Lagos lawyer and delegate to the ongoing national conference, Femi Falana (SAN) has criticised Ijaw leader, Edwin Clarke, for allegedly calling for the removal of Borno, Adamawa and Yobe states’ governors over Boko Haram insurgency.
Falana urged President Goodluck Jonathan to ignore Clark’s call for the removal of the governors.
In a statement yesterday in Lagos, the frontline lawyer noted that it was illegal and unconstitutional for the elder statesman to call for the removal of the governors.
Though he admitted that Clark wielded enormous influence at the Presidency, Falana said his call for the removal of the governors was diversionary and without legal backing.
“There is nothing like partial declaration of a state of emergency in the 1999 Constitution; what Section 305 (c) of the Constitution contemplates is the recourse to ‘extraordinary measures to restore peace’ and security, where there is a breakdown of public order and public safety. This, in effect, means that all democratic institutions should be suspended to permit the military exercise full control until peace and order return.”
Falana said Section 305 of the Constitution, which empowers the President to declare a state of emergency in any part of the country, does not make any provision – expressly or impliedly – for the removal of elected democratic structures.
“In other words, the power of the President to take ‘extraordinary measures to restore peace and security’ under a state of emergency does not include the removal of elected public officers or the dissolution of democratic structures,” he said.
The human rights lawyer stressed that governors could not be held “vicariously liable” for the inability of the President and Commander-in-Chief of the Armed Forces to stem the rising wave of insurgency in the country.
“It is submitted that the adoption of ‘extraordinary measures’ should not be construed outside the ambit of the power of the President to deploy the Armed Forces and the police to restore public peace whenever there has been a breakdown of law and order in the whole country or any part thereof.
“In the process, the fundamental rights of all persons in the affected areas, save the right to life, may be infringed upon in the interest of defence, public safety and public order.
“To that extent, Section 45 (2) of the Constitution provides that ‘an Act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of Section 33 or 35 of this Constitution; but no such measures shall be taken in pursuance of any such Act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency’.
“‘Provided that nothing in this section shall authorise any derogation from the provisions of Section 33 of this Constitution, except in respect of death resulting from acts of war or authorise any derogation from the provisions of Section 36 (8) of this Constitution,” Falana said.
He said that since Clark could not refer to any law or decided case to justify his stand, the Ijaw leader was merely advising President Jonathan to follow the “bad example” of former President Olusegun Obasanjo, who suspended former Plateau State Governor Joshua Dariye and Ekiti State Acting Governor for six months in violation of the Constitution.
He described the Obasanjo era as a period of “executive recklessness” which has been consigned to the dustbin of history.
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