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Maintenance Of Illegal Governments In Bayelsa And Oyo

Ben Nwabueze

culled from GUARDIAN, March 12, 2006

The governments of Goodluck Jonathan and Alo-Akala in Bayelsa and Oyo States, installed respectively on 12 December, 2005 and 12 January, 2006, are incontestably illegal governments. Their illegality results from the incontestable nullity of Governors Alamieyeseigha's and Ladoja's removal from office as Governors of their States.

Being founded on acts (i.e the removal) that are null and void, the installation of Goodluck Jonathan and Alao-Akala as Governors is, according to the settled principle of law, a nullity and an illegality. They simply cannot validly be appointed to offices that are not vacant.

The overthrow of the constitution and the rule of law in Bayelsa and Oyo states.

The meaning and significance of what has happened and now exists in Bayelsa and Oyo States seems not to be generally appreciated. The illegal governments of Goodluck Jonathan and Alao-Akala are installed and are being maintained in existence against the Constitution and the Rule of Law, meaning that the Constitution, which is the foundation of the Rule of Law, has been overthrown in Bayelsa and Oyo States. That is the simple truth of the situation in the two States. Contrary to the injunction in section 1(2) that "the Federal Republic of Nigeria shall not be governed.....except in accordance with the provisions of this Constitution", Goodluck Jonathan and Alao-Akala govern the two States, not by the authority of the Constitution, but by the effectiveness of the control they exercise over their affairs, backed by the irresistible physical might of the Nigerian state which is at the complete disposal of President Obasanjo.

Like a revolutionary regime that comes into being through the overthrow of the constitution, physical might and its effectiveness is the sole rationale for the power wielded by Goodluck Jonathan and Alao-Akala over the people of Bayelsa and Oyo States. If this is what Chief Richard Akinjide meant by his "doctrine of physical might" as the basis of the present governments in the two States, then, he is certainly right. But physical might alone cannot confer a legal, not to say, a moral, authority to rule, and without such authority to exercise rule over others, government lacks legitimacy altogether.

What is worse, the Nigerian state's organised instruments of physical coercion or violence represented by the Nigerian Police Force (NPF) and the Nigerian Armed Forces are being used in Bayelsa and Oyo States in a way and manner that violates the provisions of the Constitution regulating and restricting their use. The situation in Bayelsa and Oyo States is thus a case of double illegality - of illegality upon illegality. The illegality is total and unredeemed by anything whatsoever.

The illegal use of the Nigerian state's organised instruments of physical coercion to keep in existence illegal governments in Bayelsa and Oyo States.

First, the use of NPF to keep in existence Goodluck Jonathan's and Alao-Akala's governments is obviously a use for factional or partisan political purpose, which runs counter to the object intended to be served by vesting the command of the Force in a non-partisan, professional policeman (section 215(2) of the Constitution) namely, to guard against as much as possible its being used for factional or partisan political purpose. Clearly, the use of the NPF to support one faction against another in the political crisis in the two States is a subversion of the letter and spirit of section 215(2) of the Constitution.

Second, the use of the NPF in the two States, being on the direction of President Obasanjo, is a usurpation of the power of the Inspector General of Police (IGP) in whom the command of the Force (i.e the control of its operational use) is vested by the Constitution (section 215(2)), subject only to the power of the President to give him "lawful directions" with respect to the use of the Force for "the maintenance and securing of public safety and public order" (section 215(3)), which is only part of the operational use of the Force, the control of which (i.e command) is vested in the IGP. The political crisis in the two States between two rival factions of the same political party cannot be said to pose an immediate or imminent danger to public safety and public order to warrant the invocation of the President's power to give directions to the IGP. In any case, the power envisages a situation of immediate or imminent danger to public safety and public order throughout the Federation or a considerable part of it.

Where the situation affects only one State, then, the power to give directions for the use of NPF belongs, not to the President, but to the Governor of the State concerned under section 215(4) of the Constitution, which is a recognition of the Governor as the chief security authority for his State. In the case of the situation in the two States, assuming that it warrants the invocation of the power, section 215(4) clearly contemplates a lawful Governor, not one illegally installed, since only a lawful Governor can give "lawful direction" within the meaning of that term as used in section 215(4) of the Constitution.

No doubt, the State Governor's power as the chief security authority for his State to give lawful directions for the use of NPF for the maintenance and securing of public safety and public order within his State is qualified by a proviso to section 215(4), which says that, "before carrying out any such directions" the Commissioner of Police in charge of the contingent of the police stationed in the State "may request that the matter be referred to the President.....for his directions". The proviso is being used by President Obasanjo to sideline the Governor and to make himself the chief security authority for the States. Lawful directions by State Governors in the bad books of the President, as, for example, those of Anambra, Plateau, Bayelsa and Oyo States, are often refused in an arbitrary, high-handed manner by their Commissioners of Police on the direction of the President.

Clearly, such arbitrary, high-handed refusals are contrary to the letter and spirit of section 215(4) and its proviso. The proviso must be read in the light of the main provision in section 215(4) which is explicit, clear and emphatic that the State Commissioners of Police "shall comply with those directions or cause them to be complied with" (emphasis supplied). So long as the Governor's direction is directed to the specified purpose, i.e the maintenance and securing of public safety and public order, and provided that it is not unlawful on the other grounds, the State Commissioner of Police must carry it out as a matter of constitutional duty; he is not at liberty to refuse to do so.

