By M.S. Ibrahim, SAN
The declaration of a State of Emergency in Rivers State by President Bola Ahmed Tinubu on Tuesday, 18th March 2025 has ignited a constitutional debate on its legality. By this declaration, the Governor of Rivers State, Mr. Siminalayi Fubara, his deputy, Mrs. Ngozi Odu and all elected members of the House of Assembly of Rivers State were suspended for an initial period of six months. Vice Admiral Ibokette Ibas (Rtd.) was nominated as Administrator by the President to take charge of the affairs of the state.
The President stated that the declaration does not affect the judiciary in Rivers State, which shall continue to function in accordance with its constitutional mandate. He further declared that the Administrator will not make any new laws, but will be free to formulate regulations as may be deemed necessary and that such regulations will need to be considered and approved by the Federal Executive Council and promulgated by the President for the state.
The President attributed his decision to declare a state of emergency to an analysis of the political situation in Rivers State. He stated that for over 14 months, Rivers State was in a state of political crisis, triggered by Governor Siminalayi Fubara’s demolition of the State House of Assembly on December 13, 2023, without rebuilding it and that despite multiple interventions, the crisis remained unresolved.
He further stated that on February 28, 2025, the Supreme Court ruled that the Governor had collapsed the legislature and dismantled democratic governance. The Court reaffirmed the validity of 27 lawmakers and ordered the immediate restoration of constitutional rule, including the passage of an Appropriation Bill, which remains unimplemented. The President added that militants have escalated attacks, including vandalizing oil pipelines, with no action from the Governor to address the security threats and that given the total breakdown of governance and rising insecurity, urgent intervention became necessary to restore constitutional order and protect lives and property.
Admittedly, the declaration of a state of emergency is one of the most extraordinary measures a President can undertake in order to address serious threats to national stability. Nevertheless, the exercise of this power must adhere strictly to constitutional provisions so as to prevent the erosion of democracy and the rule of law. The power to proclaim a state of emergency in Nigeria is regulated by the provisions of Section 305 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). This section, particularly subsections 1 and 2 thereof, donates the power to the President and outlines the circumstances under which an emergency may be declared and the procedure for making the proclamation of state. Without pulling punches, the section states that:
(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.
A cursory perusal of the afore-quoted constitutional provisions leads to the inescapable conclusion that the power to make a state of emergency proclamation is not at large. First and foremost, the power to proclaim emergency subjects itself to the provisions of the Constitution. This means in exercising this provision any decision which directly conflicts with clear provisions of the constitution instantly amounts to naught. This is profound Looking at the provisions of section 305 of the constitution, the circumstances which justify a state of emergency proclamation are:
(a) when the Federation is at war;
(b) when the Federation is in imminent danger of invasion or involvement in a state of war;
(c) when there is an 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) when 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) when 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) when there is any other public danger which clearly constitutes a threat to the existence of the Federation; or
(g) when the President receives a request to do so in accordance with the provisions of subsection (4) of this section.
From the foregoing, it is clear that the drafters of the grundnorm clearly intend that the power to proclaim an emergency must first be rooted in dire circumstances and it must be sparingly exercised. So much so that it mandates the concurrence of the National Assembly by two third majority votes to gain efficacy and sustainability.
Now, pivotal to the declaration of an emergency is the fact that in the case of a proclamation made under the circumstances provided in subsections (c), (d) and (e) of section 305(3) of the constitution is the fact that the power is exercisable by the President only after the Governor of State fails to make a request to him to issue a proclamation of emergency after the Governor himself has the sanction of two-thirds majority of the State House of Assembly to so do. For emphasis, the provisions of sections 305(4) and (5) of the 1999 Constitution are reproduced below:
“(4)The Governor of a State may, with the sanction of a resolution supported by a 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 the 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.”
From a calm reading of the provisions of section 305(3) of the constitution, the only instance(s) where a President can make a proclamation of emergency without recourse to the provisions of subsection (4) and (5) of the constitution is: when the federation is at war, or in imminent danger of invasion or when there is any public danger which clearly constitutes a threat to the existence of the Federation. It will, therefore, be interesting to see the full text of the Gazette copy of the proclamation of the state of emergency issued by the President in respect of River State!
If the press statement made by the President declaring the emergency is the crux of the proclamation made, it can hardly be argued that the President exercised his powers under section 305 subsection 3 (a), (b) and (f) of the constitution. It thus begs the question as to whether the President violated the provisions of section 305(4) and (5) of the constitution.
