The Unconstitutionality of President Bola Ahmed Tinubu’s State of Emergency Declaration in Rivers State
1.0 Introduction
1.1 On March 18, 2025, President Bola Ahmed Tinubu1, citing section 305(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), declared2 a state of emergency in Rivers State and ordered the suspension of the elected Governor Sir Siminilayi Fubara and Deputy Governor Prof. Ngozi Odu, including all members of the Rivers State House of Assembly for initial period of 6 months, with effect from 18th day of March, 20253.
The president went further to nominate Vice Admiral Ibokette Ibas (Retire) to take over as the new Rivers State Governor and Administrator for an initial period of 6 month4. This unprecedented action raises grave constitutional, legal, security, economic, and political concerns, as it clearly exceeds the powers vested in the President by the Nigerian Constitution.
A close analysis of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and relevant judicial precedents reveals that the President’s action is unconstitutional, illegal, and a dangerous precedent that threatens the foundation of Nigeria’s democracy.
2.0 Constitutional Provisions on a State of Emergency
The power of the President to declare a state of emergency is governed by Section 305 of the 1999 Constitution. The relevant provisions state that:
a. Only the President Can Declare a State of Emergency
Section 305(1) empowers the President to proclaim a state of emergency in Nigeria or any part thereof by an instrument published in the Official Gazette.
b. Conditions for Declaring a State of Emergency
Section 305(3) limits the grounds for such a proclamation to:
- War or external aggression.
- Imminent danger of invasion or insurrection.
- Breakdown of public safety or law and order.
- Natural disasters such as earthquakes or floods.
- Public health emergencies such as pandemics.
- A breakdown in the functioning of a state government where the governor formally requests it.
3. National Assembly Approval is Mandatory
Section 305(6) requires the National Assembly to approve the proclamation within two days5 or ten days6.
4. The President Cannot Suspend or Remove Elected Officials; governpr, deputy or legislators
Combined reading of section 11(4) & (5) provides that even in an emergency, the legislative powers of a state shall not be suspended. However, the National Assembly may law to apply to a state only when the House of Assembly of that State is unable to perform its functions by reason of the situation prevailing in that State-
Provided that nothing in the section shall be construed as conferring on the National Assembly power to remove the governor or deputy governor of the state from office.
The only constitutional means of removing a governor are:
- Impeachment under Section 188 of the Constitution.
- Resignation, death, or permanent incapacity.
- Nullification of the election by a court.
5. Why President Tinubu’s Action is Unconstitutional
The President Lacks the Power to Suspend a Governor
Nowhere in Section 305 or any other law is the President given the power to remove, suspend, or replace a sitting governor. His action of removing from office, as governor and deputy governor respectively, of His Excellency, Sir Siminilayi Fubara and deputy, Prof. Ngozi Odu and all members of the Rivers State House of Assembly runs contrary to section 1(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides thusly:
The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of this constitution.
It is my submission that the unceremonious suspension order of Mr. president on the governor, deputy and the House of Assembly members is inconsistent with our laws, and thus an affront to democracy and therefore ought be declared a nullity by the Court7.
The Supreme Court in A.G. Federation v. A.G. Lagos State8 ruled that a state of emergency does not automatically suspend democratic institutions9.
6. Precedents of Unlawful Emergency Declarations under President Olusegun Obasanjo’s administration.
In 2004, President Olusegun Obasanjo declared a state of emergency in Plateau State and suspended Governor Joshua Dariye. This was widely criticized as unconstitutional10.
In 2006, Obasanjo similarly suspended Governor Ayo Fayose of Ekiti State, an action that was legally disputed11.
7. Instances of State of Emergency Declarations under President Goodluck Jonathan’s administration and Legal Reactions
During his tenure, President Goodluck Jonathan declared a state of emergency on two notable occasions to address the Boko Haram insurgency in northern Nigeria. These declarations sparked legal and political debates, with courts ultimately affirming constitutional limits on emergency powers.
a. The 2011 State of Emergency in Parts of Four Northern States
On December 31, 2011, President Jonathan declared a state of emergency in 15 local government areas (LGAs) across Borno, Yobe, Plateau, and Niger States due to Boko Haram attacks (Federal Government of Nigeria, 2012)12.
