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MID-WEEK ESSAY: The State of Emergency in Ekiti State - and the Nebuchadnezzar Non-Option
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.
October 25, 2006
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.
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.
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.
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?
We are not told of the reaction of his subjects to such a reversal of misfortune.
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.
T he 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.