The
State of Emergency
in Ekiti State
-
and
the Nebuchadnezzar Non-Option
By Mobolaji E. Aluko, PhD
alukome@gmail.com
Burtonsville
, MD, USA
October 25, 2006
Twenty-Four Days to A State of Emergency
On Tuesday, 26th September, 2006, the 26-man Ekiti State
House of Assembly (ESHOA) passed a motion to serve a notice
of impeachment on the Ekiti State governor Mr. Peter
Ayodele Fayose (of Afao-Ekiti) and his deputy Mrs. Abiodun Christine
Olujimi, (nee Ariyo, of Omuo-Ekiti), alleging gross misconduct against
them. In all, there were five charges against Fayose and two against
Olujimi. 24 out of 26 of the ESHOA were in support of the
motion. The House informed the world that it delivered the notice by
express mail to the accused duo on Friday, September 29 (giving them 14
days to respond), although the governor indicated that he did not receive
his own copy until Tuesday, October 3.
On that same
day, Governor Fayose filed on an ex-parte motion in an Ado-Ekiti court
to stop the impeachment process, a hearing which had a drama of its
own: two Ekiti State judges (Wale Kowe, Segun Akintayo in that order)
declined to take it. However, on Wednesday, October 4,
after Justice Femi Akeju finally agreed to take the case, he promptly
dismissed Fayose's objection as being
"alien in law ."
Figuring that it had received all the "answer" that it
would ever get from the accused duo, the ESHOA went ahead on Thursday,
October 5 to instruct the Chief Judge Kayode Bamisile to form a seven-man
panel to conduct the formal impeachment investigation of the Governor and
his Deputy. Constitutionally, the CJ - who barely 3 months earlier (on
Friday, July 21, 2006, to be exact) had just been sworn in by Governor
Fayose, having been leap-frogged over a more senior judge - had seven days
to do so.
On Monday, October 9, Governor Fayose, in an anticipatory
volley, wrote to Bamisile, completely denying all the charges against
himself in the impeachment notice.
On Tuesday, October 10, 2006, the CJ
announced his seven-person panel - and more: a group headed
by Remi Bamigboye (Chairman) and comprising Alli Apanisile, Sesan Adesuyi,
Segun Da-Silva, Olu Alade, Solomon Ajisafe and Mrs. Olufunmilayo Olukogbon
came into being. By allegedly packing this panel with family relations
and cronies of Fayose, Bamisile initiated a seeming vertical cocktail of
illegalities, the consequences of which he himself could not contemplate.
He swept aside the objections of the Speaker and his ESHOA
- giving the excuse that as a judge with limited contacts with ordinary
folk, he was not expected to know everybody's backgrounds - and dismissed
them all as "jokers." The Bamisile panel went ahead to be formally
inaugurated by the CJ – even after the Speaker forced his way in to the
arena to object to its composition.
For refusing to re-constitute the rigged panel, as well as
refusing to appear before the Assembly on Wednesday, October 11 to answer
to a charge of official misconduct, the ESHOA promptly suspended CJ
Bamisile on that Wednesday – taking care not to "remove" him and hence not
to violate Section 292 of the Constitution about who could "dismiss" a
judicial officer of CJ rank. It moved to fill the vacuum by appointing
an Acting CJ Jide Aladejana, again not violating of constitution Section
271(4) which stated that the most senior judge should step in as Acting CJ
[The other senior judge Fasanmi had declined; after all accepting any
position is not "by force."]
On Thursday, October 12, the Bamisile panel still went
ahead to meet on the impeachment matter - for a total of about thirty
minutes. It promptly discharged the Governor and his Deputy from all
allegations without taking a single oral evidence for and against the
accused persons. Also on this day, Justice Bamisile filed a
case before a High Court in Ado-Ekiti, challenging his suspension by the
House of Assembly. The case was adjourned to be heard on Thursday,
October 19.
Acting Chief Judge Aladejana went ahead to announce, on the
Friday October 13, a new panel with people of unquestionable integrity
and impeccable credentials, headed by Mr. Emmanuel Bamidele Omotosho as
Chairman, and comprising Deacon Olajubu Solomon Obaleye, Mr. Ismail
Olowolafe Daisi, Mr. Kayode Filani, Dr. [Mrs.] Funmi Adeniyi, Rev. F. F.
