JOE EDET
It is no news that President Bola Ahmed Tinubu has just declared a state of emergency in Rivers State.
He stated in his broadcast that “in the circumstance, having soberly reflected on and evaluated the political situation in Rivers State and the Governor and Deputy Governor of Rivers State has failed to request me as President to issue this proclamation as required by section 305(5) of the 1999 Constitution as amended, it has become inevitably compelling for me to invoke the provision of section 305 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, to declare a state of emergency in Rivers State with effect from today, 18th March 2025 and I so do.
By this declaration, the Governor of Rivers State, Mr Siminalayi Fubara, his deputy, Mrs Ngozi Odu and all elected members of the House of Assembly of Rivers State are hereby suspended for an initial period of six months”.
A state of emergency may be declared by the government when and where necessary and this usually is a suspension of the rule. It is indeed an exception. The Latin maxim Necessitas non habet legem, meaning “necessity has no law” summarizes this point.
The meaning is that the violation of a law may be excused by necessity, however, this is not a rule of general application in international law but it may be applicable in some exceptional cases for reasons of equity.
The doctrine of necessity is the basis on which extraordinary actions by the administrative authority, which are designed to restore order or uphold fundamental constitutional principles, are considered to be lawful even if such action contravenes established constitutions, laws norms or conventions.
The maxim on which the doctrine is based originated in the writings of the medieval jurists Henry de Bracton and William Blackstone.
The periods of emergencies declared so far in Nigeria have basic characteristics viz- the suspension of a section of the Constitution and perhaps the shifting of legislative powers to the executive.
This state of emergency is usually declared because of national interest, which is often referred to by the French expression raison d’État (“reason of State”), which is the aims, objectives goals and ambitions of a State.
This may be political, economic, military, cultural or otherwise. States of emergency may fall under this purview where strict adherence to the rule of law may cause undue hardship or breakdown of law and order.
Thus in certain circumstances, a declaration of emergency can be justified by invoking the doctrine of necessity and the doctrine is often used as a legal justification for these emergency powers, arguing that the immediate threat outweighs the importance of upholding constitutional norms in the short term.
In a controversial 1954 judgement, Pakistani Chief Justice Muhammed Munir validated the extra-constitutional use of emergency powers by Governor General, Ghulam Muhammad when he cited Bracton’s maxim, ‘that which is otherwise not lawful is made lawful by necessity’.
The Supreme Court of Canada equally applied this doctrine in the 1998 Reference re Remuneration of Judges of the Provincial Court case. In International law, the exception is allowed by the UN’s International Law Commission(ILC) to be used by a state facing “grave and imminent peril”. In Nigeria, the National Assembly on February 9, 2010, adopted the doctrine of necessity to empower Vice President Goodluck Jonathan to serve as acting president to resolve the constitutional breach caused by the absence of the ailing President Musa Yar’Adua for failing to transmit a letter to the National Assembly and hand over to his deputy in line with Section 145 of the Constitution.
The history of the State of Emergency in Nigerian politics dates back to 1962 when large-scale irregularities in the country’s first real census led to a crisis in Western Nigeria. On October 1, Prime Minister Balewa in a nationwide broadcast told the nation of alleged plans by disgruntled politicians to forcefully overthrow the legitimate government in Nigeria.
This was followed by a blanket ban on public meetings and processions in the whole of Western Nigeria. On November 2, 1962, Chief Awolowo was formally charged with 26 others with conspiring to overthrow the Federal Government.
President Olusegun Obasanjo on May 18, 2004, declared a state of emergency. Citing relevant sections of the Constitution, especially Section 305 of the 1999 Constitution, the president imposed a state of emergency in Plateau State leading to the suspension of the elected Governor Joshua Dariye and the Plateau State House of Assembly.
The governor was accused of failing to act to stop the bloodbath and violence between the Plateau State’s Muslim and Christian communities.
President Goodluck Jonathan equally declared a State of Emergency firstly in some local governments in Borno and Plateau States and subsequently a full declaration in Borno, Adamawa, and Yobe States.
It is pertinent to note that even in declaring a state of emergency, it should be done within the confines of the law. While the doctrine of necessity can provide the basis for the emergency rule, the measures taken must be within the ambit of the rule of law and the Constitution.
Thus, even if the security of the nation is threatened, the International Court of Justice had stated in the Berlin Declaration that: States must not suspend rights which are non-derogable under treaty or customary law. States must ensure that any derogation from a right subject to derogation during an emergency is temporary, strictly necessary and proportionate to meet a specific threat and does not discriminate on the grounds of race, colour, gender, sexual orientation, religion, language, political or other opinion, national, social or ethnic origin, property, birth or other status.
The Supreme Court of Nigeria had in its earlier decisions frowned at the attitude of removing democratically elected officials of government during the state of emergency. In AG Federation v AG Lagos State(2013)LPELR-20974(SC) the Supreme Court maintained that the declaration of emergency does not empower the President to remove elected officials.
In AG Plateau v AG Federation(2006) the Supreme Court invalidated the removal of elected officials during a state of emergency in Plateau State. One therefore where the President derived its power to remove democratically elected officials of government albeit temporarily.
In Stitch v. A.G Federation, the court observed that its attitude has been to protect the rights of the citizens even in times of war when the defence of the realm had all been paramount. Equally, a retired Justice of the Supreme Court, Justice Olabode Rhodes- Vivour who participated in the Dokunbo Asari v FRN Case stated recently that “no one’s right should be denied unless national security is “visibly threatened”.
He argued that no one should be deprived of his rights on the whims and fancy of anyone in authority. In Dokubo-Asari v. the Federal Republic of Nigeria; the Supreme Court of Nigeria per Justice Mahmoud Mohammed had stated: that “where national security is threatened or there is a real likelihood of its being threatened, human rights or individual rights of those responsible take second place.
Human rights or individual rights must be suspended until national security can be protected or taken care of”.
No doubt the rule of law is sine qua non to good governance and it requires ‘we remove the private will of public officials as much as possible from the administration of Justice’.
Those in public service should ensure that they promote the common good when they wield state power. The parties in the Rivers conundrum failed to consider this.
The President based his decision on the fact that “both the House and the governor have not been able to work together” and that “Both of them do not realise that they are in office to work together for the peace and good governance of the state”.
We hope that the President will encourage his Minister of FCT as pleaded by PANDEF to reconcile his differences with his estranged godson for the interest of the Rivers people. The President was completely silent on the overt and covert involvement and intervention of his cabinet Minister.
Despite all the principles highlighted, the application of the rule of law even in declaring a state of emergency is of utmost importance.
As was stated by Donaldson J in Lee v. Secretary of State for Education and Science the rule of law takes precedence above all else.
The court also states: “The duty of the courts, and it is one in which they will never shirk, is to be vigilant to ensure that the government of this country, whether be it local or national, is conducted by the will of the parliament, that is to say by the law”.
The President’s declaration is for six months at the first instance where Rivers State and its indigenes are to be governed by those who were never elected to govern them.
The President must immediately transmit the copies of the Official Gazette of the Government of the Federation containing the proclamation including 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.
The legislature is the bastion of democracy and the amalgam of the Nigerian people. There should be no extension whatsoever because a state of emergency rule is meant to be short-lived.
It shall cease to have effect 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 publication there is no resolution supported by a two-thirds majority of all members of each House of the National Assembly approving the Proclamation. We are in a democracy thus, there should be no deployment of an army of occupation which will be against democratic tenets
JOSEPH EKPE EDET is the Head of the Department, of Jurisprudence and International Law
University of Calabar. .