By Odo Christian Obinna
Permit me to open this piece with a reality check. A good friend of mine, whom I hold in high esteem, recently lamented that as a law apprentice, you could spend five years of your life—assuming ASUU strikes were generous enough to stay their hands—studying law in a typical Nigerian university, only to step into the real world and discover to your chagrin that Nigerian street is a university of its own.. Our friend here is making a dichotomy between what law is in textbook (he called it “theory,” though I find that term too generous) and the law as practiced—or rather, as it is adulterated by those who are supposed to uphold it.. Another friend of mine expressed a related frustration, but in a more resigned tone. He wondered whether it was normal to feel so exhausted by Nigeria’s endless “happenings” that he does no longer bother to concern himself with the legality of the many “obscenities” that take their turns to play out daily in the country. His frustration was crystallized in a single question: “Does it even matter?”
The uncomfortable truth is that it does not matter—at least, not in the way it should. I, too, have tried my best over the past few weeks to meet every unfolding crisis in Nigeria with stoic indifference. If nothing else, I owe my sanity that much. But Nigeria being what it’s, will always find a way to drag even the most detached observer back into its relentless cycle of “you must notice me news.” The latest broadcast message from His Excellency, President Bola Ahmed Tinubu, is one such news. This will be the first time since President Goodluck Jonathan’s administration a Nigerian leader is invoking emergency powers—a power that, in Nigeria’s history, has often been wielded as a blunt instrument of executive impunity. This time, the oil-rich Rivers State is at the receiving end.
But Mr President didn’t just stop at invoking this power, he followed in the footsteps of his predecessor Olusegun Obasanjo in relieving 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 of their constitutional duties for an initial period of six months. For context, when Obasanjo suspended the governor, deputy governor, and lawmakers of Plateau State in 2004, it was widely criticized as an assault on democratic governance. Ironically, at the time, one of the fiercest critics of that decision was none other than Bola Ahmed Tinubu, then the governor of Lagos State, who condemned the move as a usurpation of state powers. Yet, now that Tinubu sits in the seat of power, history appears to be repeating itself—only this time, he is the one wielding the sledgehammer. The irony is striking, but more striking is how a man’s taste easily changes when it’s convenient for him.
Mr President’s declaration has not only opened floor for debates on the limits of executive power, but has also put to deliberation the motivations behind such a drastic intervention. Some have framed the developments as politics while others see it as a constitutional question. I believe it is both. The power struggle between Governor Siminalayi Fubara and his estranged godfather, “Emperor” Nyesom Wike, is undeniably a political battle. But the manner in which President Bola Ahmed Tinubu has intervened raises deeper constitutional concerns that go beyond mere politics: the overarching reach of federal power in subnational governance, the limits and extent of the power of emergency, and and the sanctity of democratic institutions. I think Mr Fubara made a grave miscalculation, and this was his assumption that President Tinubu would remain neutral in his power tussle with Wike. That assumption, as we have now seen, was gravely misplaced. The events of the past few weeks have played out like the final, decisive blow delivered by powerful forces close to the presidency—forces that seem determined to settle personal and political scores under the guise of maintaining order. If there is one thing I take away from Mr President’s broadcast message, it is that he has been anything but neutral, and if there is one person he is holding a brief for in the fight between “emperor” Wike and Mr Fubara, that person is certainly not Mr Fubara.
While Mr President was generous enough to acknowledge that the crises in Rivers state are as a result of a face-off between two unrelenting parties, it does not take special skills to see who his rhetoric and tone was being positioned as the villain. Fubara was portrayed as a rogue governor, unwilling to compromise or heed calls for peace. He took the blame all through Mr President’s speech. The other party wearing the mask of “emperor” Wike was curiously omitted from Mr. President’s cross hairs. This omission is neither subtle nor accidental. It reads to any right thinking Nigerian as a tacit approval of Wike’s infamous role in the crisis. It is as if the President, in his carefully crafted message, sought to absolve Wike by simply erasing his culpability from the narrative altogether.
