During a nationwide broadcast on Tuesday, March 18, 2025, President Bola Ahmed Tinubu declared a state of emergency in Rivers State. Further to the declaration, he also suspended the Governor of the State, Siminalayi Fubara, his deputy, Mrs. Ngozi Odu, and all members of the state House of Assembly for six months. This move by the President has generated a lot of tension and has sparked an intense legal debate across the country regarding the extent of presidential powers under the emergency provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and whether these powers have been rightly exercised.

This article seeks to examine whether the President’s action constitutes a due exercise of his constitutional power and authority or an overreach that threatens Nigeria’s federal structure and democratic governance.  

Understanding the Constitutional Basis for a State of Emergency

In exercising this power, President Tinubu invoked the provisions of Section 305 (1) and (3)(c)(d) of the 1999 Constitution of the Federal Republic of Nigeria (the constitution), which provides thus –

Section 305 (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.

Section 305 (3)(c)(d) – “The President shall have power to issue a Proclamation of a state of emergency only when – (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.

Under Section 45(3) of the Constitution, a period of emergency was defined to mean any period during which there is in force a proclamation of a state of emergency declared by the President in the exercise of the powers conferred on him under Section 305 of the Constitution. Though no clear definition of ‘state of emergency’ is offered in the constitution, section 305 (3) offers guidance with respect to the instances that may warrant such declaration by the President. It provides thus:

“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 an 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.”

From the provisions above, clearly the President has the power to declare a state of emergency in any state of the federation, in defined circumstances. One of those defined instances is where there is an actual breakdown of public order and safety and there is a need to restore peace and security or there is fear of an imminent breakdown of public order and safety, and there is a need to avert the danger. Though the President cited the demolition of the State House of Assembly building in December 2023, the bombing of the Trans-Niger Pipeline (TNP) – one of Nigeria’s biggest oil pipelines, and the failure to pass the 2025 appropriation bill in the state, as the basis for the proclamation, it is left to be seen whether these events are sufficient basis to conclude that there is actual or imminent danger of breakdown of law and order in Rivers state.

The ejusdem generis canon of interpretation proposes that where general words are used in a statutory provision after specific words, those generic words will be interpreted strictly in light of the specific words.[1] Section 305(3)(a)(b)(e) of the Constitution highlights those specific and defined instances where a President may declare a state of emergency as follows – War, threat of invasion or involvement in a war, and occurrence or imminent danger of disaster or natural calamity. Applying the ejusdem generis rule, 305(3)(c)(d) of the Constitution must be objectively construed within the context of the other specific items listed in Section 305(3). That is, the interpretation of Section 305(3)(c)(d) ought to be confined to the class in Section 305(3)(a)(b)(e. Therefore, we are of the view that it ought to take an event or series of events comparable in gravity to those specifically listed events in Section 305(3)(a)(b)(e) of the Constitution before the President can conclude that there has been actual or imminent danger of breakdown of public order and safety. 

Furthermore, the Presidential declaration of a state of emergency is not by itself absolute or automatic. It is subject to the provisions of Section 305(2) of the constitution which provides thus –

“The President shall immediately after the publication, transmit copies of the official gazette 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.”

This underscores the principle of checks and balances, whereby the National Assembly is empowered to consider the presidential proclamation and either ratify or vote against it, as it deems fit.

Can the President suspend a Governor and Legislature?

Though it is evident that the President indeed possesses the power to declare a state of emergency in any part of the Federation where there is an actual breakdown or present danger of an actual breakdown of public order and safety, which power is subject to the ratification of the Houses of Parliament, it must be categorically stated that no provision of law clothes the President or the Federal Government with power to sack or suspend either the legislature or the executive structure of a state government.

Through careful reading, the exercise of the President’s power to declare a state of emergency under Section 305 of the Constitution is made ‘subject to the provisions of the Constitution’. As decided in the case of Kabo Air Ltd v. Oladipo[2] per Obadina JCA, when the phrase “subject to the provisions in this constitution” is used in a statute or the constitution, it means that other provisions of the Constitution shall prevail over the instant provision being so qualified, should there be a conflict between that provision and the other provisions of the Constitution.

