, used mainly by multinational oil companies from March 26, 2020, when the order came into effect.

However, not long after, the governor said he received requests from the Nigeria LNG Limited, Total E&P Nigeria Limited, International Breweries PLC, Oilserve Limited and Nigerian Gas Company, for his government to relax the measures because of their activities.

While disclosing that the state was also inundated with letters from the Federal Government to allow oil companies to fly in expatriates to drill oil, Wike stated: “I have said before that I don’t have right to close the airport. But I have the right of saying don’t enter my state because we want to know your status.”

Nonetheless, the governor stressed that the state government could not grant those requests, contending that the protection of human life was more important than any other consideration.

However, he assured that his administration would review its restrictions concerning the activities of the oil and gas companies when fully convinced that it would be reasonable to do so.

Clash Of Rights
Acting within its extant powers, the Federal Government began to authorise airplanes and helicopters conveying oil workers to land at the Air Force base.

Piqued by that seeming affront, Wike lamented, accusing the Federal Government of endangering the lives of the citizens of his state by flying in expatriates, some of whom were from countries with community infection.

All hell was let loose last Tuesday when police arrested the pilots and passengers and arraigned them in court in Port Harcourt. Indeed, the action of the state and the police infuriated the Federal Government and the helicopter company.

The Minister of Aviation, Hadi Sirika, acknowledged that approvals were given to the airlines and helicopter companies to fly into Port Harcourt, in the national interest and to boost national revenue.

He said the Air Force made a grave mistake by inviting Governor Wike into a Federal Government property to make arrests, arguing that authority was given for the planes and helicopters to land because such power was exclusively on the exclusive list.

Sirika declared: “Those flights were approved lawfully, legally and correctly. So yes, we will do everything lawful and legal and reasonable to get those pilots back and operations will continue in the national interest.”

But, interpreting the utterances of the minister as an effrontery on the powers conferred on him as the Chief Security Officer of the state, Wike who has continued to insist that he does not want the State to be overwhelmed with sick and dying patients, declared Carveton Helicopters, persona non-grata in Rivers State.

According to Wike, “As expected, and required by our laws, the crew and the passengers on board that ill-fated helicopter was promptly arrested by the law enforcement personnel and are being prosecuted before our courts in line with our   COVID-19 Declarations and Containment Orders.

“Caverton Helicopters claimed to have gotten permits from some federal agencies to fly passengers into the state, which never bothered to take Rivers State Government into confidence before issuing such permits in violation of our laws and containment orders.

“While the federal agencies reserve the right to issue flight permits to airline operators to fly into Rivers State, we insist that the state government must equally be informed and taken into confidence in the process. This is the only way to avoid suspicion, conflict of interests and   unnecessary   bickering   between   the   state   and Federal Governments in our collective efforts to combat the spread of COVID-19 in the country.”

The governor maintained that while the state appreciates the need to protect business interests and operations, it would not welcome businesses or companies that value their business activities or profit more than or in clear disregard of the lives and health of the people.

Beyond Partisanship
While Sirika and Wike could be said to have taken highly partisan lanes, legal experts blame the lack of synergy between the Federal and State Governments for the brewing friction.  

A legal expert, Professor Ritchard Wokocha, said a section of the Quarantine Act provides that where the President had not issued an executive order, a governor can do so.

Wokocha stressed that the executive order declaring the existence of COVID-19 as a dangerous disease and restriction of movement by Governor Wike, to prevent its spread in Rivers state was properly made before President Muhammadu Buhari made his.

The lawyer, however, said the critical issue was that the constitution requires that the executive power of the state is not exercised in such a manner that it precludes or prevents the federation from being able to function.

His words: “The state government had properly done so, because at the time they enacted the Executive Order in relation to the declaration of disease and restriction of movement, in pursuant to the Act, the president had not done one.

“The president has subsequently done so and provided an exemption for a number of essential services that are needed. Now, where you have a situation of an executive order made by the governor and one subsequently made by the president, that of the president takes precedent, it supersedes that of the state.

“So if federal authorities have granted leave to a plane to fly as in this case, the state authority cannot prevent that plane from taking off. Secondly, that plane was permitted to move essential service providers, which are exempted under the President’s Executive Order.  

“We will have anarchy if the president should give directives and the state government gives a counter directive, that will create anarchy. We have 36 states and you are definitely going to have that situation.”

