By: Hon. Washington Osa Osifo, Ph.D.
The debate around the constitutionality of the Emergency Declaration in Rivers State by the President of the Federal Republic of Nigeria, His excellency, Bola Ahmed Tinubu on March 18 2025 has sadly been beclouded by unbridled sentiments, misplaced emotions and crafted biases in some places, against objective analysis, good reasoning and balanced opinion predicated on exhaustive interpretation of the Constitution of the Federal Republic of Nigeria of 1999 as amended.
It is pertinent to point out to those insisting on pedestrian interpretation of Section 305 of the 1999 Constitution as to limit the scope of the power of the President during emergency declaration to the effect that the President does not possess the powers to suspend an elected Governor and the House of Assembly, that Section 305 as stated below, did not prohibit or forbids the president from exercising his discretionary powers to suspend such political actors who are parry to the crisis that necessitated the emergency declaration.
The President may, through 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. The President shall then 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.
From the provision of section 305 as stated above, it is abundantly clear and many political analysts and constitutional lawyers alike have voiced this clarity, that an executive president is imbued with wide range of discretionary powers that can only be checked by the national legislature or the courts. That an executive President has inherent powers to the effect that he can do anything reasonable and expedient for the sovereignty, security and good governance of his country as commander-in- chief of the armed forces.
If anything is wrong at all, it is the Nigeria’s Federal Constitution that allocated wide range of unspecified scope of discretionary powers to a president, not Bola Ahmed Tinubu that merely exercises the power allowed him by the Constitution as President. Therefore, unless the decision or action of a President including the extent or scope of emergency rule is specifically prohibited by the constitution or disapproved by the National legislature or invalidated by court of a coompetent jurisdiction, the action of the President remains valid, legal and legitimate.
For the avoid of doubts, the President has the constitutional mandate to take such steps as he may deem necessary to stabilize the country or any part thereof, in the overriding interest of the Nation and its people. This mandate is called the “Inherent Powers” theory. It was effectively used by Richard Nixon, Lyndon B. Johnson and other American Presidents during the United States of America war with Vietnam. Under this period, the then Presidents were able to seize/confiscate steel made by most private companies for the prosecution of the war in Vietnam. This must be distinguished from the unpopular “specific grant” theory that posits that the president can only do what is specifically granted expressly in the Constitution.
In contrast, the doctrine of necessity as espoused in Maxibamuto vs Lardner Burke(1969) AC 465, a case bothering on Emergency Rule in the then Rhodesian Republic, allows the President to do whatever is necessary to address an exigency or insurrection or wars or break down or threatened break down of law and order as it was the case in Rivers State.
Therefore, cogent reflection on section 305 of the 1999 Constitution and section 5 thereof, without more, make it abundantly clear that once a state of emergency is declared in any part of the country, the Constitution and the organic laws are suspended in part for a grace of period needed to return to normalcy and resumption of full democratic practice. Accordingly, the President has constitutionally inclined discretion to do anything (including partial and temporal suspension of democratic institutions) for the acceleration of restoration of law and order.
Furthermore, those who argue that a Governor cannot be removed from office other than the ways specified in section 188 of the 1999 Constitution, confuse “suspension” with “removal” from office. They also confuse the fact that once section 305 of the Constitution is invoked, section 188 thereof is impliedly suspended.
What is more? the National Assembly that has the constitutional powers to vet or checkmate the declaration of state of emergency in Rivers State approved it overwhelmingly. So, any person who feels otherwise should explore the justice system in Nigeria to seek redress. As a matter of fact, since there are now pending suits on the issue, constant discussion on the propriety or otherwise of the President’s actions now amounts to judicial prejudice, an act, frowned at by our Justice system.
