THE ILLEGALITY OF SUSPENDING ELECTED OFFICIALS
A state of emergency does not equate to the dissolution of democratic structures, argues OPATOLA VICTOR
President Bola Tinubu’s recent declaration of a state of emergency in Rivers State, accompanied by the suspension of Governor Siminalayi Fubara, his deputy, and the entire State House of Assembly for six months, raises critical constitutional and legal concerns. While Section 305 of the 1999 Constitution empowers the President to declare a state of emergency under specific circumstances, it does not grant the authority to suspend elected state officials or dissolve legislative bodies. This action echoes past instances of executive overreach, rekindling debates on federalism, constitutionalism, and the rule of law in Nigeria.
The Nigerian Constitution was designed to uphold democratic governance by delineating the powers of the federal and state governments. The removal of elected officials outside the prescribed constitutional process directly contravenes the principles enshrined in the 1999 Constitution. The entire tenor of Section 11, which deals with emergency powers, suggests that a state of emergency is intended to be a cooperative mechanism between the federal and state governments, rather than a justification for the unilateral dissolution of state institutions. The Constitution does not provide for the removal of state officials due to an emergency declaration. Legal scholars such as Prof. Itse Sagay, late FRA Williams, Prof. Ben Nwabueze have long argued that the Constitution envisages a state of emergency as a temporary measure to restore order while maintaining the existing democratic structures within an affected state. The phrase “subject to the provisions of this Constitution,” which opens Section 305, signifies that any action taken under this section must align with other constitutional provisions. The grounds for the removal of a governor, deputy governor, or members of the House of Assembly are clearly laid out in the Constitution, and none of them include a declaration of a state of emergency as a valid reason for removal. The President’s actions, therefore, lack a clear constitutional basis. The retention of state functionaries is not only implied but also necessary for the legal continuity of governance during a state of emergency. If a governor were to formally request a state of emergency, which the Constitution permits the Governor to do, it would be paradoxical for the same action to result in his own removal. Similarly, House of Assembly members who must approve such a request would not do so if it meant their own displacement. The framers of the Constitution clearly envisioned a scenario where state functionaries continue to function, even in times of crisis.
This is not the first time Nigeria has witnessed such a contentious approach to emergency powers. The precedent was set in 2004 when President Olusegun Obasanjo declared a state of emergency in Plateau State and removed the governor, deputy governor, and House of Assembly members, installing an administrator instead. This move was widely criticized as unconstitutional, yet it was not successfully challenged in court. The Supreme Court, when presented with an opportunity to rule on the matter in Plateau State v. Attorney General of the Federation, avoided making a definitive pronouncement, leaving the issue unresolved. Similarly, President Goodluck Jonathan declared a state of emergency in Borno, Yobe, and Adamawa states in 2013. Unlike Obasanjo, Jonathan retained the elected state officials, leading some commentators to argue that his approach was a deviation from past precedent and not far-reaching enough. However, a proper reading of the Constitution supports Jonathan’s approach, as it preserved the integrity of state institutions while allowing for necessary federal intervention. His decision aligned with the cooperative nature of emergency powers as envisioned by the Constitution.
The argument that a declaration of a state of emergency automatically suspends state functionaries is untenable. If the framers of the Constitution had intended for such drastic measures, they would have explicitly stated so. The provision in Section 305(4), which allows a governor to request a state of emergency, inherently assumes that the governor will remain in office to make such a request. If a state of emergency necessitated the removal of the governor, it would be counterintuitive for the Constitution to grant the governor a role in the process.
The argument for suspending state officials often hinges on the claim that state governments are incapable of maintaining law and order, necessitating federal intervention. However, this reasoning is flawed. State governments have limited control over security agencies, as the armed forces and police remain under the federal government’s command. The Supreme Court’s decision in Attorney General of Anambra State v. Attorney General of the Federation reaffirmed that while governors may issue directives to Commissioners of Police, the ultimate authority rests with the President or his designated minister. Given this framework, any failure to maintain public order is more attributable to the federal government than to state officials, making their removal an unjustified punitive measure.
Furthermore, scenarios where a state of emergency is declared due to natural disasters rather than security concerns. If a state were to experience a catastrophic flood or earthquake, would the governor and House of Assembly members be removed simply because a crisis had unfolded? The absurdity of such an outcome underscores the constitutional inconsistency of suspending elected officials under an emergency proclamation. The Constitution does not provide for the appointment of administrators in place of elected officials under any circumstance, reinforcing the argument that a state of emergency does not equate to the dissolution of democratic structures.
Despite this clear constitutional position, past administrations have leveraged emergency declarations to suppress political opposition. President Obasanjo’s actions in Plateau and Ekiti states, widely regarded as unconstitutional, followed the precedent set in 1962 when the federal government imposed emergency rule in the Western Region, culminating in the infamous case of Adegbenro v. Akintola. These actions, justified under the now-defunct Emergency Powers Act of 1961, have no legal standing under the 1999 Constitution, which contains no provisions for appointing administrators to replace elected state officials.
It is significant to note that the Constitution explicitly restricts the National Assembly’s authority in this regard. Section 11(4) prohibits the National Assembly from removing a state governor or deputy governor from office. The proviso to this section underscores that legislative approval of a state of emergency does not extend to sanctioning the removal of state functionaries. Therefore, any proclamation that includes such provisions is unconstitutional and beyond the legislative competence of the National Assembly to endorse.
The Tinubu administration’s decision to suspend the governor, deputy governor, and the State House of Assembly not only violates constitutional provisions but also sets a dangerous precedent for future federal overreach. If left unchallenged, this could pave the way for a pattern where the President can unilaterally remove state officials under the guise of restoring order. Such a move weakens Nigeria’s federal structure and undermines democratic governance.
The Supreme Court’s past reluctance to rule definitively on this issue has emboldened successive governments to exploit emergency declarations for political purposes. Prof. Sagay have criticized the Supreme Court’s reluctance to decide on the matter when it had the opportunity and he described it as a missed opportunity to reaffirm Nigeria’s federal structure and the limits of executive authority. The judiciary must seize any opportunity to correct this constitutional anomaly and reaffirm the limits of executive power. A ruling that unequivocally prohibits the removal of state officials under emergency rule would strengthen Nigeria’s democratic institutions and prevent further constitutional violations.
It is important for civil society organizations, legal practitioners, and the general public to demand adherence to constitutional provisions. The judiciary must be proactive in addressing this issue, ensuring that no President—present or future—can abuse emergency powers to achieve political objectives. The rule of law must prevail over executive expediency.
The removal of elected state officials under emergency rule is not supported by the Nigerian Constitution and represents an overreach of federal authority. The Constitution provides clear procedures for the removal of governors, deputy governors, and state legislators, none of which include emergency declarations. The actions taken in Rivers State mirror past abuses of executive power, which were widely criticized but never conclusively addressed by the judiciary.
If democracy is to be preserved, there must be a firm rejection of any attempt to undermine state autonomy through unconstitutional means. The federal government must respect the principles of federalism and the rule of law, ensuring that emergency declarations remain a mechanism for restoring order rather than a tool for political maneuvering. The actions in Rivers State should serve as a wake-up call for Nigerians to demand strict adherence to constitutional provisions and resist any encroachment on democratic governance.
Victor is National Coordinator, Lawyers for Civil Liberties and can be reached via victor@lacivler.org