Ijasan and Major J.O. Odunsina (Rtd.). Later on that same
day, a letter from the Chief Justice Belgore Belogore warned Aladejana
that his appointment as Acting CJ was in violation of Section 271 of the
1999 Constitution of the Federal Republic of Nigeria. However it was
silent about the constitutionality of the dismissal of the Chief Judge
Bamisile himself. The letter was in response to
Aladejana's own October 12 letter to Belgore notifying him of his new
elevated status. In fact, due to such a bizarre early interference by the
Chief Justice of the land, there is still a running rumor that the
letter was forged.
On Friday October 13
and Saturday October 14, the Aladejana panel took evidence from Morakinyo
Ogele, the maverick lawyer whose zillion petitions stirred the EFCC; from
Goke Olatunji, the multi-embattled Personal Assistant of Fayose; from the
EFCC itself represented by one operative Mr. Madaki; and from a lawyer
representing DG Olujimi. There was no representation from Governor Ayo
Fayose.
At Ado-Ekiti on Monday,
October 16, at exactly 9:17 am, after receiving the Aladejana panel report
and calling for a vote, the Speaker of the EHOA's gavel fell in the House,
formalizing the impeachment of Fayose and Olujimi. Fayose
and Olujimi became ex-Governor (having served May 29, 2005 to October 16,
2006) and ex-Deputy Governor ( December 7, 2005 to October 16, 2006)
respectively. The House also formalized the acting judgeship of Aladejana,
who immediately proceeded to swear in the Speaker as Acting Governor.
Later on that same day
(October 16), now suddenly finding his voice, the Attorney-General of the
Federation, Bayo Ojo, weighed in with an opinion that the State House of
Assembly had no power to suspend the Chief Judge of a state, nor (echoing
the Chief Justice) to appoint an acting CJ. He warned that
"Federal Government will not fold its arms and allow the breakdown of law
and order in any part of the country" and that it would "take appropriate
steps to fulfil its responsibility of maintaining law and order in Ekiti
State and indeed in all parts of the Federation." It turned out to be a
promise, not a threat. The new national president of the NBA, Olisa
Agbakoba, also stridently weighed in on the side of the AG, brazenly
storming into Ado-Ekiti to interfere without the courtesy of waiting for
an invitation by Ekiti State's chapter of the NBA, or consulting with two
prominent Ekiti indigenes and legal colleagues - Femi Falana (president of
the West African Bar Association) or past NBA President Wole Olanipekun
(SAN).
Also on October 16, the
deposed deputy governor Olujimi filed a suit at an Ado-Ekiti High Court
challenging her removal from office. On that same day, ex-governor Fayose
disappeared from the scene entirely, some kind of fugitive on-the-run up
until this day, leaving his Deputy Olujimi to fight the battle on, now
claiming to be Acting Governor on behalf on her "departed" Governor, whose
whereabouts she said she knew not. Demonstrating quite some chutzpah -
and seemingly from a political script written elsewhere - she even held a
photo-op "cabinet meeting" at the Old Governor's office.
On Tuesday, October 17,
Fayose also spoke to a Lagos TV channel from his rat-hole hide-out,
claiming his gubernatorial "throne" back.
The grounds had been
prepared: there were three claimants to the Ekiti State governorship!
All of the above actions
ended up in a state of emergency being declared by President Olusegun
Obasanjo on Thursday, October 19. President Obasanjo announced the
imposition of a former ex-military person, Tunji Olurin, as "Sole
Administrator" on Ekiti State. His words were destructive of democracy
in Ekiti State:
QUOTE
The Governor and his Deputy and those who
purported to be Acting Governors or Deputy by this declaration will
cease to be in charge of the affairs of Ekiti State. An Administrator to
manage the affairs of Ekiti State in the person of Brigadier- General
Tunji Olurin (rtd.) is hereby nominated for six months in the first
instance. The Ekiti State House of Assembly also goes on suspension as
the formal legislative body of the State with immediate effect for six
months. Having a State Assembly in position under a State of Emergency
is incongruous and may not allow for the
expeditious actions that the Administrator will need, to put the State
back into a situation of peace, harmony, security for all, and
maintenance of law and order throughout the State. Elected officials
below the State level are not suspended. The Federal Gazette containing
the Declaration has been forwarded to the National Assembly in
accordance with the Constitution.
