The Legality of Governor Wike’s Recent Directives

      
Governor Wike imposed a dusk-to-dawn curfew in some parts of Port Harcourt on Tuesday 31st March, 2020, precisely at Obiri-Ikwerre junction (Ozuoba, Rumualogu) to Choba and from Education bus stop to Agip junction. Governor Wike stated inter alia in his broadcast that this decision was reached by the state security council after monitoring compliance with the government’s directive on the ban on open markets and other related ventures.

The reason given by the Governor for the curfew is that despite his directive, markets still opened in the aforementioned areas.

Dusk-to-dawn literally means from sunset to sunrise; this would mean that from sunrise residents can go about their lawful activities. But to the surprise of many, residents who went out as early as 6 a.m were driven back by security personnel; Security personnel in enforcing the curfew forced residents who were going about their lawful activities off the streets. This led to a confusion as to when the curfew is to take effect. 

Paulinus Nsirim the Commissioner for Information Rivers State when contacted confirmed that the curfew is a twenty four hour curfew. His statement is in contrast to the Governor’s broadcast. The police in enforcing this order also made some arrests. This is an infringement of the citizens right to freedom of movement as enshrined in Section 41 of the Constitution of the Federal Republic of Nigeria (as amended).

Section 41 states inter alia that:

“Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.”

This right is not absolute and as such will not invalidate any law that is reasonably justifiable in a democratic society as stated in Subsection 2 which largely relates to restrictions placed on persons who have committed crimes or are reasonably suspected to have committed crimes.

In times of emergencies, the right to freedom of movement can be altered but not completely taken away as people need to step out to get the things they need to stay alive.

      For the record, a state of emergency has not been declared in Rivers State; the imposition of a twenty four hour curfew is somewhat  a show of might by the government and is not reasonable at the moment. 

Though we are aware of the threats posed by the COVID-19 virus, things should be done in accordance with the rule of law. 

The proclamation of a State of Emergency should precede the imposition of curfews. The procedure for proclamation of state of emergency is contained in Section 305 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

From the import of Subsection 4 of Section 305, the President alone can issue a proclamation of a state of emergency in a state and this is achieved with the sanction of a resolution by the Governor of a state supported by two-thirds majority of the House of Assembly.

      Governor Wike also announced the suspension of the council chairman of Obio/Akpor LGA of the state - Solomon Ben-Eke and his deputy for failing to implement the state government’s directive on the closure of markets.

This move is also an abuse of power as only the legislative arm of a local government has the constitutional backing to sack council chairmen.

The Supreme Court of Nigeria in a five man panel headed by Justice Olubolade Joe in a unanimous judgement delivered on December 11, 2019 stripped state governors and state Houses of Assemblies of the power to sack elected LGA chairmen and councillors. It held that: 

“The Act giving legislative powers to state Assembly members to undertake the process of sacking elected local government chairmen is null and void.”

It reiterated that only the legislative arm of a local government council is empowered by law to sack council chairmen and councillors.

The reasoning behind this is that the local government chairmen were democratically elected and should not be stripped of the mandate given to them by the people. 

      To this end, as the president cannot suspend or sack any state Governor for failure to heed to his instructions or directives, a state Governor is not also empowered to sack any local government chairman.

The Constitution of Nigeria is Supreme as enshrined in Section 1 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and as such, public office holders and others alike should at all times uphold the rule of law.

In view of this, the directives given by the state governor is not constitutional as it is not within the ambit of the law and as such, is null and void to the extent of its inconsistency with the provisions of the CFRN, 1999 (as amended).