Nigeria's President Bola Tinubu recently declared a state of emergency in Rivers State, in the country's south-south region. He also suspended the state governor and dissolved the state's House of Assembly. This declaration has led to debates in Nigeria about the legality of the decision. Public law scholar Abiodun Odusote answers some questions about the constitutionality of the declaration.
What does Nigeria's constitution say about declaring a state of emergency?
Section 305 (1) vests the president with the power to declare a state of emergency in any part of the federation. It has to be done through a notice in the government gazette, copies of which must be sent immediately to the president of the Senate and the speaker of the House of Representatives. They are required to convene a meeting of the two chambers to consider the declaration. They then decide whether to pass a resolution supported by a two-thirds majority of the two chambers approving the emergency proclamation.
Emergency situations can include times when:
- the federation is at war
- the federation is in imminent danger of invasion or involvement in a state of war
- there is a breakdown of public order and public safety to such an 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
- there is imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community
- there is any other public danger which clearly constitutes a threat to the existence of the federation
- the president receives a request from the governor of a state to do so in accordance with the provisions of the constitution.
Was it justified this time?
Yes.
I think the crisis between the Rivers State governor and the House of Assembly had reached a breaking point. Neither the legislative arm nor the executive arm had been able to function effectively for the past two years.
The Supreme Court held in Rivers State House of Assembly versus The Government of Rivers State & Others that there had not been democratic governance in Rivers State for about two years. It also noted that:
- the budget had not been passed for about two years
- the legislative chambers had been bombed
- the legislative arm had not been able to perform its duties.
Additional factors contributing to the collapse of the area included:
- the governor and the deputy governor being served with a list of misconduct by the state's House of Assembly preparatory to impeaching them
- militant groups threatening violence
- blowing up of oil pipelines, which would threaten to affect the country' economy, given the large part the industry plays.
If that was not an actual breakdown of public order and public safety, there was at least a clear and present danger of a breakdown.
No reasonable government would wait any longer to take constitutional action.
Did the president follow constitutional procedures?
In a state of emergency, the president is entitled to suspend normal constitutional procedure to respond to a crisis. The president, in exercising his powers to declare a state of emergency, suspended both the Rivers State governor and the legislative arm of Rivers State.
The constitution is silent on how the president can exercise his powers and whether he can suspend elected state officials. But there has been a precedent. President Olusegun Obasanjo in 2004 declared a state of emergency in Plateau State, north central Nigeria, and removed the governor.
There has not been a definitive judicial pronouncement on this issue. It can be subjected to judicial review and challenged in court. That is the beauty of democracy.
The other part of the process that's raised questions is whether the voice vote of the National Assembly satisfies the constitutional requirement of a resolution supported by a two-thirds majority of the National Assembly.
This points to a fundamental flaw in the emergency declaration process. The constitutional requirements of two-thirds approval of the emergency proclamation suggests that a formal recording of votes is required. How can voice votes count to satisfy the requirement? A formal recorded vote is likely necessary to ensure transparency, accountability and the integrity of the process. The implication is that the proclamation of the emergency process is incomplete as it appears the National Assembly has not effectively validated the emergency proclamation by the president as required by the constitution.
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What are the powers of the administrator appointed by the president?
The administrator occupies the office for a short time. His responsibilities are clear: to protect lives and properties, maintain peace and public order and prevent a breakdown of law and order in the state. Also, manage the resources of the state. He is required to work with other government agencies to achieve his goals of restoration of peace, law and order.
He can work with the National Assembly to make regulations that may assist him in the performance of his duties. The administrator derives his powers from the executive authority vested in the president, and has a delegated authority from the president to respond to the emergency.
Abiodun Odusote, Associate professor, University of Lagos