Of course, one might argue, and rightly so, that as the sitting governor, Mr Fubara should naturally wear the face of blame for any crack in the state’s stability and peace. However, this reasoning fails to hold up under closer scrutiny. The missing piece in this logic is the fact that Wike is not just any person in Rivers State and for Rivers people. He is a sitting minister in Tinubu’s administration, a federal powerbroker, and the face of the Tinubu-led government in Rivers State and the FCT, where here is minister. Therefore, to treat Wike as though he were merely a former governor with no active stake in the crisis is both dishonest and misleading. The reality is that Wike’s direct involvement in the affairs of Rivers State did not end when he left office—he has continued to exert enormous influence over the state’s political machinery, often at the expense of Fubara’s autonomy as governor.
Testimonies from stakeholders who have met with both warring parties seem to indicate that Fubara was more willing to compromise than Wike. But the FCT “emperor” that wants to rule Rivers State by proxy seems to have reached a point of no return where the only passion that worths anything is teaching his estranged godson a bitter political lesson—even if it means sabotaging the governance of Rivers State. And that is precisely what the people of Rivers State have suffered in this ego-driven battle between two political gladiators. Well, Mr President has intervened with what he believed to be a remedial measure to preserve democratic order, restore good governance, peace, and security.
That is the official justification. But can the suspension of a democratically elected governor and lawmakers truly be reconciled with this supposed intent? If anything, Tinubu’s “remedy” appears more like a deliberate erosion of democratic norms rather than their preservation. It is one thing to intervene in a political crisis, but it is another thing entirely to override the will of the people by removing (temporarily as it may be) elected officials without clear constitutional backing. I understand that motives often hold little legal weight when a person exercises power he or she is legally entitled to, but Mr President has put his own motive in issue by justifying his intervention as a means to preserving democratic order, peace, and security. As such, it is only fair, at least morally, to judge him by it. Was it really about upholding democratic order, peace, and security? And if so, to what extent has he achieved this? If democracy was the concern, how does removing elected representatives—without explicit constitutional authority—advance that goal? Rather than restoring order, this intervention seems to have undermined the very democratic structures it claimed to protect. It looks more like a collusion with one of the parties to thwart democratic governance. It is true that Mr President also claimed he did his best to reconcile the two waring warlords, and while he has my commendation for that, just maybe his “best” was not with the best of intents.
I mean we are talking about Mr President’s own minister here who has willfully defied his peace efforts. In as much as the president does not have control over fights an adult man chooses to concern his precious time with, he at least has control over impression or message such may create for him or his administration.
If Mr President could go as far as “removing” an elected governor where he arguably has no constitutional power, why was it so difficult for him to discipline his own minister—someone over whom he has direct authority? At the very least, a suspension of Wike would have sent a clear moral message of his good intents. Instead, what we witnessed was, to me, a high stakes power play procured with constitutional impunity. This begs many questions. Was Fubara simply caught in a premeditated game designed to end this way? Was his removal always the intended outcome, with the political crisis merely serving as the excuse? Was this about protecting democracy—or was it the president acting as a political enforcer for Wike, Wike’s interest, and by extension, his own interest? If the president’s true goal was stability and democratic preservation, his actions have achieved the opposite, working only to reinforce the dangerous precedent set in motion by his predecessor that threatens the very foundations of constitutional governance as we know it.
