By John Collins Nwobodo, Esq.
The Wikipedia defines “state of emergency” as a situation in which a government is empowered to put through policies that it would normally not be permitted to do, for the safety and protection of its citizens.
Consideration for the safety and protection of its citizens is the philosophical underpinning behind the sovereign powers of the state to declare a state of emergency. In Nigeria, as in other parts of the world, the security and welfare of the people are considered the primary purpose of government. Thus, section 14(2)(b) of the 1999 Constitution provides pungently that the security and welfare of the people shall be the primary purpose of government. Therefore, the sovereign power may declare a state of emergency where the safety, security and welfare of the inhabitants of a state or country are under threat to such an extent that requires extraordinary measures.
LEGAL FRAMEWORK:
The Constitution of the Federal Republic of Nigeria 1999 (as amended) being the grund norm and the font et erigo outlined the presidential power to declare a state of emergency. Thus, section 305 of the 1999 Constitution made detailed provision respecting the following matters: (1) by whom the power of proclamation of state of emergency is exercisable, (2) grounds for declaration, (3) the procedure for declaration, (4) the parliament’s role, (5) cessation of the declaration. Each of these matters shall be considered anon.
Additionally, section 75 of the Terrorism (Prevention and Prohibition) Act, 2022 made provision regarding declaration of a state of emergency but subject to the provisions of the Constitution, as part of anti-terrorism measures.
By whom is the power of proclamation of state of emergency exercisable?
The power to declare state of emergency is vested in the President of the Republic. The power is not absolute but exercisable subject to the provisions of the Constitution. In essence, the President cannot exercise the power whimsically and capriciously but in good faith and conscience. See section 305 (1) of the 1999 Constitution.
The President is also empowered by section 75 of the Terrorism (Prevention and Prohibition) Act, 2022 to declare a state of emergency as part of anti-terrorism measures, wherein it provided thus:-
(1). Subject to the provisions of the Constitution of the Federal Republic of Nigeria, 1999, the President may in accordance with the advice of the Executive Council of the Federation, by proclamation published in the Federal Government Gazette, declare a state of emergency in Nigeria or any part of Nigeria as part of anti-terrorism measures.
(2). On the declaration of a state of emergency under subsection (1), the President may take such measures as he consider necessary and justifiable for the purpose of dealing with the situation that exists during the oeriod that the state of emergency is in force.
It is therefore pungent, lucid and indubitable that the power of proclamation of a state of emergency is vested in the President of the Federation.
Grounds for declaration of state of emergency
Before the President will declare a state of emergency, he must be satisfied that any or a combination of the grounds for declaration of state of emergency exists. The grounds are outlined in section 305 (3)(a)-(g) of the 1999 Constitution. The grounds are:
War: If the Federation is an actual state of war or in imminent danger of involvement in war. See section 305(3)(a) & (b).
Invasion: If the Federation is in imminent danger of invasion. See section 305(3)(b).
Actual breakdown of public order and public safety: If there is 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. See section 305(3)(c).
Clear and present danger of an actual breakdown of public order and public safety: If 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. See section 305 (d).
Occurrence or imminent danger affecting the community or a section of the community in the Federation. See section 305 (e).
Occurrence of any disaster or natural calamity affecting the community or a section of the community in the Federation. See section 305 (e).
Public danger: If there is any other public danger which clearly constitutes a threat to the existence of the Federation.
Request from a Governor of State backed by a resolution passed by two-thirds majority of the House of Assembly where situations exist to wit:- (1) actual breakdown of public order and public safety in the state to such extent as to require extraordinary measures to restore peace and security, (2) clear and present danger of an actual breakdown of public order and public safety in the state requiring extraordinary measures to avert such danger, (3) occurrence or imminent danger affecting the community or a section of the community in the State, and (4) occurrence of any disaster or natural calamity affecting the community or a section of the community in the State. See section 305 (4).
It should be noted President’s power to declare a state of emergency in a State does not inure automatically or exercised as a matter of course. The power only becomes exercisable where any of the situations which would necessitate a request from the Governor has arisen and the Governor has failed within a reasonable to make a request to the President to issue a proclamation. See section 305 (5).
