Rivers State: The Prerogative of the President to Declare a State of Emergency in Nigeria: A Legal Analysis, By Dr. Olukayode Ajulo

Prerogative, plainly put and without mincing words, refers to a special right, power, or privilege that is exclusive to a particular person or authority, especially by virtue of law or position. In governance, it is discretionary powers vested in an official, such as a head of state or President allowing them to take certain actions without requiring approval from another authority.

For example, the prerogative of the President of Nigeria to declare a state of emergency means that the President has the legal authority to make such a declaration under specific conditions as outlined in the Constitution. However, in Nigeria, this power is not absolute; it is subject to legislative oversight and judicial review to prevent abuse.

The prerogative of the President of Nigeria to declare a state of emergency is a constitutional safeguard designed to address threats to national security, public order, and governance stability. This power, while essential in extraordinary circumstances, must be exercised within the framework of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and is subject to legislative oversight, judicial review, and international human rights obligations. A thorough legal analysis of this prerogative is necessary to ensure that its use aligns with democratic principles and does not undermine civil liberties.

The legal foundation for declaring a state of emergency is found in Section 305 of the 1999 Constitution, which outlines the conditions under which the President may invoke emergency powers. These conditions include war, insurrection, breakdown of public order, natural disasters, or any other significant threat that endangers the sovereignty and stability of Nigeria. The provision specifies that such a declaration must be preceded by consultation with the Council of State and formally communicated to the National Assembly. This constitutional requirement ensures that emergency declarations are not solely at the discretion of the President but are subject to institutional checks.

For the proclamation to take effect, it must be laid before the National Assembly within two days (if the legislature is in session) or within ten days (if it is not in session). The National Assembly then has a maximum of ten days to approve or reject the proclamation, failing which the emergency ceases to have effect. If approved, the state of emergency is valid for six months but can be extended by the National Assembly if necessary. However, the Assembly retains the power to revoke the declaration at any time should it find the circumstances no longer justify emergency rule. This legislative control serves as an essential safeguard against arbitrary executive action.

The Nigerian judiciary plays a critical role in interpreting and enforcing the constitutional boundaries of emergency powers. In A.G. Abia State v. A.G. Federation (2001) 11 NWLR (Pt. 725) 689, the Supreme Court reaffirmed that the President’s discretion in declaring a state of emergency is not absolute but must be exercised within the confines of the Constitution. The Court held that any action taken under a state of emergency must be proportional to the threat being addressed and must not serve as a pretext for political or authoritarian control. Other judicial pronouncements have reinforced that while emergency powers may be necessary in governance, they must not violate fundamental rights beyond what is reasonably justifiable in a democratic society.

A state of emergency has direct implications for fundamental rights and civil liberties. Section 45 of the Constitution permits the restriction of certain rights, such as freedom of movement, assembly, and expression, where necessary to protect national security, public safety, or public health. However, any suspension or derogation from fundamental rights must be narrowly tailored to the specific crisis and must not amount to a blanket violation of human rights. International human rights instruments, such as the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (ACHPR), to which Nigeria is a signatory, emphasize that states of emergency must not justify extrajudicial actions, indefinite detentions, or suppression of political dissent.

The doctrine of constitutionalism dictates that government power, even in emergencies, must be exercised within the limits of the law. This principle ensures that emergency governance does not evolve into authoritarian rule. The separation of powers between the executive, legislative, and judicial arms of government provides institutional checks against the abuse of emergency powers. The National Assembly’s ratification and revocation powers, coupled with judicial review, prevent the excessive concentration of power in the executive branch.

The social contract theory, which underpins modern democratic governance, suggests that emergency rule must be justified by the consent of the governed and should be aimed at preserving public welfare rather than consolidating executive power. Thus, while a state of emergency permits certain restrictions on rights, these must be temporary, necessary, and proportionate to the crisis at hand. Any deviation from these principles risks undermining public trust in governance and eroding democratic values.

Historically, Nigeria has witnessed the use of emergency powers in various instances. On May 18, 2004, then-President Olusegun Obasanjo declared a state of emergency in Plateau State due to escalating communal violence, leading to the suspension of the Governor and State House of Assembly. A similar occurrence took place on October 19, 2006, in Ekiti State, where political unrest prompted the federal government to take extraordinary measures. Likewise, in 2013, President Goodluck Jonathan declared a state of emergency in Borno, Yobe, and Adamawa States to combat the Boko Haram insurgency. These instances underscore the necessity of emergency powers in crisis management while also highlighting the risks of political misuse, reinforcing the need for clear constitutional safeguards to prevent executive overreach.

Beyond national considerations, emergency declarations must align with Nigeria’s obligations under international law. The United Nations Human Rights Committee has established that states of emergency should be publicly declared, time-bound, and subject to judicial and legislative oversight. The African Commission on Human and Peoples’ Rights has also ruled that emergency measures must not violate non-derogable rights, such as the right to life and freedom from torture. Nigeria, as a party to these human rights treaties, must ensure that emergency governance does not contravene its international commitments.

The President’s prerogative to declare a state of emergency is a vital constitutional mechanism designed to safeguard national stability in times of crisis. However, its exercise must remain firmly within the boundaries of the law, subject to legislative scrutiny, judicial oversight, and international human rights standards. While emergency governance may necessitate temporary restrictions on rights, such measures must be proportionate, necessary, and subject to review. Upholding these safeguards ensures that emergency powers serve their intended purpose, protecting national security and public order, without compromising democratic principles and constitutional governance.

In the case of Rivers State, beyond concerns of constitutional breaches and political unrest, the President has also cited security reports detailing disturbing incidents of pipeline vandalism by militants. A key point of contention is the failure of the embattled Governor to take decisive action to curtail these activities, further justifying federal intervention.

The President has formally declared the state of emergency, stating that the proclamation has been published in the Federal Gazette, with a copy forwarded to the National Assembly in accordance with constitutional provisions. This procedural step ensures transparency and compliance with legal requirements.

Ultimately, while the President has exercised his prerogative to declare a state of emergency in what he considered the greater interest of national security and stability, the final decision now rests with the National Assembly. It is their responsibility to scrutinize the necessity of the declaration, assess its justifications, and determine whether to grant the required approval and documentation for its full implementation.