Following President Bola Ahmed Tinubu’s declaration of a state of emergency in Rivers State, political analysts, legal practitioners, and members of both the legislative and judicial arms of government have expressed a wide range of legal opinions on the matter.
In the assertion of his executive authority, President Tinubu declared a state of emergency in Rivers State, citing prolonged political conflict between Governor Siminalayi Fubara and the State House of Assembly. This political feud has contributed to economic paralysis and civil unrest in the state. In addition to this, there have been reports of vandalism targeting oil pipelines with zero culprits brought to justice. In response to these crises, the president not only declared emergency rule but also suspended the governor and members of the State House of Assembly for six months.
The announcement sent shockwaves across the nation, sparking intense debate about whether the president has the constitutional authority to impose emergency rule in this manner and also suspend the governor and members of the House of Assembly.
According to Section 305 (B) of the 1999 Constitution, a state of emergency may be declared under specific conditions, including:
- War or imminent danger of war; Breakdown of public order and safety requiring extraordinary measures to restore peace;
- Natural disasters or other calamities affecting a section of the country;
- Any other public danger threatening the existence of the federation;
- OR after a formal request by the State Governor has been made to the President.
For such a declaration to take effect, the president must issue an official proclamation, which must then be approved by the National Assembly. Although the constitution gives the President some autonomy, legal practitioners in the country have had different views on the subject.In a post on X, attorney Ridwan Oke @Ridwanullahi gave a break down on the implications of the president’s decision and where the constitution stands on it:
“A few things that needs to be clarified and understood:
- The President didn’t have to wait for the National Assembly before declaring a State of Emergency. He is entitled to declare and then seek approval of the National Assembly within a limited period of time.
- By the combined reading of sections 188, 189 and 306 of the Constitution, the means of removal of a Governor is clear and this includes resignation, impeachment/Removal, death. No where does it say that the President can suspend.
- There’s an Emergency Powers Act of 1963 which was allegedly repealed by the Emergency Powers Act of 2018. Section 11(3) purportedly empowers the President to suspend the State Governor or Local Government Chair in case of an emergency but it didn’t provide for suspension of Members of House of Assembly. I am still making efforts to confirm whether the law was passed but you can find it here: PLAC NG
- If it was passed, there’s a Constitutional conundrum. To amend the Constitution, you require 2/3 majority of the National Assembly and 2/3 majority of the State Houses of Assembly to amend any provision of the Constitution. The Senate attempted to repeal the Emergency Powers Act of 1963 which has direct effect on Provisions of the Constitution. Could that backdoor amendment, if confirmed, be said to be valid being that 2/3 majority of the State Houses of Assembly was never sought? Or there was no amendment to start with and it was a subsidiary legislation, hence, there was no need for 2/3 of SHOA? We wait…”
SAN and President of the Nigerian Bar Association Barrister Adam Osigwe, made an appearance on Arise TV to express his thoughts on the topic. In the interview, the lawyer reiterated the NBA’s stance on the issue “Our Position at the Nigerian Bar Association is That the Proclamation of a State of Emergency and the removal of the Governor and his deputy is Unconstitutional” He said.
He went on further to buttress his point by saying the National Assembly can’t ratify this declaration because it doesn’t stand on any constitutional foundation. He says the voting procedure used by the National Assembly was unconstitutional and also pointed out that the 114 section in the constitution which the Senate president used to reiterate his point also states that the National Assembly has no power to remove a governor or his deputy.
He added that the situation in Rivers cannot be solved by a declaration of emergency but instead, a political discourse should be set up for both major political players to resolve the enmity between themselves and prevent further conflict.
Constitutional lawyer and Human Rights activist, Dr Tunji Abayomi also aired his views via naijaparrots, on the president’s proclamation and he described it as constitutional.
In a statement issued today in Akure, the Ondo State capital, Abayomi said Section 305 replaces a normal order which is presumed to be existing with an abnormal order brought about by the abnormal situations listed in 305 (3) (a) to (g).
According to him, the authority to determine whether the conditions for issuing a proclamation of a state of emergency exist in any part of the Federation rests solely with the President. However, the power to officially declare a state of emergency is shared with the National Assembly, which must approve it by a two-thirds majority.
Abayomi further explained that once a proclamation is made and approved, the President assumes control of governance in the affected region for the duration of the emergency. This, he stated, is the law.
Renowned member of SAN and popular human rights activist Femi Falana also had a perspective on the subject. In a piece published on Osundefender, Falane expressed his disappointment in the president’s handling of the situation in Rivers State. He acknowledges the president’s authority to declare state of emergency and cited that “ The constitution gives power to the president to take extraordinary measures to restore law and order if, among other reasons, 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 or 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.”He wrote.
However, the law does not grant the president the power to remove or suspend an elected governor. “The extraordinary measures which may be adopted by the President to restore peace and security in the Federation or any particular State do not include the suspension of an elected Governor, an elected Deputy Governor and the dissolution of other democratic structures.”He added.
He went on to cite other cases like the 2004-2006 illegal dissolution of democratic structures when former president Olusegun Obasanjo imposed emergency rule in Plateau and Ekiti state, 2013 when a state of emergency was declared in Yobe, Borno and Adamawa by former president Goodluck Jonathan and many others. He explained how the presidents were advised against these by the legislative arms as it could lead to the dissolution of the constitution and pleads with President Tinubu to likewise follow the advise that has been given to his predecessors and reinstate the suspended Governor and his deputy to restore the democratic structure.
In lieu of these statements and perspectives from different members of the legislative arms, there remains some questions on the minds of many Nigerians:
Does the Nigerian Constitution allow the President to remove a Governor during a state of emergency?
No, however the law is largely mad and directed by the person with the ultimate authority.
What are the constitutional requirements for declaring a state of emergency in Nigeria?
According to Section 305(3) of the Constitution, a state of emergency can only be declared under specific conditions, such as war, external aggression, imminent danger, a breakdown of public order, or natural disasters.
Was the declaration of a state of emergency in Rivers State constitutional?
The NBA has raised concerns that the declaration does not meet the constitutional requirement for a state of emergency and that the removal of elected officials is an unconstitutional overreach of executive power.
What role does the National Assembly play in approving a state of emergency?
Per Section 305(2), the National Assembly must approve the proclamation within two days (if in session) or ten days (if not in session) for it to remain valid. Without such approval, the declaration has no constitutional effect.
Can the President dissolve a state’s House of Assembly during a state of emergency?
No, the Constitution does not expressly provide for the dissolution or suspension of a state legislature by the President under emergency rule. Legislative powers would be expected to remain intact unless removed through due process.
What does the NBA recommend regarding the situation in Rivers State?
The NBA calls on the National Assembly to reject any unconstitutional attempt to remove elected officials and urges that matters be settled via political discourse between Governor Fubara and Minister Nyesome Wike.
As legal and political debates continue, the controversy surrounding the state of emergency in Rivers State has placed the Nigerian Constitution under scrutiny.
Nigerians patiently await the Supreme Court’s interpretation of the Constitution’s provision on State of Emergency. Until then, we may continue to speculate and flex words and arguments over what is right and what is wrong in this instance.