UNQUOTE
And that is where we are now.
An Awful Prelude: And Why Not The Courts?
This State of Emergency step was the
crowning one of the vertical cocktail of illegalities, and has been
condemned by many segments of Nigerian society, including many Ekiti
indigenes at home and abroad. The irony – and dilemma - is
that the SOE is opposed for various reasons, even contradictory:
-
the pro-Fayose group believes that it precludes the
(early) return of Fayose to his governorship, and so should be quashed.
-
the anti-Fayose group, happy that Fayose was impeached by
hook or by crook by the Legislature, believes that the courts should
have been left alone to resolve the impasse, while Speaker Aderemi
remains as Acting Governor. [It must be added here that
there is an anti-Fayose group that is happy with the SOE, since it
assures at the very mimimum six months of Fayose-less administration,
and who are prepared to deal with the situation six months hence.]
-
the anti-Third-Termers, as well as strict
constitutionalists, who see a dangerous trend in using dubious
constitutional provisions and hasty procedure to remove governors and
precipitate crisis throughout the country, with a possible end point
being the need for a state of emergency in the entire country – and
hence a sneaky extension of the term of this administration by the back
door.
The fact of the matter
is that I also join in expressing serious objection to President
Obasanjo's double-standard in declaring a State of Emergency over my
native Ekiti State . The calm situation on the ground did not give
sufficient justification for that hasty action, and one is fully aware of
other states in Nigeria with worse socio-political situations which did
not receive similar treatment.
Moreover, nothing in
our 1999 Nigerian Constitution – confusing and confusionistic as it is -
translates a declaration of a state of emergency into the destruction of
the democratic structures of the State Executive and the House of
Assembly, and the appointment of a "Sole Administrator", an-ex military
person for that matter. These particular steps are completely alien to
the Constitution. The President therefore assumed powers not
given to him – the same accusation that he levelled against the Ekiti
Legislators in suspending Bamisile and appointing a new CJ. One
wonders what would happen to the Presidency and the National Assembly if a
State of Emergency were to be declared in the entire nation as allowed by
the same Constitution. Would it mean suspension of the national
democratic structures (National Assembly) and the appointment of
an ex-military Sole Administrator from neighboring Togo? Is the situation
of Ekiti State therefore a prelude to such an unfortunate and untenable
circumstance?
We would have expected
the courts to be allowed to settle the constitutional questions between
the now displaced persons at status quo ante of the
declaration of state of emergency: that is, between the acting Governor
Kayode Aderemi; the ex-Governor Ayo Fayose and his ex-deputy, Olujimi,
as well as the status of the ex-CJ Bamisile vis-a-vis the present CJ
Aladejana.
That is what the courts
are for.
More importantly, the
2007 General elections (hopefully) begin with State House and
Gubernatorial elections on Saturday, April 14, 2007, and end
with presidential elections on Saturday, April 21, 2007. Six months
from October 19 is April 19, 2007. What happens with political
activities in Ekiti State for the next six months: same as other states
without a state of emergency - or what? General Olurin has promised no
squelching of political activities - but we shall see.
The Nebuchadnezzar
Non-Option
In the coming days, the
State of Emergency will be fully discussed in the National Assembly,
whether to give it ratification or to reverse it. The questions the
legislators would have to answer in their deliberations, were the SOE to
be reversed, include: what status quo (ante) would Ekiti State
return to in order to know whether Aderemi, Olujimi or Fayose is to be
governor or acting Governor, and whether Fayose's and/or Olujimi's return
would not spark a riot in Ekitiland?
Well, in the Old
Testament Daniel 4:1-37, the story is told of Nebuchadenezzar, a
Babylonian king who ruled from 605 B.C. to 562 B.C. Nebuchadnezzar
was a strong, powerful, and hard king, and offended God gravely – he
destroyed Judah and burned Jerusalem, destroying the temple of God and
taking all of the gold goblets and incense burners back to Babylon.
After being been warned by the captive Jew Daniel following
Nebuchadnezzar's own foreboding dreams, the king was turned into a bush
animal and went through seven years of eating grass and living in the
wild with other animals before he learned to give God the glory.
