By Desmond T. Orisewezie Esq.
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1. INTRODUCTION
This opinion addresses whether the President can unilaterally declare a state of emergency and suspend elected state officials—including the Governor, Deputy Governor, the Executive Council, and the Legislature vide Section 305 of the 1999 Constitution (as amended) and if the process aligns with extant statutory provisions.
2. CONSTITUTIONAL FRAMEWORK AND LIMITATIONS
Section 305 of the 1999 Constitution empowers the President to issue a proclamation of a state of emergency either nationally or in any part of the country experiencing an imminent or actual breakdown of law, order, and public safety. Notwithstanding this authority, the constitutional design does not render the President’s power absolute.
The Constitution expressly provides, under Section 305(4), that a request for an emergency declaration must be initiated by the Governor, supported by a resolution from the State House of Assembly. This provision reflects the drafters’ intent to preserve democratic governance even in times of crisis, ensuring that the decision to invoke emergency powers is subject to local political oversight. Only when such a request is not submitted within a reasonable timeframe may the President unilaterally declare a state of emergency.
Furthermore, the Constitution does not vest the President with the power to suspend an elected Governor, Deputy, the Executive Council, or the Legislature. Historical practice, as evidenced during the Goodluck Jonathan administration in 2013—where emergency declarations in Adamawa, Yobe, and Borno were accompanied by enhanced security measures rather than the removal of state officials—underscores this limitation. Moreover, the Constitution provides that the National Assembly may assume the functions of a State House of Assembly in prolonged crises situation, thereby offering an alternative mechanism for addressing state-level governance issues.
3. PRINCIPLES OF PROPORTIONALITY AND PUBLIC POLICY.
Government actions must adhere to the principles of fairness and proportionality. The conversion of a civilian-administered state to military rule,as indicated in the President’s emergency declaration, appears disproportionate in light of the circumstances outlined in his address. The President’s rationale—that the unilateral declaration was necessitated by the Governor’s failure to request an emergency as well as other unmanageable crises in the state raises several critical questions:
i. Is the crisis in Rivers State demonstrably more severe than those in other parts of the federation, some of which have experienced even more dire security conditions that received international recognition?
ii. Was it reasonable to expect the Governor to address incidents such as oil pipeline vandalism within 24 hours without a proper security briefing or consultation with his Executive Council before escalating the matter to the
President?
iii. There were two major political actors in the Rivers State crises, would the proposed six-month suspension of one the actors from office, while leaving the other major political actor to consolidate power in state, satisfy principles of fairness and proportionality?
iv. Is there any constitutional mandate specifying that an emergency must last for six months, particularly when swift and targeted interventions might suffice?
v. Does responsibility for the security of oil facilities reside with the state or federal government, and can a failure on the part of the Federal Government be justifiably imputed to the Governor?
vi. Is there any security report that directly links the actions of oil vandals (which could be likened to acts of terrorism) to the Governor’s performance or inaction? If any, it should be made public for transparency purposes.
vii. Have the Federal Minister who may have incited ethnic tension in his home state been formally rebuked and cautioned by the President to mitigate the alleged crisis?
viii. Did the Governor not write the State House of Assembly to represent the 2025 budget in compliance with the order of the Supreme Court?
ix. Does this emergency declaration not set a dangerous precedent whereby any federal-backed party could mastermind the suspension of a governor arbitrarily by fermenting crises in the state?
x. Given that only a limited number of local government areas (LGAs) in Rivers State are affected, why did the President not limit the scope of application to the affected areas?
xi. Should the crisis in only one or two out of twenty-three LGAs warrant the removal of the Governor when the majority of the state remains peaceful?
4. STATUTORY CONSIDERATIONS
Section 75 of the Terrorism Prevention Act authorizes the President, subject to the provisions of the Constitution, to take measures he deems necessary and justifiable during a state of emergency. However, the exercise of this power must remain within the bounds of constitutional discretion and proportionality.
In light of the issues outlined above, it is incumbent upon the President to either limit the duration of the emergency declaration to a period strictly necessary to address the crisis or to not interfere with the National Assembly exercise of its constitutional prerogative to approve or withhold a two-thirds majority vote in support of the declaration.
5. ANY POSSIBILITY OF LEGAL REDRESS FOR THE STATE OFFICIALS?
Sections 251(1)(q) and (r) of the 1999 Constitution, together with Section 76 of the Terrorism Prevention Act, confer jurisdiction on the Federal High Court to
adjudicate matters arising from emergency declarations and Executive Actions of the Federal Government.
Nonetheless, established precedents in Williams v. Majekodunmi (1962) LPELR-25044(SC) and Adegbenro v. AG of the Federation & Ors (1962) LPELR-25118(SC)—indicate that the judiciary has historically been reluctant to interfere with emergency declarations. The Supreme Court has opined that, “_Once that state of emergency is declared, it would seem that according to the Constitution, it is the duty of Government to look after the peace and security of the State, and it will require a very strong case against it for the Court to act.”_
6. CONCLUSION
The President must continue to act in a manner that upholds the constitutional mandate for democratic continuity and fair governance. Therefore, it is
recommended that:
i. The President considers alternative measures—such as heightened security protocols that do not involve the suspension of duly elected state officials.
ii. limits the duration of the emergency declaration to a period commensurate with the exigencies of the situation.
iii. The National Assembly should exercise its constitutional right to withhold support for an irregular emergency declaration if it so determines.
iv. The President actions should always reinforce public confidence in the soundness and legality of his decision-making process.
Email: desmondorisewezie@nigerianbar.ng
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Authored by Ben Ijeoma Adigwe Esq., ACIarb (UK), LL.M, Dip. in Artificial Intelligence, Director at the Delta State Ministry of Justice, Asaba, Nigeria.
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