Examining The Legality Of President Bola Tinubu’s Declaration Of State Of Emergency In Rivers State-By Nelson Ekujumi

Following President Bola Tinubu’s declaration of a state of emergency and the suspension of democratic institutions for 6 months in Rivers State as a result of the looming threat to national security occasioned by the intractable crisis between the executive and the legislative arm of government, opinions are divided among Nigerians including legal practitioners on the legality or otherwise of the Presidential proclamation.

Some have argued that though they recognized the constitutional powers of the President to proclaim a state of emergency in any part of Nigeria under threat to public order and safety as enshrined in section 305 of the 1999 constitution as amended, they are insisting that the constitution does not give the President express powers to suspend a democratically elected Governor or members of the legislative assembly, so in their opinion, Mr. President has acted illegally. Some others are also of the view that Mr. President should have not acted swiftly to avert the looming threat to national security but slowed down for engagements with the two warring parties to resolve their lingering dispute, while some have commended Mr. President for being responsible and responsive to his oath of office by taking a bold, responsible and timely action to prevent a total breakdown of law and order which is constitutional.

However, it is important for us all to acknowledge that we operate a constitutional democracy in which our laws are written in English language for any educated and enlightened mind to read and digest. One doesn’t need to be a legal practitioner to understand the provisions of Nigeria’s constitution which is a written document that can be accessed by whoever desires it. Therefore, when a legal practitioner is analyzing any provisions of the constitution, take it to the bank that he or she is merely expressing an opinion on it, just like any person who is not a lawyer but conversant with the constitution. The only authority that can affirm the position of the law is the court and nobody else.

As we go further, it is important for us to highlight Section 305 of the 1999 Constitution in order to understand and appreciate the legality or otherwise of Mr. President’s proclamation and not allow ourselves to be swayed or confused by opinions from commentators including legal practitioners that is not in sync with our understanding of the provisions of constitution which is codified in English language that is our Lingua Franca.

Section 305 of the Constitution of the Federal Republic of Nigeria states as follows:

(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 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.

(4) The Governor of a State may, with the sanction of a resolution supported by 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 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.

Section 305 of the Constitution of the Federal Republic of Nigeria

More: https://jurist.ng/constitution/sec-305

Ladies and gentlemen, paragraph 3© of section 305 states clearly that, (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;

What the above simply means without any ambiguity is that Mr. President by virtue of the provisions of this section 305 paragraph 3© of the 1999 Constitution can take extraordinary measures to restore peace and security to any part of Nigeria under threats like we have seen in Rivers State repeatedly till the imposition of a state of emergency.

So, when any person including legal practitioners try to bamboozle you on this matter by asserting that Mr. President is not empowered by law to remove or suspend democratically elected officials from office in order to restore peace, please tutor them by explaining in English language or local languages depending on which will aid understanding better, that the provisions of the constitution is very clear in empowering Mr. President with the liberty to take extraordinary measures to restore peace and security.

One has also seen some laughable assertions even from the NBA in its press release where it insinuated that the tense situation in Rivers State was not sufficient for Mr. President to proclaim a state of emergency. Again, we need to educate whoever is running with this fallacious thinking that they are wrong and ignorant. Under the constitution of the federal republic of Nigeria, the only authority vested with the powers to determine a situation that warrants a declaration of state of emergency is Mr. President only, any one or group trying to undertake such role illegally is an impostor and fraudster.

By the intractable political crisis that engulfed Rivers State since 2023 when Mr. Fubara demolished the legislative assembly complex to prevent the legislature from performing its functions and appropriated to himself in gross violation of the provisions of the constitution which he swore on oath to uphold, the right to determine who is a member of the legislative house or not, among other violations including appropriating public funds and spending without legislative approval as demanded by law, Mr. Fubara as described by the Supreme court in its judgement as a despot, declared war on the federal republic of Nigeria and it was only appropriate, responsible and timely for President Bola Tinubu to act within the ambit of the law to restore peace and security before it degenerates further with the attendant loss of lives and destruction of public and private assets which has begun with the attacks on oil installations.

In the final analysis, President Bola Tinubu must be commended for rising to the demands of his office in prioritizing the safety and welfare of the people of Nigeria far and above any other considerations in the proclamation of a state of emergency in Rivers State to restore peace and security under threat in line with the provisions of the constitution of the federal republic of Nigeria, as we call on the national assembly to immediately do the needful in ratifying the proclamation for the collective good of the people of Rivers State in particular and Nigerians in general.God bless the federal republic of Nigeria. Thanks.

Yours sincerely,

Nelson Ekujumi,

nelekujumi@gmail.com

A rights, and good governance advocate