The propriety of the decision of the President to suspend democratically elected public officers in Rivers State, including the Governor and members of the Rivers State House of Assembly is still a major issue begging for resolution. Penultimate week, the South-West Region of the Christian Lawyers Fellowship organized a seminar in Abeokuta wherein the topic was well discussed and digested. Permit me to share the text of my presentation at the said event.
PROTOCOLS
The President of the Christian Lawyers Fellowship of Nigeria, the leadership of the South-West Region, the Organizers of the 2025 Regional Conference, my colleagues and brethren, ladies and gentlemen. I greet you all in the name of our Lord and Saviour Jesus Christ.
A. INTRODUCTION:
On Tuesday, the 18th day of March, 2025 A. D., the President and Commander-in-Chief of the Armed Forces of Nigeria, President Bola Ahmed Tinubu made a very strange nationwide broadcast: he issued a Proclamation of a State of Emergency in Rivers State. In making the Proclamation, he appealed to Section 305 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) (“the Constitution”) as the constitutional bedrock for such far-reaching presidential Proclamation. In his own words:
“…In the circumstance, having soberly reflected on and evaluated the political situation in Rivers State and the Governor and Deputy Governor of Rivers State having failed to make a request to me as President to issue this proclamation as required by section 305(5) of the 1999 Constitution as amended, it has become inevitably compelling for me to invoke the provisions of section 305 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, to declare a state of emergency in Rivers State with effect from today, 18th March, 2025 and I so do.
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 are hereby suspended for an initial period of six months.
In the meantime, I hereby nominate Vice-Admiral Ibokette Ibas (Rtd) as Administrator to take charge of the affairs of the State in the interest of the good people of Rivers State. For the avoidance of doubt, this declaration does not affect the judicial arm of Rivers State, which shall continue to function in accordance with their constitutional mandate…”
The presidential Proclamation immediately disturbed the communal dish of democracy, nay federalism, separation of powers and balance of political powers between the federal and state levels of government; stirring up no end of discussion regarding the constitutionality or otherwise of the action of the President among legal and political experts, analysts, and opinion molders. The Attorney-General of the Federation and Minister of Justice, for instance, placed his justification of the declaration on the tripod of the decision/orders of the Supreme Court of Nigeria, the inability of the Rivers State’s political actors to bring about stability and the rising state of insecurity in the state. These factors were the main plank of the reasons of Mr. President himself.
ARE THE FACTORS PECULIAR TO RIVERS STATE?
The questions to ask are many. The rationale for the declaration presents itself for questioning, because some have queried these reasons while some others posit that they are not peculiar to Rivers State. If we talk of insecurity in Nigeria, then the North East, North West and North Central should all be declared as emergency zones. If we talk of instability, Osun State has had a running battle with democracy, with the crisis of local government rocking the polity beyond tolerable control and even leading to loss of lives. Even at the time of the President’s declaration, Lagos State was facing its own crisis in the House of Assembly where two Speakers emerged for the parliament, in the President’s home state. The question then would be why single out Rivers State for the declaration of a state of emergency amongst the States affected?
THE FEATURE OF DECLARATION OF STATE OF EMERGENCY
The declaration of the State of Emergency as stated by Mr. President is poly-dimensional in terms of its implications, perspectives, and interplay of factors that are involved. For instance, we can look at it from the constitutional viewpoint especially as the President purported to anchor the declaration on Section 305; we can look at it politically given the various political interventions that went on in an attempt to broker peace between the warring power parties, namely the Hon. Minister of the F.C.T., Mr. Nyesom Ezenwo Wike and the suspended Executive Governor of Rivers State, Governor Siminalayi Fubara, if our goal in this short discourse is to try to unpack uncommon action of the President vis-à-vis its constitutionality; explore the far-reaching ripple effects on our democracy. Does the President’s power under Section 305 of the Constitution extend to the power to remove or suspend an elected Governor from office, under the cloak of declaration of a state of emergency, by a process otherwise than is provided under the Constitution? Let us attempt a critical dissection of the law in this regard.
THE CONSTITUTIONAL FRAMEWORK OF THE CONCEPT OF STATE OF EMERGENCY UNDER SECTION 305 OF THE CONSTITUTION
Nature of State of Emergency
The Constitution does not strictly define the term “State of Emergency.” However, by Section 305 (3)(a) – (g) of the Constitution, situations in which the President shall have power to issue a Proclamation of a State of Emergency, provide a window of insight as to the nature of a State of Emergency. Thus, a State of Emergency is said to occur where the President issues a Proclamation to that effect only when:
The Federation is at war;
The Federation is in imminent danger of invasion or involvement in a state of war;
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;
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;
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;
There is any other public danger which clearly constitutes a threat to the existence of the Federation; or
The President receives a request to do so in accordance with the provisions of subsection (4) of Section 305 of the Constitution.
THE POWERS OF THE PRESIDENT TO PROCLAIM A STATE OF EMERGENCY UNDER THE CONSTITUTION
Existence of a Valid Constitutional Ground
The President can only exercise the power vested in him by the Constitution to proclaim a State of Emergency if one or more grounds or specific conditions listed in Section 305(3) of the Constitution exist (s) such as: war or imminent danger of war, breakdown of public order or safety, imminent danger or actual breakdown of law and order, natural disaster or calamity, occurrence or imminent danger of any other public danger or when a Governor, with a resolution of two-thirds of the House of Assembly of a State, requests that the President makes such proclamation. Were these factors present in Rivers State at the time, especially with the oil companies declaring capacity to contain the situation?
Issuance of Gazette of Proclamation
Upon clear existence and identification of a valid constitutional ground for declaration of State of Emergency, the President may issue a Proclamation of a State of Emergency. The proclamation must be published in the Official Gazette of the Government of the Federation. The proper order for compliance with this section is for the President to ensure that as of the time of issuing the Proclamation, the publication is already executed in the Official Gazette and placed before the National Assembly. In this case, there was no transparent method of ascertaining the true state of events between when the President issued the Proclamation, the time of its publication in the Official Gazette and the notification to the National Assembly.
Notification of the National Assembly
As soon as possible after issuing the Proclamation, the President shall transmit the legal instrument of the proclamation to the President of the Senate, and the Speaker of the House of Representatives. Enough information was not circulated to determine whether there was compliance with this provision.
Approval by the National Assembly
Upon receipt of the instrument of the Proclamation, the National Assembly shall sit to consider the Proclamation for possible approval, within two days if it is in session or ten days, if it is not in session. Failure to reach a resolution supported by two-thirds majority of all the members of each House of the National Assembly approving the proclamation within the specified time will cause the proclamation to cease.
In the case of Rivers State, it is difficult to agree with the procedure adopted by the National Assembly to determine its approval which was by voice vote of the majority. No one can reasonably ascertain what amounts to two-thirds majority by voice vote, as it is extremely difficult, if not totally impossible, to count voices according to their volume.
