Inadequacies in Section 305 of 1999 Constitution (as amended): Dealing with declaration of state of emergency

By Shamsi Ubale Jibril

State of emergency mainly entails the suspension of normal law and order procedures and the introduction of strict controls of the population, usually involving armed forces, so that a crisis or some other factors out of the ordinary can be contained.

Ignoring variations in nomenclature, nations are empowered either by their constitutions or some other national legislations to declare state of emergency when the country or any part thereof is at war, there is breakdown of public order, imminent fear of breakdown of law and order, occurrence or imminent danger of natural disaster or some other danger which clearly constitute a threat to the existence of the Federation.

The Constitution of the Federal Republic of Nigeria 1999 (as amended), as well as its predecessors have clearly laid down the conditions under which state of emergency can be declared, as well as the detailed procedure of the declaration.

By Section 305 of the 1999 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, subject to 2/3 majority resolution of the senate and House of Representatives approving such measures.

The President is empowered to make such declaration where:

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 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.

The determination of the existence of any of the above circumstances is left to the President to decide, and he may not face any form of restriction in making the declaration. The only possible limitation is where the National Assembly refuses to approve of the declaration, which is quite inlikely under the current settings.

However, none of the Nigerian Constitutions state the extent of the powers of the Federal Government in administering the affected constituent part (State or Region).

Prior to 2011, the Federal Government after declaring state of emergency, went ahead to displace state government institutions/functionaries of the affected state/region. In 1962, Dr Majekudomi was appointed administrator in the Western Region, while during the President Obasanjo era, General Chris Ali and Tunji Olurin were appointed administrators of Plateau and Ekiti States respectively.

However, in 2011 and 2014 when President Goodluck Jonathan declared state of emergency in some parts of the federation, he departed from this precedent and retained the State Governors and Houses of Assembly. This was criticized as not being far reaching enough.

An opportunity to resolve the dispute as to whether the President could replace state functionaries during state of emergency arose in the Supreme Court in the case of Plateau State of Nigeria & Ano v Attorney General of the Federation (2006) NWLR pt 968 p. 346, but the court avoided pronouncement on this live issue on technical g round.

There is therefore a huge gap on the extent of the powers of the President during period of state of emergency. With its chequared history on state of emergency implementation, the USA passed the National Emergency Act 1976, which clearly provide in detail, how the President could implement State of Emergency.

Nobody is in doubt as to the extent of the President’s power during state of emergency in USA.On the 18th March, 2025, the President of the federal Republic of Nigeria declared a state of emergency in Rivers State suspending the Governor of the State, the Deputy Governor and the State House of Assembly for an initial period of 6 months.

There is no doubt that the President has the power to declare a state of emergency in Rivers state if any of the conditions highlighted above exists. However, in the exercise of this declaration, does the President have the power to suspend a democratically elected governor, deputy governor and a whole house od assembly of a state and replace them with a sole administrator appointed by the President?

It should not be forgotten that section 1 (2) of the Constitution provides: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.In the absence of clear provisions of the Constitution validating the suspensions and how the state can be democratically governed within this period, I am of the firm view that this declaration can challenged in court, and be set aside.

This will put to rest the profound uncertainty in the import and effects of declaration of state of emergency under Nigerian law, and to obviate the tendency using such declaration to score a political goal, no matter how obscure.

Shamsi Ubale Jibril can be reached via danjaji2020@yahoo.com.