Wokocha said a governor has no powers to close borders, prevent interstate transaction and interstate roads and boundaries, but remarked that if a governor declared an area within the state, for instance, Mbiama, in Rivers State, as a disease area, then it could be justifiably be said that nobody would be allowed to pass through the border town.

On his part, a former President of the Nigerian Bar Association (NBA), Onueze Okocha (SAN), said it was important to note that the governor did not go to the airport, which is a military facility on his own, but was invited.

The senior advocate asserted that while the Federal Government has the legal power to authorise flights into the facility, the governor also has a constitutional right to ensure the protection of life and property within the territory he controls.

He said: “This is an emergency situation and the Federal Government must understand that the governor is on the ground here and ostensibly in charge of security and we must be certain that all protocols are followed. 

“The governor is in charge of security in this state and all the federal agencies that are in charge of the airport, including international airport are to ensure that people entering Rivers State are given proper screening because the important thing here is the safety and the health and wellbeing of the people of Rivers State.”

Okocha pointed out that if the Federal Government wanted to fly in oil workers, they could have informed the governor and got clearance, stressing that “these oil workers, don’t just land and remain at the airport, instead, they should enter, move from Rivers State across to somewhere else.”

While pleading that the matter should not be politicized, the senior lawyer stated: “The governor has made broadcast and stated clearly the point that he does not control the airspace. All that he is concerned with is the safety of his people of Rivers State.

“One important thing we seem to be losing sight of is the status of the pilots, who are without authorisation, the status of the passengers they are bringing in without authorization.”

Another authority in law, Ifedayo Adedipe (SAN), said if there is an executive order in place issued by a state governor, it would be inappropriate for anyone to violate such order, even as he warned that it could be perilous to ignore or undermine a state governor’s powers.

Adedipe said: “I am trapped in Ondo State for instance. I would have loved to be in Lagos, Port Harcourt or Abuja, but I can’t, because of the Executive Order by the various governors. And it is for the interest of all of us.

“I recognise that there are some important essential services in which exception could be made, but I think there should be a synergy if you want to come to a state where there is such Executive Order. You get clearance. It will not be right to ignore a governor and do so. If you do so, it might be at your own peril.”

But, just as a human rights lawyer, Higher King, observed that when a federal and state law clash, the federal law takes precedent, the Managing Director and Chief Executive Officer of Abito Global Services, Mr. Richard Akinaka, commended Governor Wike for his commitment to protecting the people from the Coronavirus pandemic.

A retired civil servant, Mr Blessing Wikina, said the disposition of Aviation Minister to authorise flights from highly impacted areas to land in Port Harcourt, portends danger to those residing in Rivers State.

Wikina said under the President Goodluck Jonathan’s administration when it seized the Rivers state government-owned Embrer Jet, and accused the state of purchasing the Aircraft illegally, Caverton Helicopters through which the state purchased the jet, denied the then Rivers State government.

“RVSG responded, tendering documents, to show that the Aircraft wasn’t purchased illegally, but purchased properly via Caverton Helicopters, as required by Aviation Protocols.

“But in a sharp twist, Caverton Helicopters appeared before the House Committee, and denied the claims of RVSG and went ahead through its CEO, to allege that the state forged its official letterhead.

“Caverton apparently did that to please then Aviation Minister, Stella Oduah, who had threatened to revoke their Aviation Operational License, if the company admits that it truly got the Aircraft for RVSG,” Wikina recalled.

He expressed the belief that Governor Wike had shown leadership in the effort to keep Rivers State’s citizens safe from COVID-19, wondering what was so “economic” about the flight into Port Harcourt that could expose citizens multiple deadly infections.

“Our lives should matter, beyond economic consideration,” he maintained.

Caverton Angle
However, stating its side to the controversy, Caverton Helicopters said the pilots detained in Rivers facility were cleared by federal agencies to fly to Port Harcourt.

The company noted that at the start of the COVID-19 lockdown, it received a letter from its clients, saying that they have been given approval/ exemption to fly and continue operations.

“We, Caverton, along with three other companies, also received approval from the Minister of Aviation to fly only essential services, mainly in the Oil and Gas industry. Lastly, we got another approval from the Nigeria Civil Aviation Authority (NCAA) to fly for this same oil and gas sector. We have been flying along with these guidelines for the past seven days,” the company stated.

The firm regretted that despite all pleas by its lawyers, who showed all the relevant documents, the pilots were arrested and taken to the magistrate court and charged.

The company appealed to the Federal Government “to urge the Rivers State government to release our pilots who violated no law and are being unduly punished for reasons we still do not understand.”