STATE OF EMERGENCY DECLARATION IN RIVERS STATE: MATTERS ARISING

By Mustapha Babalola Toheeb.

Yesterday, President Bola Ahmed Tinubu declared a state of emergency in Rivers State. President Tinubu made the proclamation during a nationwide broadcast on Tuesday, suspending Governor Siminalayi Fubara, his deputy Ngozi Odu, and all the members of the House of Assembly for six months. The President nominated Vice Admiral Ibokette Ibas (rtd) as administrator to take charge of the affairs of the state for the first six months.

Historically, Nigeria has witnessed several state of emergency declarations. In 1962, Prime Minister Sir Abubakar Tafawa Balewa declared a state of emergency in the Western Region under the 1960 Constitution, resulting in the suspension and removal of regional officials. Later, during President Olusegun Obasanjo’s tenure, similar declarations in Ekiti and Plateau States led to the suspension of state government functionaries.

In contrast, President Goodluck Jonathan’s 2013 declaration in Borno, Yobe, and Adamawa States allowed incumbent governors and officials to remain in office, marking a notable departure from earlier practices.

For starters, the Chambers 20th Century Dictionary defines a state of emergency as the suspension of normal law and order procedures and the introduction of strict controls over the population, usually involving the military, so that a crisis, revolution, etc., can be contained.
The 1999 Nigerian Constitution does not explicitly define a “state of emergency.” L

However, Section 45(3) indicates that it refers to any period during which a presidential proclamation of a state of emergency is in effect, as empowered by Section 305. While Section 305 outlines the procedures and conditions for such a declaration, it does not provide a specific definition. To understand the term within the constitutional context, one can refer to Section 45(2), which implies that during a state of emergency, certain fundamental rights guaranteed under Chapter IV of the Constitution may be derogated from or limited.

So, what are the conditions that must be considered before a declaration of a state of emergency? Section 305(3) of the Constitution clearly provides that a proclamation of a state of emergency may be made by the President when:

(a) the Federation is at war;

(b) the Federation is in imminent danger of invasion or involvement in a state of war;

(c) there is an actual breakdown of public order and public safety in the Federation or any part thereof to such an extent as to require extraordinary measures to restore peace and security;

(d) 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) 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) there is any other public danger which clearly constitutes a threat to the existence of the Federation; or

(g) the President receives a request to do so in accordance with the provisions of subsection (4) of this section.

Section 305 of the Nigerian Constitution outlines the procedure for declaring a state of emergency. The President may issue a proclamation through an instrument published in the official Gazette. Following publication, the President must immediately transmit copies to the President of the Senate and the Speaker of the House of Representatives, who are to convene their respective houses to consider and decide on approving the proclamation. Additionally, a state governor, with a two-thirds majority resolution from the state’s House of Assembly, can request the President to declare a state of emergency if the situations specified in Section 305(3)(c), (d), and (e) are confined within the state’s boundaries. If a governor fails or refuses to make such a request within a reasonable time, the President is empowered to issue the proclamation unilaterally. However, the Constitution does not define what constitutes a “reasonable time,” leaving it to the President’s discretion.

In examining whether a declaration of a state of emergency necessitates the removal of state government institutions or officials, it is evident that the answer is negative. A thorough analysis of the 1999 Nigerian Constitution, particularly Section 11, reveals no provisions, explicit or implicit, that allow such actions.

Thus, the proclamation of a state of emergency does not necessarily paralyze the organs of that state, i.e., it does not prevent the State House of Assembly or the governor from continuing to carry out their normal duties.

According to Section 11(2): “(2) Nothing in this section shall preclude a House of Assembly from making laws with respect to the matters referred to in this section, including the provision for the maintenance and securing of such supplies and services as may be designated by the National Assembly as essential supplies and services.”

However, the National Assembly may take over the functions of the State House of Assembly during a state of emergency “at any time when a State House of Assembly of a State is unable to perform its functions by reason of the situation prevailing in that State until such time as that State House of Assembly is able to resume its function.” It must be noted that this itself is a temporary measure.

As constitutional lawyer Professor Itse Sagay, SAN, has observed, the essence of Section 11 of the Constitution indicates that a state of emergency is intended to be a collaborative effort between federal and state governments, with state organs such as governors, Houses of Assembly, and judiciaries continuing to function.

Notably, Section 305 of the Constitution begins with the phrase “subject to the provisions of this Constitution,” implying that any declaration of a state of emergency must align with constitutional provisions. The Constitution explicitly outlines the procedures and grounds for the removal from office of governors, deputy governors, speakers, and members of state Houses of Assembly; however, it does not provide for their removal solely based on the declaration of a state of emergency, nor does it authorize the appointment of administrators under such circumstances.

So, what exactly happens when a state of emergency is proclaimed? One major effect is that efforts are made to ensure peace and orderliness in the affected state, as well as to provide essential supplies and services for the troubled state.

Conclusion  
In light of the recent declaration of a state of emergency in Rivers State by President Bola Ahmed Tinubu, it is imperative to consider the constitutional provisions and historical precedents surrounding such actions. The 1999 Nigerian Constitution, particularly Section 305, outlines the conditions and procedures for declaring a state of emergency. However, it does not explicitly grant the President the authority to suspend or remove elected state officials, such as governors or members of the House of Assembly, during such declarations.

REFERENCES:
The Constitution of the Federal Republic of Nigeria, 1999 as amended.
Itse Sagay, “Nigeria: The Unfinished Federal Project”, being a paper delivered at the 8th JusticeIdigbe Memorial Lecture (University of Benin) 2008, 50.
Chambers 21st Century Dictionary (Revised Edition)Edinburg Chambers, Publishers Ltd 1996, 1375
Godwin Igharo; Dissecting the State of Emergency Declaration available atwww.fmi.gov.ng. of May 21st, 2013. Accessed on 25/6/2024
Bright Oniha “Legality of the presidential declaration of state of emergency in some states in Nigeria and its implications on state government functionaries” Available at www.edojudiciary.gov.ng. Accessed on 19/3/2025

ABOUT THE AUTHOR
Mustapha Toheeb is the founder of Lex Updates Publications. He is interested in advocacy, academic writing, legal writing/history, activism, and a plethora of positivism. To reach him, email: toheebmustapha15@gmail.com or contact/WhatsApp: 08106244073.