Essentially, this means that recourse would have to be given to other provisions of the Constitution on the procedure and basis for the removal of a state governor and deputy governor, as well as the recall of members of the House of Assembly. Sections 188 and 110 of the Constitution, evidently do not provide for the removal of the afore-named officers of a state from office, nor contemplate the appointment of unelected sole administrator(s) in their stead[3]. There is no better evidence to support this proposition than the provisions of section 305(4) of the Constitution, which is to the effect that the Governor may with the sanction of a two-thirds majority of the House of Assembly, request the President to issue a declaration of a state of emergency in its state. It is doubtful that the makers of the Constitution intended that where the Governor (with the sanction of the House of Assembly) requests the President to declare a state of emergency pursuant to section 305(4), he has ipso facto recommended his removal or suspension and that of the members of the House.

Furthermore, by a combined reading of Section 11(4) and (5) of the Constitution, it is clear that even in a period of emergency, the Constitution envisages that legislative powers of a state shall continue to reside with the House of Assembly or where it is unable to sit, the National assembly.

From the above provisions of the Constitution and judicial pronouncement, it appears clear enough that though the President is clothed with the power to declare a state of emergency in appropriate circumstances, the Constitution did not anticipate the suspension of the democratically elected Governor and members of the House of Assembly, nor the appointment of a sole administrator in their stead.

Political and Governance Implications

Many have cited the instances of the declaration of a state of emergency and suspension of governors of Plateau and Ekiti States during the tenure of President Olusegun Obasanjo between 1999 and 2007 as a justification for the current act of the president. However, it is necessary to note that the jury is still out as to the Constitutionality of the acts of the former President, and by this token, it ought not to be paraded as a binding precedent in the instant case. 

During the presidency of former president Goodluck Jonathan, when issues of insurgency and terrorism plagued the North Eastern part of the Country, the President declared a state of emergency in Adamawa, Borno, and Yobe States, whilst retaining the democratic structures in those states.

In sum, we hold the view that whilst the proclamation by President Tinubu, subject to the ratification of the National Assembly, may well be within the ambit of his presidential powers under Section 305, it does not appear that this power extends to the suspension of democratically elected officials of the state. It is an established principle that every executive action must be founded on law[4].

Conclusion

In the case of A.G Federation v. A.G Yobe & Ors[5], the Supreme Court rightly held that an emergency declaration does not automatically dissolve state governments. It is therefore safe to say, given the position of the courts and the law, that while the President has the constitutional authority to declare a state of emergency, there are no clear-cut provisions that empower the President to suspend executive and legislative officers of any State. Applying the principle of expressio unius est exclusion alterius (the express mention of a thing is the exclusion of others), it could be argued that since the Constitution expressly provided for the procedure for the removal of a Governor and also the recall of members of the House of Assembly, the suspension of both the executive and legislative arm of government in Rivers State by the President without recourse to these provisions, amounts to a constitutional breach.

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[1]  Buhari vs Yusuf (2003) 14 NWLR (pt. 841) at 486 – 487

[2] (1999) 10 NWLR PART 623, 517 AT 533

[3] C.U Agbo, ‘Abuse of Exercise of Emergency Powers under Civil Rule in Nigeria: An Overview’ NAUJILJ 10 (2) 2019 file:///Users/user/Downloads/ajol-file-journals_479_articles_183686_submission_proof_183686-5653-467609-1-10-20190219.pdf accessed on 19 March 2025

[4]I. Okafor and O. Amucheazi, ‘The Concept of Federation in Nigeria’ (Enugu: SNAPP Press Ltd, 2008)

[5] (2014) LPELR-23221 (SC)

Written by Chinaza Eneh for The Trusted Advisors

Email us: info@cms.trustedadvisorslaw.com

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