State Of Emergency In Nigeria: Powers And Duties Of The President

CONTRIBUTOR: ANEKWE ANGELA EKENE

INTRODUCTION

The Black’s Law Dictionary explains “emergency” to mean a situation that requires immediate attention and remedial action, involving injury, loss of life, damage to property, or catastrophic interference with normal activities, or a sudden, unexpected, or impending situation.^[1] A state of emergency is however a declaration used to invoke the doctrine of necessity in a democratic state by temporarily suspending democratic rule to enable the government to address extraordinary issues which affect the security, welfare and sovereignty of a state.^[2]

This could be due to the outbreak of war, uncontrollable crime rate, terrorism and pandemics which often require a more rigid governmental control of institutions to address the situation, which democratic settings might hinder. The Nigerian Constitution grants the president the power to declare a state of emergency, but is silent on the suspension of a state governor. A state of emergency allows the president to immediately make any desired regulations to secure public order and safety.

This article explains the concept of a state of emergency, as outlined particularly in Section 305 of the 1999 Constitution. It highlights the powers and duties of the president during state of emergency and various circumstances, which gives the president the authority to call for a state of emergency in Nigeria, the incidental powers that accompany the state of emergency as well as the duties of the president. It highlights the role of the Courts during such a declaration as well as draws a conclusion.

THE STATE OF EMERGENCY IN NIGERIA: THE CONSTITUTIONAL PROVISION

In Nigeria, the Constitution of the Federal Republic of Nigeria 1999 (as amended) makes room for the drastic measures which scholars have argued severally exists as a matter of last resort to bring about public order and safety.

Section 305 of the Constitution provides the constitutional framework for the declaration of a state of emergency in Nigeria. It states thus;

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.

From the foregoing provision, it is crystal clear that the constitution empowers the President to declare a state of emergency under the circumstances listed above. However, such a declaration is subject to the authentication of the National Assembly which must approve or reject the same within ten (10) days. This requires a 2/3 majority to obtain such approval. When approved, such a declaration lasts for six months and any further extension equally requires a 2/3 majority approval of the National Assembly.

THE POWERS AND DUTIES OF THE PRESIDENT DURING STATE OF EMERGENCY

During the declaration of a state of emergency, the president has enormous powers, which includes:

1. To deploy the military and;
2. Restrict movements and assembly.

However, there has been lots of controversies regarding, whether these powers extend to empowering the president to suspend or dissolve the executive and legislative organs in the affected state. In Attorney General of Plateau State v Goyal,^[3] the court ruled that “it is only when a state of emergency has been declared that can warrant the suspension of democratic institutions in the polity.”^[4] This decision was reached by the Court while it was criticizing the suspension of the elected local government officials at the time, when no state of emergency was declared.

The powers of the president to declare a state of emergence has been exercised in the past and present regimes and such declaration done in the public interest. In 2004 the then former President of the Federal Republic of Nigeria, Olusegun Obasanjo, declared a state of emergency in Plateau State and also suspended the democratic institution.^[5] Similarly, is the recent declaration of the state of emergency and suspension of democratic institution in Rivers state by the current president of Federal Republic of Nigeria, President Bola Tinubu.^[6]

It is not at all time that these declaration is accompanied by suspension of a democratic institution. In 2013, the then former President of Nigeria, Goodluck Jonathan declared a state of emergency in Borno, Yobe, and Adamawa state in response to the Boko Haram insurgency, however, the state governors and the state houses of assemblies were still allowed to remain in office.^[7] The military were only deployed to hot zones to combat the terrorist threat.

The President’s powers during a state of emergency appears to be wide, however, section 305(3) of the Constitution restricts the circumstances in which the President can declare a state of emergency. Such restrictions include:

1. where 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;
2. Where the Federation is at war;
3. Where the Federation is in imminent danger of invasion or involvement in a state of war;
4. Where there is a public danger that poses a threat to the Federation’s existence;
5. Where there is an actual breakdown of public order and public safety in the Federation or any part thereof to the extent that it necessitates extraordinary measures to restore peace and security; or
6. When the Governor of a state requests such a declaration.

