In a recent conversation on the Boko Haram menace with a friend, an Ijaw man who is close to the current administration, I was taken aback when he suddenly blurted: “Honestly, the problem oga (President Goodluck Jonathan) has is his Attorney General. I don’t know how a president can surround himself with people who do not mean well for him.”

Surprised by such a remark that I imagined was probably borne out of a personal grudge against the Justice Minister, Mr. Mohammed Bello Adoke (SAN), I decided to be sarcastic: “You mean Adoke has also joined APC (the opposition All Progressives Party) or is he now one of the people funding Boko Haram?” His response was even more shocking: “Who knows? For all you care Adoke could be both an APC member and a Boko Haram sponsor; afterall, what is the difference between the two?”

When we got to discussion, my friend gave me the full detail of what transpired at a recent Federal Executive Council (FEC) meeting when the president wanted to extend emergency rule in Adamawa, Borno and Yobe states. He said most FEC members were disposed to the idea of the president suspending the three governors and all democratic structures so he could appoint administrators, the way President Olusegun Obasanjo once did in Plateau and Ekiti states. But, according to my friend, it was Adoke who argued against the idea “and even though he was clearly in the minority, his view prevailed just because he carries the useless title of Attorney General.”

Given that conversation, I was not one bit surprised when Ijaw leader, Chief Edwin Clark, said on Tuesday that Adoke has failed in his responsibility to give “appropriate advice” to President Jonathan on the declaration of the state of emergency in the three North-eastern states of Adamawa, Borno and Yobe. And for effect, Clark had to address a lavish media conference to state that position, perhaps to demonstrate how strongly he feels about the issue. As far as Clark is concerned, Adoke ought to have advised the president to remove the governors in the three states because they are “anti-Jonathan and pro-Boko Haram”.

For the simple reason that this proposition has been floating in the air for some time now and given that there are many people who think like Clark, it is indeed imperative for us to interrogate the idea. While I don’t think President Jonathan would succumb to such a dangerous gambit, I still believe he should be properly guided on the matter, just in case people like Clark (who evidently does not seem to understand that a government can only perform in an atmosphere of cooperation, mutual respect and tolerance) succeed with their campaign.

When in May 2004, President Olusegun Obasanjo suspended from office Governor Joshua Dariye of Plateau State and members of the House of Assembly while appointing a Sole Administrator for the State, the consensus of most prominent lawyers at the time was that he acted beyond his powers. From the late Chief FRA Williams to Professors Ben Nwabueze and Itse Sagay, the argument was that there is nothing in the Constitution that so empowers the president to take the actions he did. In fact, rather uncharacteristically, the late Williams issued a legal position which he circulated to the media, about the illegality of the action taken by the president.

Titled “Illegality and Unconstitutionality of President Olusegun Obasanjo’s Declaration of Emergency and Suspension of the Governor and Parliament of Plateau State” and dated 22 May 2004, the late Williams stated: “There is no provision contained in any part of our Constitution which confers such a power on the President. It is a contradiction of all known principles of true federation operating in a democratic society. The Governor is elected by the people of the state. So are the members of the House of Assembly. It was a recognition of these facts that informed the provisions inserted in our Constitution relating to the exercise of emergency powers…”

However, having spent several hours at the United States Information Service (USIS) in Lagos, scouring through documents and papers, I wrote a two-part piece that for some days earned me the sobriquet of “a good boy” at the villa at a period I was very critical of the Obasanjo presidency. Since the usual refrain at that time was “this cannot happen in America”, I had relied on a 1989 document of the Library of Congress titled “Powers of the Presidency” to suggest that such assumption was not entirely correct. Of course, it didn’t matter at the time that my intervention was more an academic exercise on the powers of the presidency than an endorsement of what Obasanjo did.

According to the Congressional paper, “this argument that presidents have the authority to violate the Constitution, to ensure the security of the nation, has been used by wartime presidents to justify extraordinary exercises of power. When it is evident that conditions of national peril exist, Congress and the American public have turned to the president for leadership. Under such conditions, Lincoln and Franklin Roosevelt stretched, reinterpreted, and in some cases, brazenly violated the Constitution in the name of national security. Their claim to an inherent executive power to safeguard the nation was accepted because the American people generally agreed with their assessment of the gravity of the emergency at hand. Presidential claims of an inherent executive power during a doubtful national emergency, however, will likely fail the test of public and judicial scrutiny...”

The crux of my position was that while in the United States a President might not have removed elected officers from office as Obasanjo did, some had also performed no less unconstitutional acts. For that reason, I argued that what Obasanjo did was an exercise of power beyond what the Constitution specifies to meet certain situations which if not curtailed could lead to national insecurity as we could have had with the Plateau State situation at the time. I, however, went further to state that in the United States, the National Emergency Act of 1976 (PL94-412) terminated all states of emergency that were in effect until that time while also setting in place procedures for declaring and, more important from the view of many in Congress, terminating future states of emergency.