After this period of being humbled, he returned to rule his
kingdom for another period.
We are not told of the reaction of his subjects to such a
reversal of misfortune.
It would appear that
former Governor Ayo Fayose would want to be the Nebuchadnezzar of Ekiti
State in this impeachment/emergency saga, to return after a period on
the run from the law. He should perish the thought – not after the
deaths of the eight students in Ikere, not after Omojola, not after
Daramola, not after that pregnant woman a la Bamiteko.
Unlike Nebuchadnezzar,
Fayose should wait for just seven times seven years.
That is what Ekitiland demands. That is what would be
conducive to peace, justice and public order in Ekitiland - that Fayose
not return to Ekiti State as governor even for one more day. Ekitiland
no longer deserves him, and if it will take only a State of Emergency to
ensure that, so be it.
___________________________________________________________________________________________________________
APPENDIX
Impeachment of
Governor and Deputy Governor
Section 188-189
188.
(1)
The Governor or Deputy Governor of a state may Removal of Governor be
removed from office in accordance with the provisions or Deputy
Governor of this section. from office.
(2)
Whenever a notice of any allegation in writing signed by not less than
one-third of the members of the House of Assembly.
(b) stating
that the holder of such office is guilty of gross misconduct in the
performance of the functions of his office, detailed particulars of
which shall be specified.
the speaker of
the House of Assembly shall, within seven days of the receipt of the
notice, cause a copy of the notice to be served on the holder of the
office and on each member of the House of Assembly, and shall also
cause any statement made in reply to the allegation by the holder of
the office, to be served on each member of the House of Assembly.
(3)
Within
fourteen days of the presentation of the notice to the speaker of the
House of Assembly (whether or not any statement was made by the holder
of the office in reply to the allegation contained in the notice-, the
House of Assembly shall resolve by motion, without any debate whether
or not the allegation shall be investigated.
(4)
A motion of the House of Assembly that the allegation be investigated
shall not be declared as having been passed unless it is supported by
the votes of not less than two-thirds majority of all the members of
the House of Assembly.
(5)
Within seven
days of the passing of a motion under the foregoing provisions of this
section, the Chief judge of the State shall at the request of the
speaker of the House of Assembly, appoint a Panel of seven persons who
in his opinion are of unquestionable integrity, not being members of
any public service, legislative house or political party, to
investigate the allegation as provided in this section.
(6)
The holder of an office whose conduct is being investigated under this
section shall have the right to defend himself in person or be
represented before the panel by a legal practitioner of his own
choice.
(7)
A Panel appointed under this section shall -
(a) have such
powers and exercise its functions in accordance with such procedure as
may be prescribed by the House of Assembly; and
(b) within
three months of its appointment, report its findings to the House of
Assembly.
(8)
Where the Panel reports to the House of Assembly that the allegation
has not been proved, no further proceedings shall be taken in respect
of the matter.
(9)
Where the report of the Panel is that the allegation against the
holder of the office has been proved, then within fourteen days of the
receipt of the report, the house of Assembly shall consider the
report, and if by a resolution of the House of Assembly supported by
not less than two-thirds majority of all its members, the report of
the Panel is adopted, then the holder of the office shall stand
removed form office as from the date of the adoption of the report.
(10)
No proceedings or determination of the Panel or of the House of
Assembly or any matter relating to such proceedings or determination
shall be entertained or questioned in any court.
(11)
In this section -
"gross
misconduct" means a grave violation or breach of the provisions of
this Constitution or a misconduct of such nature as amounts in the
opinion in the House of Assembly to gross misconduct.
189.
(1) The Governor or Deputy Governor
of a State shall cease to hold office if
(a) by a
resolution passed by two-thirds majority of all members of the
executive council of the State, it is declared that the Governor or
Deputy Governor is incapable of discharging the functions of his
office; and
(b) the
declaration in paragraph (a) of this subsection is verified, after
such medical examination as may be necessary, by a medical panel
established under subsection (4) of this section in its report to the
speaker of the House of Assembly.
(2)
Where the medical panel certifies in its report that in its opinion
the Governor or Deputy Governor is suffering from such infirmity of
body or mind as renders him permanently incapable of discharging the
functions of his office, a notice thereof signed by the Speaker of the
House of Assembly shall be published in the Official Gazette of the
Government of the State.