Procedure for proclamation of state of emergency
Initiation of the proclamation:
The procedure for proclamation of state of emergency entails first, publication of the instrument of declaration of state of emergency in the official gazette of the Government of the Federation, followed by notification to the National Assembly by transmission of copies of the official gazette containing the proclamation and details thereof to the President of the Senate, and the Speaker of the House of Representatives. See section 305(2).
The role of the National Assembly:
A state of emergency declaration has a transitional period of 2 days when the National Assembly is in session or 10 days when the National Assembly is not in session to receive the confirmation/approval of the National Assembly by a resolution supported by two-thirds majority of all the members of each house of the National Assembly. Therefore, when the National Assembly is in session, it shall forthwith convene or arrange for a meeting of each house to consider the situation whether or not to pass a resolution approving the proclamation. See section 305 (2) & (6)(b). It means that to sustain a declaration already made by the President, the votes of at least 240 members of the House of Representatives and 73 Senators are required.
Cessation of declaration of emergency
A proclamation of a state of emergency shall cease in any of the following circumstances:-
Revocation: The President can revoke a proclamation of state of emergency by an instrument published in the official gazette of the Government of the Federation. The National Assembly too, can revoke a proclamation of a state of emergency by a simple majority of all the members of each house. See section 305 (6) (a) & (d).
Rejection: If the National Assembly does not pass a resolution approving the proclamation, the proclamation shall cease to have effect. See section 305 (6) (b).
Lapse of time: A proclamation shall cease to have effect after a period of six months has elapsed since it has been in force. Notwithstanding, the National Assembly may, before the expiration of the period of six months, extend by resolution, the period of the proclamation of the state of emergency to remain in force from time to time for a further period of six months. See section 305 (6)(c).
PROCLAMATION OF STATE OF EMERGENCY IN RIVERS STATE: A MIXTURE OF RIGHT AND WRONG
The proclamation of state of emergency in Rivers State on Tuesday, 18th March 2025 by President Bola Tinubu has been greeted with mixed or varied reactions. While some cross section of Nigerians applauded or commended the declaration, others have condemned it in very strong words. Understandably, no one saw it coming; it is more like Nigerians were taken unawares.
Criticisms against the proclamation
Criticisms of the proclamation spin around non-existence of the grounds for proclamation as stipulated in section 105 of the 1999 Constitution, the suspension of elected Governor, Deputy Governor and members of the House of Assembly, the appointment of an unelected person as Sole Administrator akin to unconstitutional take-over of the government of Rivers State, the vesting of power to make regulations jointly on the Sole Administrator, the Federal Executive Council and the President.
i. Is there any constitutional ground supporting the proclamation of state of emergency in Rivers State?
The Nigerian Bar Association (NBA) through its President, Mazi Afam Osigwe, SAN, in a Press Statement acknowledged that the President based the declaration of the state of emergency in Rivers State on political tension in the State and due to the vandalization of pipelines. The Bar Association narrowing only on political tensions opined that the declaration did not meet the threshold stated in section 305 of the Constitution. The Bar Association omitted to sift the totality of the reason given by the President in his proclamation speech to see whether any other reason so given met the constitutional threshold.
A Learned Senior Advocate of Nigeria, J.S. Okutepa, in an article entitled: “The Power of the President to Remove An Elected Governor And Declaration of State of Emergency in Any Part of Nigeria.” queried, “Can it be reasonably said that the situations in section 305(3) (c), (d) and (e) existed in Rivers State at (sic) the date the president purported to have the declaration of state of emergency?” He then answered, “I do not think so. Many Nigerians of reasonable minds, too, do not think so.” The Learned Silk did not think that there are (1) 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, (2) 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, (3) occurrence or imminent danger affecting the community or a section of the community in the Federation, (4) occurrence of any disaster or natural calamity affecting the community or a section of the community in the Federation.
To determine whether there is the existence of any ground cognizable under section 105 of the 1999 Constitution, regard shall be had to the reasons/grounds/justifications advanced by the President. In the 18 paragraph address by the President, he enumerated as follows:-
(a). Un-abating or intractable political crisis in Rivers State.
(b). Demolition of the House of Assembly by the Governor.
(c). Pronouncement of the Supreme Court in the case of Rivers State House of Assembly & Anor. v. The Government of Rivers State & 9 Ors., which heavily deprecated the unconstitutional acts of the Governor of Rivers State.
