Tinubu’s State of Emergency & the Necessity of Adjudication
It was Tuesday, March 18, when the waters of Rivers State political tides came to a head as President Bola Ahmed Tinubu GCFR suspended the Governor, his Deputy, and the entire House of Assembly in a national broadcast pending publication in the Official Gazette of the Federation and ratification by the National Assembly.
In his broadcast, the President purported to derive his powers from the now infamous Section 305 of the 1999 Constitution of the Federal Republic (as amended) which opens thus:
Subject to the provisions of this Constitution, the President may… issue a Proclamation of a State of Emergency… in the Federation or any part thereof… requiring extraordinary measures to restore peace and security… to avert danger
While one may argue for or against the necessity of extraordinary measures in the affairs of the Rivers State Government under the leadership of His Excellency, Siminalayi Fubara GSSRS, we may desire to read again that the entire ability of the President to declare an SoE is primordially subject to the Provisions of the 1999 Constitution, obviously and otherwise.
The question therefore arises:
Where in the 1999 Constitution…
a. is the President empowered to suspend a Governor, or his Deputy
b. is the President empowered to dissolve a House of Assembly
c. is the President empowered to appoint a sole administrator for a State?
If we are able to back these actions with specific portions of the Constitution, then the President’s SoE is legal. If however we are not able to so do, then the SoE is unconstitutional as it is NOT “subject to the provisions of the Constitution” — again, obviously and otherwise.
A. Obviously…
The Constitution does not empower the President to suspend the Governor or dissolve the House of Assembly. The Constitution also does not empower the President to appoint a Sole Administrator to run the affairs of the area under emergency. The Constitution however does two things that are of import in this case:
- The Constitution empowers the National Assembly to make laws for the federation, such laws as The Emergency Powers (Repeal and Enactment) Act 2018 which actually empowers the President to suspend a sitting Governor (or Chairman of Local Government)…
Section 11
(1)The State Governor or the Local Government Chairman in an emergency area shall continue with the general functions of administering the emergency area under the control of the President or any person designated or authorised to act on his behalf.
(2) The President may give directions to a State Governor or Local Government Chairman directly or through his designate or a duly authorised person with respect to the administration of the emergency area and it shall be the duty of the State Governor or Local Government Chairman to comply with the direction.
(3) The President may with the approval of the National Assembly suspend a State Governor or Local Government Chairman in an emergency area during an emergency period.
It is interesting that this Act gives the President three options on how to administer an area under emergency but Baba Tinubu chose to go for the jugular. This is where the proponents of the Wike Inducement Theory get straws to clutch onto, but I digress.
- The Constitution, although liberal in empowering the National Assembly to make laws, exerts its own supremacy and insists that any law not in tandem with the Constitution’s own provisions is to the extent of such inconsistency null and void.
Section 1
(1) This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.
(2) 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.
(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.
Therefore, the extent (the limits) of the powers conferred on the President by Section 305 is defined firstly by the provisions of The Emergency Powers (Repeal and Enactment) Act but ultimately, and unquestioningly, by the 1999 Constitution of the Federal Republic of Nigeria (as amended).
It may be important to therefore point out, that:
a. Neither of the two documents so far cited empowers the President to dissolve a State House of Assembly or suspend its members.
b. The statements of the Emergency Act are subject themselves to the provisions of the Constitution and are null and void to the extent of any inconsistency.
c. The Constitution expects every inch of the Nigerian space to be governed in line with democratic principles, not authoritarian administratorship. As per the Constitution, all executive and legislative leaders of every space in Nigeria are to be democratically elected and not unilaterally selected least of all a space as large as a federating unit!
B. Otherwise…
The controversies that have trailed the President’s particular choice of emergency options in the Rivers matter affords us yet another opportunity to test our laws as the Constitution intended.
Section 4
(8) Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.
The courts are therefore empowered to examine the laws upon which Mr President based his actions and do one of three things:
- Throw out the case as the Supreme Court did on 24th June 2022 with PRESIDENT FRN v. NATIONAL ASSEMBLY & ORS (2022) LPELR-58516(SC)¹
- Declare a particular section of an enacted law unconstitutional, null and void, as we have read in the past:
An Abuja Division of the Federal High Court has nullified the amendment of Section 25 of the Electoral Act, which was passed in February by the National Assembly.
In a judgement on Wednesday [April 25, 2018], the court presided by Justice Ahmed Mohammed submitted: “After perusing submissions of counsel in this matter, I declare Section 25 of the Electoral Act 2018, which is the section that contravenes the provisions of the Constitution, a nullity.²
- Nullify an entire Act of the National Assembly (and the President’s assent with it):
The apex court, in the lead judgment delivered by Justice Mohammed Idris… declared that sections 17, 18, 19, 20, and 21 of the National Lottery Act 2005 made by the National Assembly are inconsistent with the Constitution, adding that the National Lottery Act is inconsistent with the provisions of the 1999 Constitution. He proceeded to issue an order nullifying the entirety of the National Lottery Act.³
From PDP Governors’ Forum⁴ to SERAP’s suit FHC/ABJ/CS/558/2025⁵, one expects the presidential suspension of a democratically elected governor, his deputy, and members of the State House of Assembly — with replacement by a handpicked administrator — to be challenged in court for all our sakes lest it become a pervasive trend that will undermine our democracy and consume the polity a la 1962’s Akintola Ta Ku! God forbid!
Whichever way the courts rule… “the Plaintiff’s suit seeking for the interpretation of certain provisions of the Constitution cannot be said to be an abuse of the process of the court,” the judge said.”.²
ADELEYE AO
adelayok@gmail.com
23 Mar 2025
References
¹https://lawpavilion.com/blog/can-the-president-challenge-the-constitutionality-of-an-act-of-the-national-assembly-after-giving-his-assent/
²https://www.premiumtimesng.com/news/headlines/266175-breaking-2019-court-nullifies-national-assemblys-amendment-of-electoral-act.html?tztc=1
³https://punchng.com/just-in-supreme-court-nullifies-national-lottery-act/
⁴https://punchng.com/pdp-govs-to-challenge-tinubus-emergency-rule-in-rivers/
⁵https://punchng.com/serap-sues-tinubu-over-fubara-deputy-lawmakers-suspension/