In the case of Nigeria, the “Emergency Powers Act 1961” which President Obasanjo sought to ‘modify’ was no longer in use which meant there was already a legal vacuum for the action he took on Plateau State. To that extent, I asked the National Assembly to look beyond Plateau State, beyond the person of Dariye, beyond ethnic affiliations and beyond the religions members professed, to the larger implications for the future of our democracy. The question I asked them to address was: should the president have the power to suspend Governors and House of Assembly members and if yes, what political structure should be in place in the intervening period of interregnum and for how long?

While the National Assembly gave Obasanjo the extra-constitutional power he sought at the time, the Supreme Court eventually rendered what he did illegal in the case filed by Dariye though that arose from his matter with the Economic and Financial Crimes Commission (EFCC) and the manner in which he was “impeached”. However, for the benefit of interested readers, I enclose below this piece, what was published on this page ten years ago on this same issue.

The fact that Obasanjo got away with what was clearly illegal should also be understood within the context of the two political situations he dealt with and the Nigeria of the time. So for Clark and fellow travellers to suggest that President Jonathan can suspend three governors from office in one fell swoop is not only to carry mischief too far, it is also a misreading of the political barometre of the nation today and the dangers inherent in the course of action they are suggesting. Even if we have to compare with what Obasanjo did in 2004, I don’t think they are drawing the correct parallels. One, what obtains in Adamawa, Borno and Yobe states is not a political crisis but rather a breakdown of law and order brought about by external forces that are challenging the political authority in the country and are bent on subverting our constitution to impose their own theocratic order.

To the extent that there is no political crisis in any of the states and the legitimacy of the governors is not in question as far as the people are concerned, it is dubious to suggest applying the “Dariye Formula”. Two, Plateau and Ekiti states where Obasanjo declared emergency rule were controlled by the ruling Peoples Democratic Party (PDP) to which he belong(ed), whereas the three states in question are controlled by the opposition, which makes the situation more dicey. Three, even though it may not have been an important factor at the time, it is today: both Dariye and Ayo Fayose are Christians like Obasanjo (and crucially, the Christian Association of Nigeria was on the former Plateau governor’s side and that led to the famous presidential quote: ‘CAN my foot!’) whereas the governors Clark wants Jonathan (a Christian) to remove are Muslims, in this most delicate season.

Four, the reason being canvassed for the suspension of the three North-east governors is purely political (they are ‘anti-Jonathan’) while in the case of Obasanjo, he took his action based purely on security considerations. Five, Obasanjo’s action was popular in both Plateau and Ekiti states at the time and it succeeded in dousing tension. If Jonathan were to take a similar position in Borno, Yobe and Adamawa states today, there will most likely be an explosion that would compound an already bad situation.

Given the foregoing, it is obvious that what Clark is advocating is not to resolve the Boko Haram menace in the affected states but rather to create more bad blood for the president and add fuel to the fire already smouldering. If the essence of the emergency powers is for the president to have lee-way to deal with serious national security challenges, the prescription by Clark is one that can only worsen our national security situation. Even at that, the framers of the Constitution could not have designed the emergency powers as a punitive instrument or a weapon of political blackmail as Clark and people like him imagine.

I am quite aware, as do most people, that the severity of the national security challenge posed by the Boko Haram insurgency could tempt political leaders to condone or even canvass acts that are clearly illegal. But to reduce the imperatives of emergency powers that are constitutionally available to the president to a partisan format as Clark has suggested would be most unfortunate. Adoke is Attorney General of the Federation. By his job description, he is the custodian of the rule of law in Nigeria and that happens to be central to whatever pretensions we still have to a democratic credential. In all situations, he has a responsibility to protect the President from advice of the kind that could escort him to trample on the rule of law in pursuit of more narrow partisan interests.

On the contrary, Clark has found work in the role of an ethnic guardian and a self-appointed political godfather to the president. He has insistently striven to reduce the president to an Ijaw leader with a narrow ethnic agenda while consigning larger national interests to at best a secondary place. The fact that the president has chosen to keep the governors of the embattled states in place while extending the state of emergency is every bit a plus for his political judgment. It is in fact a greater mark of statesmanship to have democratic structures in place while pursuing a stabilisation of the security situation in the North Eastern states under emergency rule. The president should ignore Clark and people who reason like him.

•This piece by Adeniyi (shown in photo) originally appeared under the headline 'Clark, Adoke and Presidential Powers' in his column “The Verdict” in today’s edition of ThisDay. He can be reached via olusegun.adeniyi@thisdaylive.com

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