(d). Threats by some militants against the perceived enemy of the Governor which threats the Governor condoned without disowning the denouncing the militants.
(f). Lack of harmony between the Governor and the House of Assembly that has resulted in a deadlock or stalemate in democratic governance in Rivers State.
(g). Available security reports of disturbing incidents of vandalization of pipelines by some militants without the Governor taking any action to curtail them.
(h). Many more unspecified acts of the Governor.
After enumerating the circumstances prompting the proclamation, the President echoed that the situation required extraordinary measures to restore good governance, peace, order and security.
By way of elimination, the grounds of war, imminent danger of involvement in state of war, and imminent danger of invasion are ruled out. The occurrence of disaster or natural calamity is also ruled out.
The remaining grounds, namely:- (1) 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, (2) 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, (3) occurrence or imminent danger affecting the community or a section of the community in the Federation, (4) any other public danger which clearly constitutes a threat to the existence of the Federation, shall be considered.
Among the many reasons adduced by the President as grounding the proclamation, only one seem to align with one of the grounds in section 305(3) of the 1999 Constitution. The reason has to do with available security reports of disturbing incidents of vandalization of pipelines by some militants without the Governor taking any action to curtail them. This postulation by Mr. President coupled with his declaration that the situation required extraordinary measures to restore good governance, peace, order and security squarely situates the ground relied on by him on section 305 (3) (c) of the 1999 Constitution. The rest of the reasons are mainly political issues though grave but cannot ground a proclamation of a state of emergency.
The central issue here is, whether available security reports of disturbing incidents of vandalization of pipelines by some militants without the Governor taking any action to curtail them, and which occurred just within 24 hours prior to the proclamation requires extraordinary measures to restore peace and security. The test for determining a situation of actual breakdown of public order and public safety is an objective test not subjective test. Therefore, it will necessarily agitate the mind whether an isolated incident or one-off incident of vandalism constitute actual breakdown of public order and public safety to the extent that requires extraordinary measures? Yes, while an isolated incident of pipeline vandalism has the potential to threaten or jeopardize peace and security, it would not require extraordinary measures to counteract and to the point of suspending two important arms of government at the state level.
Although, in my view, the President’s reliance on the ground of 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 may be faulted or indeed flawed, the postulation regarding available security reports of disturbing incidents of vandalization of pipelines by some militants without the Governor taking any action to curtail them could be accommodated under the grounds stipulated in section 305 (3) (d)(e)(f) that is, 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; occurrence or imminent danger affecting the community or a section of the community in the Federation; and any other public danger which clearly constitutes a threat to the existence of the Federation. The President would not be justified to declare state of emergency based on an isolated and perhaps one-off incident of pipeline vandalism that occurred just within 24 hours prior to making the declaration predicated on the ground of 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, without a request from the Governor supported by two-thirds majority of the House of Assembly. Request from the Governor can indeed be dispensed but only if the Governor has failed within a reasonable time to make a request to the President to issue a proclamation. Though, the Constitution is silent on what amounts to reasonable time, it would be safe to say that a one day delay as in this case cannot amount to a failure within reasonable time to make a request to the President to issue a proclamation. Practically though, the love-lost relationship between the Governor and the House of Assembly would have made it impracticable or impossible for the Governor to obtain the resolution of two-third majority of the House of Assembly to enable him make a request to the President to issue a proclamation.
Though, Mr. President did not specifically mention any of the other grounds namely, (1) 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, (2) occurrence or imminent danger affecting the community or a section of the community in the Federation, (3) any other public danger which clearly constitutes a threat to the existence of the Federation; the proclamation could still be sustained since the facts relied upon typically aligns with those grounds. Moreover, blowing up or vandalism of pipelines amounts to sabotage and terrorism. Since the President has power under section 75 of the Terrorism (Prevention and Prohibition) Act, 2022 to declare a state of emergency as part of anti-terrorism measures, though he did not expressly rely on this provision, the proclamation of a state of emergency in Rivers State predicated on pipeline vandalism, being an act of terrorism, is justifiable. This view is supported by the trite principle of law that failure to state the rule under which a relief is sought is not fatal if the relief is cognizable under the law. See Falobi v. Falobi (1976) LPELR-1236 (SC).
ii. Suspension of elected Governor, Deputy Governor and members of the House of Assembly, and the appointment of an unelected person as Sole Administrator akin to unconstitutional take-over of the government of Rivers State
This is an aspect of the proclamation that has attracted the most criticism. The arguments preponderate on absence of provision in the Constitution empowering the President to suspend or sack a Governor, Deputy Governor, and members of the House of Assembly.