Looking at the issue as a constitutional question, it is my view that the 1999 Constitution can be validly described as an evil talisman for the same people trampling it. Its many lacunae often serve as a convenient shield for those who are in the habit of impuning it. This relic of our military past, in many respects, is more notable for its lacunae than its substance. As audacious as the excercise of this power may be, I think that its invocation simpliciter cannot be faulted constitutionally. Section 305 of the Constitution grants the President the authority to declare a state of emergency under the following conditions: when (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 discretion to declare a proclamation of a state of emergency is clearly that of the President and the discretion is only fettered by the conditions listed above. While the specific paragraphs under which the President acted were not disclosed, the circumstances his address crystalized suggest a reliance on paragraphs (c) and (d), which pertain to threatened or actual breakdown of law and order. Although the President has broad discretion in invoking a state of emergency, subsections (4) and (5) of Section 305 impose procedural limitations, particularly in the case of breakdown of law and order (paragraphs (c) and (d) above). Such a proclamation must be at the request of the Governor of the concerned state, supported by a resolution of the state House of Assembly. The only exception is where the governor delays in making the request within a reasonable time. What constitutes or amounts to a “reasonable time” is however not defined, leaving it to the discretion of the president to determine. This lack of clarity creates room for abuse, as the President can subjectively decide when a Governor’s inaction justifies federal intervention.
And what I even consider a much deeper flaw in the emergency powers constitutional jurisprudence is the failure to define the conditions that justify the proclamation of a state of emergency and parameters to guage them. For instance, what constitutes actual breakdown of law and order? At what point would a state be said to have come or crossed that threshold? What parameters should be used to measure an “imminent danger”? Since the drafters of the Constitution chose to leave these crucial questions undefined and fluid, it may be suggestive of their intention to leave it exclusively to executive discretion. As such, the determination of whether or not the conditions for the proclamation of a state of emergency may be exclusively an executive question, outside of judicial review. If that’s the case, then analyses and suppositions like mine and others out there are just academic excercise, as our courts, through a line of cases, have shown their willingness to not fetter executive discretion.
If called upon to determine the legality or otherwise of the president’s decision in this regard, I will stake my last kobo that the court will not concern itself with the merit or correctness of the president’s decision as doing so would amount to “unguarded” foray into an executive matter, which is beyond the scope of judicial review. Instead, it will only concern itself with the manner in which the president reached that decision, that is, with whether the prescribed procedures were followed. From the details available in the President’s address, I can also bet my last kobo that there is no procedural lapse that would render the decision legally questionable.
While it is conceded that the power to proclaim a state of emergency is largely within the President’s discretion, it is essential to examine whether Section 11, particularly subsection (4), of the Constitution imposes any substantive limitations on this discretion. This provision reads: “at any time when any House of Assembly of a State is unable to perform its functions by reason of the situation prevailing in that State, the National Assembly may make such laws for the peace, order and good government of that State with respect to matters on which a House of Assembly may make laws as may appear to the National Assembly to be necessary or expedient until such time as the House of Assembly is able to resume its functions; and any such laws enacted by the National Assembly pursuant to this section shall have effect as if they were laws enacted by the House of Assembly of the State.” The Constitution further clarifies what it means by “unable to perform its function” to mean when the House is unable to hold a meeting and conduct legislative business.
This provision empowers the National Assembly to act as the legislative house of the affected state, performing and conducting legislative business the concerned state’s House of Assembly would ordinarily do. The power given to the National Assembly here is to be activated during an emergency or any other situation that renders the state legislature incapable of functioning. Notably, the language of Section 11(4) does not make the National Assembly’s intervention contingent upon a formal proclamation of a state of emergency by the President. Instead, the phrase “at any time” suggests that the National Assembly can intervene whenever circumstances warrant, irrespective of whether an emergency has been formally declared. The intention of the Constitution is to maintain and preserve public order and security through the National Assembly, a role which is inherent in the power of the National Assembly in Section 4 to make laws for the peace, order and good government of the Federation or any part of the country.
My point exactly by reference to this section that sadly has been overlooked is that while the section does not explicitly curtail the President’s discretion to declare a state of emergency, it can be interpreted as reflecting the drafters’ intent to limit such proclamations to situations where ordinary legislative interventions prove insufficient or practically impossible. This suggests that the government must first exhaust all available legislative and administrative measures before invoking emergency powers. In other words, a state of emergency should be a last resort, employed only when the crisis reaches a level where standard constitutional mechanisms can no longer ensure public order and governance. In short, while the President retains the discretion to declare a state of emergency, it appears that the drafters of the Constitution inserted this section as suggestive that this discretion should not be exercised arbitrarily. There seems to be a preference for legislative solutions where feasible, which best aligns with the principle that emergency powers should not be invoked unless absolutely necessary.