- Legal and Political Reactions
The National Assembly approved the declaration in line with Section 305(6) of the Constitution of the Federal Republic of Nigeria, 1999, as amended)13.
Unlike previous emergency declarations, Jonathan did not suspend elected officials but focused on security enforcement14
There was no significant legal challenge, as the declaration largely complied with constitutional requirements. That was unlike in the instant case (or the cases under Obasanjo) where the president has flagrantly jettisoned the constitution and our laws and arrogated on himself the power to disband democratically elected government.
b. The 2013 State of Emergency in Borno, Yobe, and Adamawa States
On May 14, 2013, President Jonathan declared a state of emergency in the entire Borno, Yobe, and Adamawa States due to intensified Boko Haram insurgency15.
- Key Features of the 2013 Declaration
Security agencies were granted sweeping powers to combat insurgents.
Unlike Obasanjo’s and Tinubu’s approach, elected governors and state assemblies were not suspended. The National Assembly approved the declaration, as required by the Constitution16.
Military operations intensified, but human rights concerns were raised over alleged extrajudicial killings and mass detentions17.
- Legal and Judicial Reactions
1. Case of Ali Modu Sheriff v. A.G. Federation (2013)
Former Borno State Governor Ali Modu Sheriff challenged the deployment of soldiers under emergency rule, arguing it violated federalism principles.
The Federal High Court upheld the emergency measures, citing the President’s constitutional duty to maintain national security18.
2. Challenges from Adamawa State Lawmakers
Some lawmakers in Adamawa State attempted to challenge the constitutionality of military rule in the state.
The Supreme Court dismissed the suit, emphasizing that Section 305 of the 1999 Constitution grants the President emergency powers as long as they are approved by the National Assembly19
- It is evident from a peep at Jonathan’s administration that there was a maximum compliance with the requirements of the constitution vis-à-vis declaration of State of Emergency. The Nigerian courts generally upheld the legality of Jonathan’s state of emergency declarations, though cautioned against executive excesses. For instance, in A.G. Federation v. A.G. Yobe & Ors (2014) LPELR-23221(SC), the Supreme Court ruled that an emergency declaration does not automatically dissolve state governments.
The Court emphasized that the President cannot unilaterally remove elected officials without following constitutional procedures (e.g., impeachment under Section 188).20 Again, the in Lakanmi v. A.G. Western Nigeria, the Supreme Court ruled that even during emergencies, the President cannot arbitrarily remove elected officials.21.
- Relying on the plethora of judicial and statutory authorities alluded to, it is my submission that the law empowers President Tinubu to declare state of emergency in Rivers State, following the political crisis currently persistent thereat, subject though to approval from the National Assembly within 2 or 10 days as the case may be. However, I am strongly opposed to the action of Mr President suspending elected officials. Such declaration is ultra vires the constitution and at best passes for executive rascality and impunity.
8. Legal Remedies available to Governor Fubara, Deputy and the House of Assembly members.
Governor Siminilayi Fubara and the others have multiple legal options to challenge this unconstitutional action:
1. File a Suit at the Supreme Court
Under Section 232(1) of the Constitution, disputes between the Federal Government and a State Government fall under the original jurisdiction of the Supreme Court. Alternatively, he may pursue legal remedy in the Federal High Court since the cause of action touches on his personal rights. Same applies to the deputy governor and the House members. The appropriate remedy may be a declaratory order invalidating the emergency proclamation.
2. Obtain an Injunction from the Federal High Court
A court can issue an interim order restraining the President from implementing the illegal suspension or restraining the National Assembly from approving the declaration.
3. Political approach by way of engaging the National Assembly
Since Section 305(6)(b) requires legislative approval, lobbying the National Assembly to reject the proclamation would render it null and void.
4. Seek International Intervention
Governor Fubara can petition international organizations such as the United Nations (UN), ECOWAS, and the African Union (AU), citing a violation of democratic norms. The United Nations (UN) and ECOWAS has in the past acknowledged the security justification of declaration of State of Emergency but urged restraint in military operations22.
9. Implications of the Unconstitutional Declaration
1. Security Implications: The removal of elected officials could trigger violent protests and unrest. Militants and separatist groups in the Niger Delta may exploit the crisis, worsening insecurity. This point is supported by recent explosion of oil pipelines immediately before and after the declaration within the territory of the Ijo Nation in Rivers and Bayelsa States.
