State of Emergency in Rivers State: A Legal Analysis on the Doctrine of Necessity and the Constitution

The declaration of a state of emergency in Rivers State by President Bola Ahmed Tinubu has provoked mixed reactions from various stakeholder...


The declaration of a state of emergency in Rivers State by President Bola Ahmed Tinubu has provoked mixed reactions from various stakeholders across the country. As a legal scholar, I have been contacted by various quarters to issue an unbiased but legal opinion on the trending issue. As a result, I have decided to provide an apolitical legal examination in light of its constitutional foundation, the Doctrine of Necessity, and comparative insights from other democratic countries. This legal opinion aims to underscore the significance of the state of emergency, politely address the criticisms from stakeholders, and provide guidance for the peaceful resolution of the conflicts in Rivers State.

The Constitutional Basis for the State of Emergency

The state of emergency invoked in Rivers State by the Federal Government can be legally said to have derived its constitutional authority under Section 305 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).[1] Specifically, Section 305(1) empowers the President to issue a proclamation of emergency.[2] Furthermore, Subsection 3 of Section 305 of the Constitution elaborates on circumstances that can warrant the declaration of emergency rule, such as threats to public order, security, or the economy of the country.[3] In addition, the breakdown of public order, safety concerns, and threats to critical national facilities, including the vandalization of the Trans-Niger Pipeline on the 17th of March 2025,[4] which has significant economic implications, justify the invocation of Section 305 by the President.

Moreover, the constitutional validity of the declaration or the proclamation of the state of emergency in the oil-rich South-South state was ensured by the National Assembly's approval,[5] as mandated under Section 305(6), which is essential.[6] As required in a democratic society, in order to balance executive power with accountability, the declaration would lack legal force without legislative endorsement.

The destruction of the Trans-Niger Pipeline in Rivers State, which is estimated to cost the nation about $14 million (approximately, 21,700,000,000 Naira) daily in revenue,[7] alongside the ongoing political impasse between the governor of the state, Sir Siminalayi Fubara, and the 27 legislators of the State House of Assembly, represented an existential threat to Nigeria's economic and political stability,[8] which necessitated immediate and decisive measures suitable for any well-meaning leader at the Federal level to employ.

Doctrine of Necessity: Justification for Extraordinary Measures

The Doctrine of Necessity provides a legal principle for actions outside regular constitutional frameworks when essential to prevent grave harm. Necessitas non habet legem. The Supreme Court of Nigeria in A G Federation v Abubakar[9] upheld the use of this doctrine during crisis periods by emphasizing proportionality and necessity. Lex non cogit ad impossibilia. The Doctrine of Necessity as a legal principle operates within the following parameters:

1. Existence of an Emergency: The threat to national security and crucial oil infrastructure in Rivers State constitutes a grave emergency. Pipeline vandalization, costing the economy millions of dollars daily, satisfies the high standard of need.

2. Proportionality: The suspension of the Governor, his Deputy, and the Legislature aligns with proportional actions to repair the breakdown in governance and avert additional turmoil.

3. Absence of Alternatives: Traditional dispute resolution methods, such as legislative discussion or court action, would prove ineffective given the urgency and intensity of the problem. Immediate action is essential to stabilize the state.

In the case of Rivers State, there were series of issues which the President cited as the reason for adopting the state of emergency to calm the situation. Amongst the issues raised were an unending political crisis, including the impeachment threats against the Governor of the state, Sir Siminalayi Fubara, and his Deputy, Prof. Ngozi Odu. This issue, where the governor and the honourable legislators are both part of the reason for the threats, necessitated a neutral administrative leadership to restore governance. This action goes in line with the legal maxim, Nemo judex in causa sua in order to avoid conflict as to who investigate who. Additionally, there were issues of security and economic threats, such as pipeline vandalism and potential violence, which demanded immediate intervention to prevent further destabilization. Furthermore, there was proportionality in governance, which includes the temporary suspension of elected officials, though significant, that aligns with the gravity of the crisis, as seen in precedents like Lakanmi v A G Western Region[10].

The Doctrine of Necessity has similarly been applied in other democratic countries, demonstrating its legitimacy in addressing extraordinary circumstances.

Comparative Insights from Democratic Countries

Apart from Nigeria, other nations practicing democracy have invoked the Doctrine of Necessity or declared states of emergency during national crises. They include:[11] 

Pakistan (1954 and 1977):

In 1954, the Doctrine of Necessity was upheld by Chief Justice Muhammad Munir, validating the Governor-General's dissolution of the Constituent Assembly. Also, in 1977, General Zia-ul-Haq's military coup was justified under necessity to restore order during political unrest. Pakistan's application of the Doctrine of Necessity maintained governance continuity and avoided constitutional paralysis during the period of emergencies.

India (1975–1977 Emergency Period):

The Indian Prime Minister Indira Gandhi invoked state of emergency powers to address civil unrest, citing national security concerns. The enforcement of the state of emergency in India during that period brought about reforms but drew criticism for curtailing democratic freedoms.

Australia (1975 Constitutional Crisis):

The Governor-General dismissed Prime Minister Gough Whitlam amidst parliamentary deadlock, invoking necessity to restore governance. The swift resolution of the crisis upheld government functionality.

Grenada (1983):

Following political assassinations, emergency powers were used to restore stability and governance with U.S. intervention. The stabilization of the government prevented widespread anarchy.

Fiji (2000 and 2006):

Coups justified through necessity enabled interim governments to manage political and ethnic crises. The restoration of order and governance in volatile conditions was the benefit.