(3)
The Governor or Deputy Governor shall cease to hold office as from the
date of publication of the notice of the medical report pursuant to
subsection (2) of this section.
(4)
The medical panel to which this section relates shall be appointed by
the Speaker of the House of Assembly of the State, and shall comprise
five medical practitioners in Nigeria -
(a) one of
whom shall be the personal physician of the holder of the office
concerned; and
(b) four
other medical practitioners who have, in the opinion of the Speaker of
the House of Assembly, attained a high degree of eminence in the field
of medicine relative to the nature of the examination to be conducted
in accordance with the foregoing provisions of this section.
(5)
In this section, the reference to "executive council of the State" is
a reference to the body of Commissioners of the Government of the
State, howsoever called, established by the Governor and charged with
such responsibilities for the functions of Government as the Governor
may direct.
Vacancy
in Deputy Governor's Office
Section 191
191.
(1) The Deputy Governor of a State
shall hold the office of Governor of the State if the office of
Governor becomes vacant by reason of death, resignation, impeachment,
permanent incapacity or removal of the governor from office for any
other reason in accordance with section 188 or 189 of this
constitution.
(2)
Where any vacancy occurs in the circumstances mentioned in subsection
(1) of this section during a period when the office of Deputy Governor
of the State is also vacant, the Speaker of the House of Assembly of
the State shall hold the office of Governor of the State for a period
of not more than three months, during which there shall be an election
of a new Governor of the State who shall hold office for the unexpired
term of office of the last holder of the office.
(3)
Where the office of the Deputy Governor becomes vacant -
(a) by reason
of death, resignation, impeachment, permanent incapacity or removal in
accordance with section 188 or 189 of this Constitution;
(b) by his
assumption of the office of Governor of a State in accordance with
subsection (1) of this section; or
(c) for any
other reason, the Governor shall nominate and with the approval of the
House of Assembly of the State, appoint a new Deputy Governor.
Appointment of Chief
Judge
Section 271 of the
1999 Constitution
271.
(1) The appointment of a person to
the office of Chief Judge of a State shall be made by the Governor of
the State on the recommendation of the National Judicial Council
subject to confirmation of the appointment by the House of Assembly of
the State.
(2)
The appointment of a person to the office of a Judge of a High Court
of a State shall be made by the Governor of the State acting on the
recommendation of the National Judicial Council.
(3)
A person shall not be qualified to hold office of a Judge of a High
Court of a State unless he is qualified to practice as a legal
practitioner in Nigeria and has been so qualified for a period of not
less than ten years.
(4)
If the office of Chief Judge of a State is vacant or if the person
holding the office is for any person unable to perform the functions
of the office, then until a person has been appointed to and has
assumed the functions of that office, or until the person holding the
office has resumed those functions, the Governor of the State shall
appoint the most senior Judge of the High Court to perform those
functions.
(5)
Except on the recommendation of the National Judicial Council an
appointment pursuant to subsection (4) of this section shall cease to
have effect after expiration of three months from the date of such
appointment and the Governor shall not re-appoint a person whose
appointment has lapsed.
Dismissal
of a Judicial Officer
Section 292
292.
(1) A judicial
officer shall not be removed from his office or appointment before his
age of retirement except in the following circumstances -
(a) in the case of
-
(i) Chief Justice
of Nigeria, President of the Court of Appeal, Chief Judge of the Federal
High Court, Chief Judge of the High Court of the Federal Capital
Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the
Federal Capital Territory, Abuja and President, Customary Court of
Appeal of the Federal Capital Territory, Abuja, by the President acting
on an address supported by two-thirds majority of the Senate.
(ii) Chief Judge of
a State, Grand Kadi of a Sharia Court of Appeal or President of a
Customary Court of Appeal of a State, by the Governor acting on an
address supported by two-thirds majority of the House of Assembly of the
State,
Praying
that he be so removed for his inability to discharge the functions of
his office or appointment (whether arising from infirmity of mind or of
body) or for misconduct or contravention of the Code of Conduct;
(b) in any case,
other than those to which paragraph (a) of this subsection applies, by
the President or, as the case may be, the Governor acting on the
recommendation of the National Judicial Council that the judicial
officer be so removed for his inability to discharge the functions of
his office or appointment (whether arising from infirmity of mind or of
body) or for misconduct or contravention of the Code of Conduct.
