EXPLAINER: What constitution says about emergency rule, governor’s suspension

The rift had led to a split within the state house of assembly, with lawmakers at odds with the governor.

Addressing the situation in a live broadcast, Tinubu announced the suspension of Fubara, Ngozi Odu, his deputy, and all members of the Rivers Assembly for an initial period of six months.

The president also appointed retired Vice Admiral Ibok-Ete Ibas as the administrator of Rivers state.

DOES THE PRESIDENT HAVE THE POWER TO DECLARE AN EMERGENCY RULE?

Under section 305 of the 1999 constitution (as amended), the president can declare a state of emergency in Nigeria or any part of the country under specific conditions, including:

• War or imminent danger of war
• Breakdown of public order and safety to the extent that extraordinary measures are needed to restore peace
• Natural disasters or other calamities affecting a community or a section of the country
• Any other public danger that threatens the existence of the federation
• A formal request by the state governor

WHAT ARE THE PROCEDURES FOR DECLARING AN EMERGENCY RULE?

First, the president must issue an official proclamation. Then the national assembly (senate and house of representatives) must approve the declaration within two days (if in session) or ten days (if not in session).

If approved, the state of emergency remains in effect for six months and can be extended if necessary.

According to Akin Rotimi, spokesperson for the house of representatives, Tinubu consulted with the national assembly leadership before making his announcement. The consultation included Senate President Godswill Akpabio, Abbas Tajudeen, house speaker; Benjamin Kalu, deputy speaker; Opeyemi Bamidele, senate leader; Julius Ihonvbere, house of representatives leader; and Nuhu Ribadu, national security adviser.

IS IT LAWFUL FOR THE PRESIDENT TO SUSPEND A GOVERNOR AND STATE LAWMAKERS?

Following the suspension of Fubara and his deputy, legal experts have raised concerns about whether the president has the constitutional authority to take such an action.

Afam Osigwe, president of the Nigerian Bar Association (NBA), stated that the 1999 Constitution does not grant the president the power to remove an elected governor, deputy governor, or state legislators under a state of emergency.

“Rather, the constitution provides clear procedures for the removal of a governor and deputy governor as per Section 188. Similarly, the removal of members of the house of assembly and dissolution of parliament is governed by constitutional provisions and electoral laws, none of which appear to have been adhered to in the present circumstances,” Osigwe said.

“A declaration of emergency does not automatically dissolve or suspend elected state governments. The Constitution does not empower the President to unilaterally remove or replace elected officials — such actions amount to an unconstitutional usurpation of power and a fundamental breach of Nigeria’s federal structure.”

The NBA president added that “the situation in Rivers state, though politically tense, does not meet the constitutional threshold for the removal of elected officials”.

In a post on X, Inibehe Effiong, a human rights lawyer, also agreed that Tinubu went beyond his constitutional powers to issue a suspension on the executive and legislative arms of the Rivers government.

Recalling an earlier article addressing the subject, Effiong said under the current constitutional framework, an elected governor can only leave office through impeachment, resignation, permanent incapacitation, death, or expiration of tenure.

“Any attempt to remove an elected state governor under the guise of declaration of the so-called ‘full state of emergency’ will be unconstitutional,” he said.

“Though such action is supported by the precedent set in Plateau state during the Olusegun Obasanjo dispensation, it remains an illegality and we all know Obasanjo with his military background had an unenviable record of illegalities and disdain for democratic ethos and Rule of Law during his sadistic and despotic days in power.”

The lawyer added that the phrase ‘sole administrator’ “is a constitutional aberration which cannot be found, not even impliedly, in any of the 320 sections of the 1999 Constitution”. 

“It is a military terminology which cannot be imported into our current democratic dispensation by any stretch of interpretation. State of emergency is state of emergency and not state of the military,” Effiong said.

Another lawyer, Festus Ogun, described Tinubu’s action as a “rape of democracy.”

“People elected by electorates cannot be arbitrarily suspended by words of mouth under any guise whatsoever. The President has chosen the path of executive lawlessness,” the lawyer stated.

Ogun also questioned the appointment of Vice Admiral Ibok-Ete Ibas (Rtd) as the state’s administrator:

“Where does Tinubu derive this power from? What metrics did he use to appoint him? Did Rivers people appoint or elect Ibas? What part of the Constitution empowers Tinubu to appoint an ‘administrator’ to govern a state? This is arbitrariness taken too far. All democrats must immediately condemn and reject this travesty,” Ogun said.

Also adding his voice to the issue, Diekolola Daniels, a lawyer, said the constitution does not expressly state that the president can suspend a governor.

“Where it has not been expressly stated, you cannot infer that power for the governor,” he explained.

“Look at when Goodluck Jonathan was going to declare a state of emergency for Adamawa, Yobe, and Borno states when he was president. Did he at any point suspend the governors of that state?

“How can the person who did not appoint fire? (4:17) Is the Governor a Minister to the President, upon which you have the right to fire, suspend or do whatever you like with him? (4:24) The Constitution puts sovereignty in the hands of the people, Section 14 of the Constitution. And when that sovereignty has been exercised by voting for the elected officials, it is only the people that can recall that elected officials or as has been stated in Section 188, in the case of the governor, Section 188 of the Constitution, the legislators can impeach that elected official.”

CONCLUSION

While the declaration of a state of emergency is constitutionally backed under certain conditions, legal experts argue that suspending a sitting governor, deputy governor, and lawmakers is beyond the president’s constitutional powers.

The move has sparked a legal and political debate that could shape the interpretation of executive authority in Nigeria’s democratic framework.

Not being expressly stated in the constitution and having no judicial precedent has created a lacuna in the interpretation of whether or not the president can suspend a democratically elected government during a state of emergency.

Although Plateau state and its house of assembly contested the legality of suspending the governor up to the supreme court, the apex court had dismissed the suit on the ground that it lacked original jurisdiction to hear the suit.

The court agreed with the preliminary objection filed by the attorney-general of the federation and the national assembly that the plaintiffs (Plateau state and the state assembly) lacked the locus standi to institute the suit because they were not authorised by the then-state administrator.

The court did not go into the merit of the case.