The proviso does not contemplate a refusal to comply at the arbitrary whim or caprice of the State Commissioner of Police or the President. It is intended to be used in cases of extreme gravity and sensitiveness, and to check the use of the police at the state or local government levels as an instrument of oppression, harassment and victimisation for partisan political or other such reason.

The words "may request", in the context of the provision in section 215(4) taken in its entirety, rule out such arbitrary, high-handed refusal; they suggest a supplication by a subordinate to a superior. They imply a recognition that, in the matter of the maintenance and securing of public safety and public order in a State, the Governor, as the chief executive and chief security officer of the State, is the boss, the controlling authority, and that the State Commissioner of Police is subordinate to him.

Liberty in the State Commissioner of Police to comply or not to comply, at his arbitrary pleasure or that of the President, is a contradiction of the relationship between him and the State Governor envisaged by the provision; it is antithetical to the letter and spirit of the arrangement of a single police force as an agency common to both the Federal and State Governments for the maintenance of their respective existence and authority and the enforcement of their laws, and suggests a compelling and urgent need for the arrangement to be replaced by a separate police for each government, both federal and state.

But the illegality in the use of the NPF in Bayelsa and Oyo States as elsewhere in the Federation is more than a matter of whether a situation has arisen to warrant the invocation of the power to give directions under section 215(3) & (4). It is, as earlier stated, principally a matter of the usurpation by President Obasanjo of the command of the NPF which is vested in the IGP by section 215(2) of the Constitution. The command of the Force has been taken over almost completely by the President, who thus constitutes himself its commander or rather its commander-in-chief, just as he is commander-in-chief of the Nigerian Armed Forces. It is by virtue of power thus usurped that he directed the use of the NPF in Bayelsa and Oyo States, with the IGP merely acting as directed by him.

The IGP cannot of course afford to assert his constitutional power and refuse to carry out the President's orders, as he will thereby be risking removal from office as IGP through the use by the President of yet another usurped power. By the provision of section 215(1)(a) of the Constitution, the IGP "shall be appointed by the President on the advice of the Nigeria Police Council" which consists of himself as Chairman, all the thirty-six State Governors, the Chairman of the Police Service Commission and the IGP. (Power to appoint carries with it, as an incident, power to remove.).

The phrase "on the advice of the Nigeria Police Council" is a legal term of art importing an obligation to act only as advised by the Council. The provision in section 215(1)(a) thus contemplates the Nigeria Police Council as the effective authority for the appointment and removal of the IGP. In practice, the Council has been relegated to a mere advisory body whose advice, when it is sought at all, is taken or disregarded as pleases the President. Its power in the matter has been completely usurped and taken over by the President. Apart altogether from the risk of removal, it would require an unusual courage in an IGP to resist a President determined, as President Obasanjo is determined, to usurp his (IGP's) power of command. Third, as regards the Nigerian Armed Forces, whilst the President is, by the Constitution, designated their commander-in-chief, with power to determine their operational use (sections 130(2) and 218(1)), his powers in that behalf are limited by the provision in section 217(2) specifying the functions which they can be used to perform. Save one such function, the others are concerned with the defence of Nigeria from external aggression and the maintenance of its territorial integrity and the securing of its borders from violation on land, sea or air (section 217(2)(a) & (b)).

The armed forces are given some function in relation the maintenance of public safety and public order, but this is limited to the "suppressing of insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President, but subject to such conditions as may be prescribed by an Act of the National Assembly" (emphasis supplied section 217(2)(c)). The political crisis in Bayelsa and Oyo States has not sparked any insurrection or breakdown in public order, such as makes it necessary for the armed forces to be used to suppress it or to be called in to aid the civil authorities to restore order. There is thus no warrant under the Constitution for the use being made of the armed forces in the two States.

It is true that the armed forces may also be used to perform "such other functions as may be prescribed by an Act of the National Assembly" (section 217(2)(d)), not being functions inconsistent with those set out specifically in section 217(2)(a), (b) and (c) above. Section 217(2)(c) limits the extent the armed forces can be used for the maintenance and securing of public safety and public order in Nigeria. Any law made by the National Assembly under section 217(2)(d) which gives the armed forces any functions in relation to the maintenance and securing of public safety and public order is unconstitutional, null and void insofar as such functions go beyond the suppression of insurrection and the restoration of order when order has actually broken down or been seriously disturbed.

The provision in section 8(3) of the Armed Forces Act, cap. A20, Laws of the Federation, 2004 edition, that the "'operational use of the Armed Forces' includes the operational use of the Armed Forces in Nigeria for the purpose of maintaining and securing public safety and public order" is therefore unconstitutional, null and void, being inconsistent with section 217(2)(c) of the Constitution - i.e. insofar as section 8(3) of the Armed Forces Act actually authorises the use of the armed forces for any public safety and public order purposes other than the suppression of insurrection and the restoration of order.

Concluding remarks

What is alarming and saddening about events in Bayelsa and Oyo States is that the illegal removal of Governors Alamieyeseigha and Ladoja and the enthronement of illegal governments in their place have become an accomplished fact, and there is, it appears, nothing anyone, the courts included, can do to change it. The ominous indication from those and other events in the country is that we are, under the deceptive guise of a war against corruption, moving inexorably towards the establishment of the pernicious Nazi concept of legality according to which "all means, even if they are not in conformity with existing laws and precedents, are legal if they subserve the will of the Fuhrer." The events in Bayelsa and Oyo States may be re-enacted in other States of the Federation, predictably Plateau, Anambra and Abia States, according as it subserves the will of the Nigerian Fuhrer.

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