As stated earlier, the proclamation made by the President only has an immediate effect of two days or ten days subject to the resolution of the National Assembly by a two third majority voted. Two days, when the National Assembly is in session, or within ten days when the National Assembly is not in session after its publication vide section 305(6)(b) of the constitution. A corollary to the above is the fact that nothing in the entire provisions of section 305(1)-(6) of the constitution donates powers to the President to suspend, remove, halt or pause, however, the powers of a democratic elected Governor, Deputy Governor or members of a State House of Assembly.
However, what appears to be a blind spot in the constitutional provision relating to the proclamation of a state of emergency is the seeming silence thereof of the Constitution on the definitional scope, extent of application and consequences thereof of the phrasal expression of a proclamation of a state of emergency, requiring therefore, a recourse to the etymological basis of the phrase to aid proper interpretation. However, it must be borne in mind that whatever dictionary definition of a state of emergency anyone may suggest, same cannot override or supplant the purposive interpretation to which every constitutional interpretation is subject so that it does not run counter to the objective of the Constitution as preserved under the recitals, particularly the 2nd recitals to the Constitution which touches on the promotion of good governance and the welfare of the people.
At any rate, Nigeria operates a federal system under which the states, as a critical component thereof, retain significant autonomy. Arbitrary removal of Governors and disbandment of state assemblies under the guise of emergency rule, is a complete erosion of federalism.
It is also common knowledge that the Senate and House of Representatives supported the proclamation and “demanded an amendment to the proclamation publication to include the setting up a reconciliation committee into the imbroglio between the Governor of Rivers state, the members of the Rivers State House of Assembly and other persons. It was also demanded of the President that the tenure of the emergency rule be less than six months. Nigerians were also surprised to note that this all-important resolution was undertaken by way of a voice vote and with ephemeral debate by the Senators and Members of the House of Representatives.
The action of the National Assembly amplifies and brings to the fore the derogation of the relevant provisions of the Constitution by the identified players.
By dint of the provisions of Section 305 (1)-(6) of the Constitution, no power is donated to the Senate or House of Representatives to modify the proclamation instrument published in the official gazette by the President. The comprehension-friendly provisions of the aforementioned provisions of the Constitution limit the participation of the Senate or House of Representatives to support the proclamation “as is” or its outright rejection.
The question that easily comes to mind is, where lies the power for the President to amend the official gazette already published to kotow the demands made by the National Assembly? Upon amendment, is the President expected to resubmit the “amended gazette” or “new gazette”? Or is it believed that there is already an advance approval of the “amended gazette” or “new gazette”? These actions do not draw strength from the clear provisions of section 305(1)-(6) of the Constitution.
In conclusion, the power to declare a state of emergency is not a license for unconstitutional governance. Nigeria’s democracy must be safeguarded against arbitrary executive actions that threaten constitutional order. The National Assembly, judiciary, civil society, and international bodies in the spirit of cooperation for good governance must remain vigilant to prevent any unconstitutional abuse of emergency powers. The rule of law must always prevail over political expediency. We must Uphold the Constitution and Democracy. A state of emergency does not operate to suspend or remove elected officials. Political crises should be resolved through legal mechanisms, not emergency rules.
In parting, the dictum of DENTON-WEST, JCA in Balonwo & Ors. vs. Obi & Anor. (2007) LPELR-4255 (CA) page 80-81, paras D-B is noteworthy and thought-provoking. In the said case, it was held that:
The Constitution of our great country, Nigeria is observed more by payment of lip service to its contents than in upholding the same. The breach of the Constitution by all and sundry more especially by our leaders is appalling, and this has led to a lack of good governance. Our leaders have abandoned the sacred duty of upholding the Constitution of Nigeria, 1999, which they swore to uphold and instead have subjected the Constitution to ridicule. It is this ridiculing of our laws and the Constitution in particular that led to this unwholesome spate of litigation impeachments, corruption and indeed dangerous politicking that has rendered society into traumatic convulsions. The whole Nigerian society instead of enjoying that which the Constitution in its opening declared for Nigerians now lives in fear.
Nigeria’s democracy depends on upholding constitutional boundaries and federalism. The nation watches closely as this situation unfolds, knowing that the rule of law, not executive fiat, must determine Nigeria’s future.
M.S. Ibrahim, SAN writes from the Federal Capital Territory, Abuja.