(2) Any person who
has held office as a judicial officer shall not on ceasing to be a
judicial officer for any reason whatsoever thereafter appear or act as a
legal practitioner before any court of law or tribunal in Nigeria.
The
procedure for the declaration of a state of emergency
Section (305) of the 1999 Constitution
305.
(1) Subject to the provisions of this
Constitution, the President may by instrument published in the
Official -Gazette} of the Government of the Federation issue a
Proclamation of a state of emergency in the Federation or any part
thereof.
(2)
The President shall immediately after the publication, transmit copies
of the Official -Gazette of the Government of the Federation
containing the proclamation including the details of the emergency to
the President of the Senate and the Speaker of the House of
Representatives, each of whom shall forthwith convene or arrange for a
meeting of the House of which he is President or Speaker, as the case
may be, to consider the situation and decide whether or not to pass a
resolution approving the Proclamation.
(3)
The President shall have power to issue a Proclamation of a state of
emergency only when -
(a) the
Federation is at war;
(b) the
Federation is in imminent danger of invasion or involvement in a state
of war;
(c) there is
actual breakdown of public order and public safety in the Federation
or any part thereof to such extent as to require extraordinary
measures to restore peace and security;
(d) there is
a clear and present danger of an actual breakdown of public order and
public safety in the Federation or any part thereof requiring
extraordinary measures to avert such danger;
(e) there is
an occurrence or imminent danger, or the occurrence of any disaster or
natural calamity, affecting the community or a section of the
community in the Federation;
(f) there is
any other public danger which clearly constitutes a threat to the
existence of the Federation; or
(g) the
President receives a request to do so in accordance with the
provisions of subsection (4) of this section.
(4)
The Governor of a State may, with the sanction of a resolution
supported by two-thirds majority of the House of Assembly, request the
President to issue a Proclamation of a state of emergency in the State
when there is in existence within the State any of the situations
specified in subsection (3) (c), (d) and (e) of this section and such
situation does not extend beyond the boundaries of the State.
(5)
The President shall not issue a Proclamation of a state of emergency
in any case to which the provisions of subsection (4) of this section
apply unless the Governor of the State fails within a reasonable time
to make a request to the President to issue such Proclamation.
(6)
A Proclamation issued by the President under this section shall cease
to have effect -
(a) if it is
revoked by the President by instrument published in the Official
Gazette of the Government of the Federation;
(b) if it
affects the Federation or any part thereof and within two days when
the National Assembly is in session, or within ten days when the
National Assembly is not in session, after its publication, there is
no resolution supported by two-thirds majority of all the members of
each House of the National Assembly approving the Proclamation;
(c) after a
period of six months has elapsed since it has been in force:
Provided that the
National Assembly may, before the expiration of the period of six
months aforesaid, extend the period for the Proclamation of the state
of emergency to remain in force from time to time for a further period
of six months by resolution passed in like manner; or
(d) at any
time after the approval referred to in paragraph (b) or the extension
referred to in paragraph (c) of this subsection, when each House of
the National Assembly revokes the Proclamation by a simple majority of
all the members of each House.
The Immunity Clause
Section 308
308.
(1) Notwithstanding anything to the
contrary in this Constitution, but subject to subsection (2) of this
section -
(a) no civil
or criminal proceedings shall be instituted or continued against a
person to whom this section applies during his period of office;
(b) a person
to whom this section applies shall not be arrested or imprisoned
during that period either in pursuance of the process of any court or
otherwise; and
(c) no
process of any court requiring or compelling the appearance of a
person to whom this section applies, shall be applied for or issued:
Provided that in
ascertaining whether any period of limitation has expired for the
purposes of any proceedings against a person to whom this section
applies, no account shall be taken of his period of office.
(2)
The provisions of subsection (1) of this section shall not apply to
civil proceedings against a person to whom this section applies in his
official capacity or to civil or criminal proceedings in which such a
person is only a nominal party.
(3)
This section applies to a person holding the office of President or
Vice-President, Governor or Deputy Governor; and the reference in this
section to "period of office" is a reference to the period during
which the person holding such office is required to perform the
functions of the office.
|