It goes without saying that the President cannot out of his own volition, declare a state of emergency, and since this power is derived from the constitution, the constitution equally guides the enforcement of such a declaration. It then means that as the President is constitutionally bound to act with regard to the rule of law and respect for the fundamental rights of citizens protected by Chapter IV of the Constitution.

Any derogation is permitted only to the manner reasonably necessary to restore public order and protect the integrity of the state as provided in Section 45 of the Constitution. The judiciary is immune to such a declaration. It retains its power granted pursuant to section 6 of the Constitution to act as a check on executive actions during such declarations.

This oversight ensures that the President or his appointed Administrator do not act beyond the powers necessary to restore order. Notably, the recent declaration of a state of emergency in Rivers State is being challenged by the Governors of the opposition Peoples’ Democratic Party (PDP).^[8] What the court will say as to the suspension of the democratic institutions is now left to be seen. Although the previous obiter on the subject matter suggests that the courts are in agreement with suspension of democratic institutions.^[9]

ROLE OF THE COURTS DURING SUCH DECLARATION

The Courts plays a crucial role in reviewing the legality of declaration of state of emergency. In the landmark case of Plateau State and Ors v. Attorney General of the Federation,^[10] the Supreme Court avoided to issue a pronouncement on the legality of the suspension of democratic institutions during a state of emergency. It rather struck out the matter on a technicality, ruling that the party who commenced the suit didn’t have the authority of the then Administrator of Plateau State to commence the suit, and the subsequent authorization by the returned Governor cannot sustain the suit.

The Court cautioned that the power to declare a state of emergency must be exercised within the constitutional limits. The Court also cautioned against arbitrary actions that might undermine the principles of federalism and democracy.

CONCLUSION

The Nigerian Constitution establishes the framework for the declaration of a state of emergency, which is meant to be a means of last resort to preserve the integrity of the state and protect lives and property. However, the declaration and implementation of such a state of emergency must be guided by constitutional provisions, judicial oversight, and most importantly, a commitment to democracy.

RECOMMENDATION

The experience so far in Nigeria is mixed with present necessity and sometimes abuse of emergency powers. There are allegations, particularly in Rivers state, that it has become a tool for political manipulation. It is recommended that the judiciary, civil society, and the legislature play an extensive role in checking the executive’s excesses. This will ensure that the declaration and implementation of emergency powers are done within the bounds of law and democratic accountability.

REFERENCE

1. Black’s Law Dictionary, ‘Emergency’ (2023) https://thelawdictionary.org/emergency/ accessed 19^th May 2025. ↑

2. Attorney General of Plateau State v Goyal (2007) 16 NWLR (Pt. 1059) 57 SC; Attorney General Ondo State v Attorney General of the Federation (2002) 9 NWLR (Pt. 772) 222 SC. ↑

3. (2007) 16 NWLR (Pt. 1059) 57 CA ↑

4. Ibid p.94, para D-H. ↑

5. The New Humanitarian, ‘Obasanjo declares state of emergency in Plateau State’ (2004) https://www.thenewhumanitarian.org/news/2004/05/18/obasanjo-declares-state-emergency-plateau-state accessed 19th May 2025. ↑

6. Punch Newspapers, ‘Tinubu suspends Fubara, deputy for six months’ (2025) https://punchng.com/breaking-tinubu-suspends-fubara-deputy-for-six-months/ accessed 19^th May 2025. ↑

7. Sahara Reporters, ‘Jonathan Declares State of Emergency In Borno, Yobe and Adamawa State’ (2013) https://saharareporters.com/2013/05/14/breaking-news-jonathan-declares-state-emergency-borno-yobe-and-adamawa-state accessed 19th May, 2025. ↑

8. Premium Times, ‘Seven PDP states sue Tinubu, National Assembly at Supreme Court over Rivers emergency rule’ (2025) https://www.premiumtimesng.com/news/headlines/783983-seven-pdp-states-sue-tinubu-national-assembly-at-supreme-court-over-rivers-emergency-rule.html accessed 19^th May 2025. ↑

9. Generally Attorney General of Plateau State v Goyal (2007) 16 NWLR (Pt. 1059) 57 SC; Attorney General Ondo State v Attorney General of the Federation (2002) 9 NWLR (Pt. 772) 222 SC. ↑

10. (2006) 3 NWLR (Pt. 968) 346. ↑