2. Legal Implications: If this unconstitutional action is not challenged, it sets a dangerous precedent where future Presidents may arbitrarily suspend governors at will. It undermines the judiciary, forcing courts into politically charged rulings.
I charge the Nigerian Governors Forum and the National Assembly to condemn and pursue the reversal of the suspension.
3. Economic Implications: Rivers State is an oil-producing region, and political instability could scare investors, disrupt oil production, and hurt the national economy.Also, international financial organizations could impose sanctions on Nigeria for undermining democracy.
4. Political Implications: The ruling All Progressives Congress (APC) risks being seen as an authoritarian regime, damaging its reputation ahead of future elections.Opposition parties may mobilize against the government, leading to further political division.
10. Conclusion
The suspension of Governor Sir Siminilayi Fubara and other elected officials in Rivers State is a flagrant violation of the 1999 Constitution. The President lacks the constitutional authority to remove a governor under the guise of an emergency. To safeguard Nigeria’s democracy, Governor Fubara should: 1. Challenge the proclamation at the Supreme Court. 2 Seek legislative intervention from the National Assembly. 3 Engage international bodies to protect democratic governance. on their part, the National Assembly and the judiciary must uphold the rule of law and reject executive overreach. If left unchallenged, this action could set an ugly precedent for future Presidents to arbitrarily remove elected officials, leading to the erosion of Nigeria’s democracy.
1 President of the Federal Republic
2 Through a live nationwide broadcast
3 This was consequent upon the political crisis prevalent in Rivers State between the Executive and the Legislative arms of the State Government since 2023.
4 It was revealed by the President that same proclamation had been published in the Federal Government’s Official Gazette and sent to the National Assembly for approval.
5if in session
6 if not in session
7 See section 1(3) of the 1999 Constitution
8 (2013) LPELR-20974(SC)
9 Attorney General of the Federation V. Attorney General of Lagos State (2013) LPELR-20974(SC).
10 Obasanjo’s 2004 Plateau State Emergency: A Legal Perspective. Nigerian Law Review, Vol. 5, 2005
11 Ekiti State Emergency, 2006: The Legal Controversy. Nigerian Bar Association Journal, 2007
12 Federal Government of Nigeria (2012). Gazette on State of Emergency, 2011. Abuja: Government Press.
13 Constitution of the Federal Republic of Nigeria (1999, as amended). Section 305.
14 See J. Ojo (2013). Emergency Powers and Democratic Stability in Nigeria. Nigerian Journal of Constitutional Law, Vol. 12(2), pp. 45-67.
15 Presidency of Nigeria (2013). Declaration of Emergency in Borno, Yobe, and Adamawa States. Abuja: Government Press.
16 National Assembly Proceedings (2013). Debate on the 2013 Emergency Proclamation. Abuja: NASS Library.
17 Amnesty International (2014). Human Rights Violations in Nigeria’s Emergency States. London: Amnesty Publications.
18 See Modu Sheriff v. A.G. Federation (2013) Suit No. FHC/ABJ/CS/254/2013. Federal High Court, Abuja
19 See the case of A.G. Federation v. A.G. Yobe & Ors (2014) LPELR-23221(SC)).
20 A.G. Federation v. A.G. Yobe & Ors (2014) LPELR-23221(SC). Supreme Court of Nigeria.
21 Lakanmi & Anor v. A.G. Western Nigeria (1971) 1 U.I.L.R 201.
22 UN Security Council Report (2013). Nigeria’s Emergency Rule and Human Rights Observations. Geneva: UNHRC.
Featured Image Credit: Inside Success Nigeria
About Author
Sunday Nelson Ogboso, Esq. is a practising Attorney at the law firm of I.I Ekwerekwu, Ekwerekwu & Co. located at No. 2 Court Road, Onitsha, Anambra State, Nigeria. He is also a legal scholar and corporate law expert pursuing a Master’s degree in Corporate, Commercial, and Business Law at Nnamdi Azikiwe University, Awka. He is passionate about constitutional law, business law, and governance reforms in Nigeria.
Email: [email protected] | Phone: 09032032811.
