Introduction
THE political debacle in Rivers State has taken a new twist following the declaration of a state of emergency by the President of the Federal Republic of Nigeria Bola Ahmed Tinubu on 18 March 2025 to stop what the presidency termed as a potential breakdown of law and order.
The political and legal tussle in Rivers State started somewhat around October 2023 due to a perceived betrayal and political apostasy committed by the Governor of River State -Sir Siminalayi Fubara against his political godfather Cheif Nyesom Wike (current FCT Minister and former governor of River State) who happens to be at the center of the storms.
The thrust of this intervention is to look at the declaration of a State of Emergency by the Presidency and make a case about the constitutionality of such a declaration by President Bola Ahmed Tinubu whether he can validly remove a sitting elected governor of a state and the legislature of a state on the pretext of perceived breakdown of law and order in River State.
The Legal Background for Declaration of State of Emergency
The Constitution of the Federal Republic of Nigeria, 1999 as amended provided for the procedure of declaration of a state of emergency by the president of the country when there is an actual or perceived breakdown of law and order in a state which could spiral to the whole country therefore, the president as the commander-in-chief as the chief executive and security officer of the country can declare a state of emergency in the state.
Section 305 of the Constitution is the ground-norm and authority for the declaration of a State of emergency in Nigeria constitutional democracy.
It provides as follows:
305. Procedure for the proclamation of a state of emergency
(1) Subject to the provisions of this Constitution, the President may by instrument published in the official Gazette of the Government of the Federation issue a proclamation of a state of emergency in the Federation or any part thereof.
(2) The President shall immediately after the publication, transmit copies of the official Gazette of the Government of the Federation containing the proclamation, including the details of the emergency, to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the proclamation.
(3) The President shall have power to issue a proclamation of a state of emergency only 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 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;
(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 that clearly constitutes a threat to the existence of the Federation; or
(g) the President receives a request to do so under the provisions of subsection (4) of this section.
(4) The Governor of a State may, with the sanction of a resolution supported by a two-thirds majority of the House of Assembly, request the President to issue a proclamation of a state of emergency in the State when there is in existence within the State any of the situations specified in subsection (3) (c), (d) and (e) of this section and such situation does not extend beyond the boundaries of the State.
(5) The President shall not issue a proclamation of a state of
emergency in any case to which the provisions of subsection (4)
of this section apply unless the Governor of the State fails within a reasonable time to make a request to the President to issue such proclamation.
(6) A proclamation issued by the President under this section shall cease to have effect –
(a) if it is revoked by the President by instrument published in the official Gazette of the Government of the Federation;
(b) if it affects the Federation or any part thereof and within two
days when the National Assembly is in session, or within ten days when the National Assembly is not in session, after its publication, there is no resolution supported by a two-thirds majority of all the members of each House of the National Assembly approving the proclamation;
(c) after a period of six months has elapsed since it has been in
force: Provided that the National Assembly may, before the expiration of the period of six months aforesaid, extend the period for the proclamation of the state of emergency to remain in force from time to time for a further period of six months by resolution passed in like manner; or(d) at any time after the approval referred to in paragraph (b) or the extension referred to in paragraph (c) of this subsection, when each House of the National Assembly revokes the proclamation by a simple majority of all the members of each House.
Having reproduced the above section of the Constitution, It is trite to note that the procedure of declaration is not automatic under section 305 (6)(a)(b)(c) it has to be approved by the National Assembly of the Federal Republic of Nigeria who has to pass a resolution either approving or disapproving the proclamation made by the president about the State of emergency.
The Legal Requisitions and drawbacks of the Proclamation.
My take on the Proclamation/declaration of the State of Emergency is that the proclamation is unconstitutional as it runs afoul of the law particularly section 1, 11, 188 and 305, of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
The president stated in his speech as follows:
“ 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 provision 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.”
Now, the question to ask the presidency is, does the action of the governor not informing or requesting the president to declare a state of emergency without a detailed breach of security warrant the president to make such a declaration justifiable within the context of the happening in River State?
The answer is in the negative. The president was wrong and incorrect to have insisted that the governor must make the request even when the situation in the state was not as tense as the president had painted the picture to be in his speech. The situation in River State is not as tense as that of Zamfara State or Borno State where insurgents and bandits have taken over part of the State even going as far as imposing taxes and tributes on villagers to survive. It is safe to argue that the president has only succeeded in removing the governor through the back door by proclaiming a state of emergency on the pretext of a phony security report and a perceived breakdown of law and order. The selective approach by the president in declaring a State of emergency in River State shows that the action of the presidency is more political in nature meant to serve his political interest as it were. How the president blame the governor of River State without talking about the action of his politically appointed Mr Nyesom Wike who is one of the parties in these disputes or the members of the state legislature who refuse to allow the governor to preside the budget in line with the Supreme Court ruling.
Suspension of the Governor and Legislature
The president in a rather brazen aberration and lack of respect for the will of the Rivers State people and the Constitution equally stated in his speech as follows:
“ 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.”
It is trite to state that the proclamation of a state of emergency does not empower the president to suspend the governor of the River State or the state legislature as it were. This is because Section 305 does not provide for the suspension of an elected governor or a valid state legislature therefore, the suspension of the Governor of River State is wrong and unconstitutional.
The president has committed a great constitutional sacrilege and an assault on the spirit of the Nigerian system. The president has no such power to suspend the governor of a state because the only way a governor can be removed from office before the expiration of his terms of office is by impeachment. The action of the president to remove or suspend an elected governor is an aberration that should not be allowed to stay. The governor is not appointed by the president or the Federal Governor therefore he cannot be removed or suspended by the president through the back door as the Bola Ahmed Tinubu is doing. Nigeria is a constitutional federal democracy. Therefore, the president must base his action on the Constitution and not on his will. The president cannot usurp the people of the River State to suspend the governor is a clear violation of the law.
This position has been given a judicial nod in the following cases where the Supreme Court has consistently ruled in the case AG Federation vs. AG Lagos State (2013) LPELR-20974 and AG Plateau State vs. AG Federation 2006 while invalidating the removal of elected officials during the declaration of a State of Emergency in Plateau State that “Under no circumstances shall the democratic structures be suspended or dissolved even in a State of Emergency.
Appointment of an Administrator
The appointment of the president is also wrong and contrary to the law.
The president posited thus:
“The Administrator will not make any new laws. He will, however, be free to formulate regulations as may be found necessary to do his job, but such regulations will need to be considered and approved by the Federal Executive Council and promulgated by the President for the state”.
The President is out of line to have also appointed an administrator because the constitution does not envisage the appointment of any administrator to manage the affairs of a part of the federating unit. The appointment is contrary to section 1(2) of the Constitution. It means that the administrator will not be accountable to the people of River State but the President who appointed him to manage the affairs of that State.
Conclusion
It is submitted that the 10th National Assembly of the Federal Republic of Nigeria should reject the declaration made by the President. The proclamation should not be approved rather it should be rejected immediately as if offends the spirit and letter of the Consitution of the Federal Republic of Nigeria, 1999.
The president should also have the political spine and will to also suspend his ally Mr Nyesom Wike who is one of the arrowhead of this political debacle in River State.
God Bless Nigeria.
Mudasiru Lawal Esq is a human rights lawyer practicing in the United Kingdom. He is the Principal Counsel at FritzAbbey Solicitors and Advocates and Convener Legal Defence Against Injustice Initiative, Lagos. mudasirulawal0204@yahoo.co.uk
TELS: +447904342694 and +2348034957788
Caveat: Note that this information is provided for general enlightenment purposes and is not intended to be any form of legal advice
Dated: 19 March 2025
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