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By Mobolaji E. Aluko,
PhD
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: various Ekiti
State judges (Wale Kowe, Segun Akintayo in that order) declined to take it. However, on Wednesday, October 4, when 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 Bamisile to announce a seven-man panel to conduct the formal
impeachment investigation of the Governor and his Deputy. Constitutionally, the CJ - who barely 3 months
earlier had just been sworn in by Governor Fayose on Friday, July 21,
2006, and 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 Chief
Judge 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 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, the ESHOA promptly suspended CJ Bamisile
on that Wednesday – taking care not to "remove" him and hence not violating
Section 292 of the Constitution. 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.
Aladejana went ahead to announce, on the Friday October 13, a new panel with people of unquestionable integrity and impeccable
credentials, headed by Mr. Emanuel 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 in response to Aladejana's own October 12 letter
to Belgore of notification of his new elevated status was made available to the
Press – but apparently not directly to Aladejana. In fact, there is still a
running rumor that it was a forged letter. In any case, the Belgore letter warned that Aladejana's 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.
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 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 the
two Ekiti indigenes 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, some kind of fugitive on the run up until this day, leaving his Deputy
Olujimi to fight the battle on, still claiming to be Deputy Governor while
acting as Governor on behalf on her "departed" Governor. Demonstrating quite
some chutzpah - and seemingly from a political script written elsewhere - she
even held a "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.
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 has been made 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
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 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 death of 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.
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.
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Authors 
Posted by Robot| 26.10.2006 00:20