Speaking on the issue, J.S. Okutepa, SAN stated: “There is no doubt that there is power in the president of the Federal Republic of Nigeria to declare as state of emergency in any parts of Nigeria. But there is no power given to the president in the constitution to suspend elected governor or the Deputy Governor or even the members of parliament.” He argued that the governor, the deputy governor of Rivers State and members of the House of Assembly are not employees of the President. He also posited that the appointment of a Sole Administrator who did not stand any election in Rivers State, and was never elected by the people of Rivers State democratically as required by the Nigerian Constitution, was contrary to the provisions of the Constitution that stipulate that no parts of Nigeria shall be governed otherwise than by democratic means.
There is no controversy that the tenure of office of a Governor is for a fixed and certain period of four years unless he ceases to hold office in accordance with the provisions of the 1999 Constitution when any of the situations provided therein arises. Those situations are death, resignation, completion of tenure, impeachment, and permanent incapacity. These situations are applicable in ordinary and normal circumstances. It therefore cannot form the basis of generalization that the President does not have power to suspend a Governor.
The President, can, in extraordinary circumstances suspend a Governor. Whether the President should suspend a Governor or not upon proclaiming a state of emergency will depend on the circumstances of each case. Generally, it is not the intention of the framers of the Constitution that a Governor of a State should be suspended when the President proclaims a state of emergency as evident in the assignment of a role to the Governor to make request to the President in any of the following circumstances. This is because the framers of the Constitution assumed that a Governor who swore to the oath of office of Governor of a State enshrined in the seventh schedule to the 1999 Constitution to wit:
(a). To discharge his duties to the best of his ability, faithfully and in accordance with the Constitution of the Federal Republic of Nigeria and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of the Federal Republic of Nigeria;
(b). To strive to preserve the Fundamental Objectives and Directive Principles of State Policy contained in the Constitution of the Federal Republic of Nigeria;
(c). To exercise the authority vested vested in him as Governor so as not to impede or prejudice the authority lawfully vested in the President of the Federal Republic of Nigeria and so as not to endanger the continuance of the Federal Government in Nigeria;
(d). Not to allow his personal interest to influence his official conduct or his official decisions;
(e). To the best of his ability preserve, protect and defend the Constitution of the Federal Republic of Nigeria;
(f). To abide by the code of Conduct contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria;
(g). To, in all circumstances, do right to all manner of people, according to law, without fear or favour, affection or ill-will;
(h). Not to directly or indirectly communicate or reveal to any person any matter which shall be brought under his consideration or shall become known to him as Governor, except as may be required for the due discharge of his duties as Governor; and
(i). To devote himself to the service and well-being of the people of Nigeria; would be above aboard and actually at the forefront of maintaining public order and public safety.
Instructively, section 5(2) of the 1999 Constitution vests the executive powers of a State on the Governor with a caveat in subsection (3) that the executive powers so vested in the Governor shall not be exercised as to:
(a) impede or prejudice the exercise of the executive powers of the Federation;
(b) endanger any asset or investment of the Government of the Federation in that State; or
(c) endanger the continuance of a Federal Government in Nigeria.
Also, section 1(2) of the 1999 Constitution provides to the effect that the Federal Republic of Nigeria shall not be governed, except in accordance with the provisions of this Constitution. It follows that where through the omission or commission of the Governor, the conditions or grounds for proclamation of a state of emergency arise, it would be counter-productive and unreasonable not to suspend the Governor who had used the colour of his office to occasion actual breakdown of public order and public safety in the State or created a situation of clear and present danger of an actual breakdown of public order and public safety in the State.
Therefore, when a state of emergency is declared without the fault of the Governor, it would be unreasonable to suspend the Governor but when the ground necessitating the declaration of a state of emergency was caused by the Governor, it would be counter-productive and unreasonable not to suspend the Governor if to do so constitute the extraordinary measure necessary to restore peace and security or to avert danger to the peace and security of the state of the Federation.