It is, therefore, important that we start exploring other constitutional measures first rather than defaulting to the expansive emergency powers of the president, particularly given the historical pattern of successive administrations using it as a blunt instrument of executive overreach. Looking at the situation in Rivers State, for example, what we have is a typical case of legislative-executive impasse, resulting in a complete paralysis of the state legislature. Such conflicts are not new in our polity nor exclusively peculiar to our system. More importantly, they have never, in themselves, justified the invocation of emergency powers. The drafters of the Constitution anticipated situations like this and provided a remedy in Section 11(4) of the Constitution. Rather than resorting to emergency powers, the appropriate constitutional response should have been for the National Assembly to step in temporarily—exercising its constitutional prerogative—until the Governor and the State Assembly resolve their impasse.
Be that as it may, the President has exercised his discretion. Our focus now is to question the constitutional basis for one of its most controversial aspects: the suspension of democratically elected public office holders. The Constitution deliberately or in its shortsightedness provides for the emergency powers, but it is conspicuously silent on what happens thereafter—particularly regarding the status of elected officeholders during the emergency period. This silence over time has been argued to mean that elected officials can be suspended as an incidental effect of emergency rule in order to give effect to the emergency proclamation. The question at the center of this argument is: how can you allow a Governor and a sole administrator to operate simultaneously without creating an incongruous and unworkable governance structure capable of stripping the proclamation of its essence and purpose?
As convincing as this logic is, it easily runs into a paradox when the proclamation is applied to a national emergency scenario. If we were to apply the same logic uniformly, then we should expect the incidental effect of the proclamation to be the suspension of the president and members of the National Assembly and the appointment of a sole administrator. Clearly, such would not be the intention of the drafters of the Constitution. Safe to say that the appointment of a sole administrator is not a constitutional provision but rather an invention of executive fiat—one that creatively adds to the confusion of the silence of the Constitution in the matter.
Furthermore, several provisions of the Constitution render this suspension or removal unsustainable. Section 1 of the Constitution explicitly affirms the supremacy of the Constitution over all persons, authorities, and laws. Subsection (2) further prohibits any individual or group from taking over the government of Nigeria—or any part thereof—except in accordance with constitutional provisions. In line with this, the Constitution lays out clear processes for electing, appointing, and removing public officials. These include impeachment, resignation, recall, death, and other legitimate constitutional mechanisms. Nowhere does the Constitution provide for the removal or suspension of elected officials through executive fiat. Even in the emergency situation mentioned in Section 11 above, where the National Assembly is empowered to take over a state House of Assembly and make laws as the House ordinarily would, the Constitution expressly prohibits it from removing the Governor or Deputy Governor of the affected state. If the National Assembly—while acting as the temporary legislature—lacks the power to remove a sitting Governor, how then can the President, by mere proclamation, suspend or replace elected officials with unelected administrators? This is a constitutional aberration with no basis in law.
By way of giving my last two kobo, while the Constitution may be silent on what follows a declaration of a state of emergency, this silence should not be misconstrued as granting the President the authority to unilaterally suspend elected officials. Such an interpretation amounts to an unconstitutional coup, one that cannot be reconciled with any express provisions of the Constitution. Some may even argue that previous administrations have followed this path, but precedent does not cure illegality. The fact that executive overreach has been tolerated in the past does not make it lawful. We must not see the current emasculation of Rivers State as merely a local political battle. It is a trial of our entire constitutional democracy. If this executive overreach is allowed to stand, it may embolden future administrations to continue to trample on state autonomy and override the will of the people at will.
*Odo Christian Obinna writes from Ibadan. He can be reached via thegreatcitizen1997@gmail.com