In the case of Rivers State, it was apparent that the Governor shifted from the primary duty of ensuring preservation of security and welfare of the people of the state to endangering the security and welfare of the people of the state by inciting violence. The Governor in a viral video prior to the declaration stated thus:- “So let me thank everyone, more especially the youths; be strong. Don’t be perturbed; Be strong. I assure you at the right time, you will get instruction.” The President in his proclamation address among other reasons categorically alluded to available security reports of disturbing incidents of vandalization of pipelines by some militants without the Governor taking any action to curtail them. The statement carries the connotation of complicity or aiding and abetting a breakdown of public order and public safety. Thus, when the Governor himself is the oppressor, the trouble-maker, the precipitator of the crisis, the President would be justified under the doctrine of necessity to suspend the Governor. Therefore, the hullabaloo about the suspension of the Governor of Rivers State as being unconstitutional is a non-starter. The doctrine of necessity is part of our laws. Very recently, in the case of Rivers State House of Assembly & Anor. v. The Government of Rivers State & 9 Ors. ((2025) LPELR-80539 (SC), the Supreme Court explaining the doctrine of necessity stated thus:-
The doctrine of necessity cannot be invoked to justify the continued existence of a deliberately contrived illegal or unconstitutional status quo. It cannot be invoked to justify and protect the illegal actions of the 8th Respondent [The Governor of Rivers State, Sir Siminalayi Fubara] and his despotic rule of Rivers State without a House of Assembly. It applies to genuine situations that were not contemplated in the provisions of the Constitution or any law, which situations require the taking of some legitimate extra constitutional or extra legal actions to protect public interest. In Nyesom v. Peterside (2016) NWLR (Pt 1492) 71 143 paras CD this court held that “the case at hand, no doubt calls for applicability, in the light of very serious security challenges not only in Rivers but elsewhere in the country. To my mind the doctrine will operate in circumstances where the Constitution itself cannot measure up to a situation which has arisen and where an organ set up under the Constitution is bereft of its power to function. The lower court rightly held that there was need to issue practice direction to tribunal to enable it function without hindrance in an environment with minimum guarantee of security of lives.”
The fact that there is no express provision in the Constitution for the suspension of a Governor does not make it unconstitutional if circumstances exists that make the suspension amenable under the doctrine of necessity. In view of the complicity of the Governor of Rivers State as stated by the President in his proclamation address regarding the situations leading to the breakdown of public order and public safety in Rivers State, the suspension of the Governor was lawful and legal on the basis of the doctrine of necessity.
iii. Vesting of power to make regulations jointly on the Sole Administrator, the Federal Executive Council and the President.
While the first and second criticisms failed, this ground of criticism is supportable. The President acted in excess of his powers by including in the proclamation statement which conferred law-making power kind of on the Sole Administrator with the approval of the Federal Executive Council and final promulgation on the President.
Section 11 (4) of the 1999 Constitution provided emphatically as follows:-
“At any time when any House of Assembly of a State is unable to perform its functions by reason of the situation prevailing in that State, the National Assembly may make such laws for the peace, order and good government of that State with respect to matters on which a House of Assembly may make laws as may appear to the National Assembly to be necessary or expedient until such time as the House of Assembly is able to resume its functions; and any such laws enacted by the National Assembly pursuant to this section shall have effect as if they were laws enacted by the House of Assembly of the State.”
It is glaring that the only authority to make laws for Rivers State during the period of the state of emergency is the National Assembly. The President therefore was ill-advised to have conferred the law-making functions in respect of Rivers State jointly on the Sole Administrator, the Federal Executive Council and himself. That aspect of the proclamation was unconstitutional.
CONCLUSION
This work concludes that the state of emergency in Rivers State proclaimed by the President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria, His Excellency, Bola Ahmed Tinubu, GCFR on Tuesday, 18th March, 2025 was validly made save the vesting of power to make regulations jointly on the Sole Administrator, the Federal Executive Council and the President. The vesting of power to make regulations jointly on the Sole Administrator, the Federal Executive Council and the President was a constitutional overstep which thankfully, the National Assembly amended during its votes to approve the proclamation.