These cases illustrate the use of necessity to address governance failures and national emergencies while highlighting the importance of proportionality and accountability.

Responses to Stakeholders' Criticisms

Several very important stakeholders have raised objections to the state of emergency in Rivers State. Their concerns are addressed below:

1.    Nigerian Bar Association (NBA): The NBA criticized the suspension of elected officials as unconstitutional. Response: While the Constitution does not explicitly provide for such suspensions, the Doctrine of Necessity permits temporary deviations when essential to restore governance and public order (A G Federation v Abubakar).[12] Judicial oversight ensures these measures remain proportional.

2.    People's Democratic Party (PDP): The PDP alleged that the emergency rule was politically motivated. Response: The economic and security threats posed by pipeline vandalism and political stalemates necessitated impartial leadership to stabilize the state, as authorized under Section 305.[13]

3.    Governor Siminalayi Fubara: Governor Fubara contested the necessity of the emergency measures, claiming Rivers State was peaceful. Response: While the Governor's perspective is noted, the economic sabotage of the Trans-Niger Pipeline and unresolved political conflict warranted intervention to protect national interests.

4.    Northern Elders Forum (NEF): The NEF expressed concerns about democratic norms. Response: The temporary nature of the state of emergency ensures governance continuity and respects democratic principles. The Doctrine of Necessity supports these actions during crises.

5.    Former President Goodluck Jonathan: Jonathan criticized the suspension of elected officials, stating that it could tarnish Nigeria's image and undermine democracy.Response: Former President Jonathan's emphasis on Nigeria's image is commendable. However, the state of emergency is a temporary measure aimed at restoring governance and security. The appointment of a neutral administrator ensures impartial leadership during this period. The Supreme Court in Lakanmi v A G Western Region[14] (1971) 1 UILR 201 recognized that extraordinary circumstances might necessitate deviations from normal constitutional procedures to safeguard national interests.

6.    Former Presidential Candidate Musa Kwankwaso: Kwankwaso criticized the declaration as unconstitutional and warned against setting a dangerous precedent. Response: Kwankwaso's caution about precedents is valid. However, the state of emergency is a response to specific, extraordinary circumstances. The President's actions are subject to legislative approval under Section 305(6), ensuring checks and balances. The intervention is not intended to undermine democracy but to stabilize Rivers State and protect national interests.

7.    Chief Anabs Sara-Igbe (PANDEF): Sara-Igbe argued that the state of emergency was politically motivated and exceeded constitutional authority. Response: Sara-Igbe's concerns about political motivations are understandable. However, the President's actions are grounded in the need to address security threats and governance breakdowns. The Doctrine of Necessity, as upheld in A G Federation v Abubakar, provides a legal basis for such measures when traditional mechanisms are insufficient to address the crisis.

Recommendation

My advice to the people of Rivers State, political actors, and stakeholders is that they should foster peace and cooperation during this critical period. The youths should ensure to maintain peace, respect the rule of law, and collaborate with the administrator and federal agencies to restore stability.

The political actors and stakeholders should prioritize dialogue and negotiation to resolve disputes amicably and avoid inflammatory rhetoric, focusing on the welfare of the state.

The Governor and State House of Assembly should embrace reconciliation and cooperate with federal interventions. Additionally, they should utilize neutral mediators to address grievances and restore trust.

The Federal Government should ensure transparency and provide regular updates on emergency measures. Furthermore, the Federal Government should work towards resolving the crisis within the stipulated timeframe to restore democratic governance.

Conclusion

Overall, the state of emergency in Rivers State is both a constitutional and practical necessity to address the challenges posed by the political conflict, economic sabotage, and security threats that have arisen within the state in recent times. Its legal foundation under Section 305 of the 1999 Constitution and its justification through the Doctrine of Necessity underscore the legitimacy of the measures taken so far by the Federal Government.

 

Finally, comparative examples from other democracies further validated the necessity of such interventions during crises of such kind. By fostering collaboration and upholding accountability, Rivers State can emerge stronger and more stable, ensuring the preservation of Nigeria's democratic integrity.

 



[1] Constitution of the Federal Republic of Nigeria, 1999, s 305.

[2] Ibid, s 305(1).

[3] Ibid, s 305(3)

[4] Arise News, ‘Explosion Hits Trans-Niger Pipeline in Rivers State’ (18 March 2025) <https://www.arise.tv/explosion-hits-trans-niger-pipeline-in-rivers-state/> accessed 23 March 2025.

[5] Deji Elumoye and others, ‘Rivers: As National Assembly Ratifies Emergency Declaration, Tinubu Hails’ The Punch, (21 March 2025) <https://www.thisdaylive.com/index.php/2025/03/21/rivers-as-national-assembly-ratifies-emergency-declaration-tinubu-hails/> accessed 23 March 2025.

[6] Constitution (n 1), s 305(6).

[7] Eniola Akinkuotu, ‘Pipeline explosion threatens Nigerian oil exports amid Rivers State political crisis’ (18 March 2025) < https://www.theafricareport.com/379327/pipeline-explosion-threatens-nigerian-oil-exports-amid-rivers-state-political-crisis/> accessed 23 March 2025.

[8] Sahara Reporters, ‘Governor Fubara Collapsed Rivers Assembly, Destroyed Govt Over Fear Of Impeachment —Supreme Court’ (5 March 2025)  <https://saharareporters.com/2025/03/05/governor-fubara-collapsed-rivers-assembly-destroyed-govt-over-fear-impeachment-supreme> accessed 23 March 2025.

[9] A G Federation v Abubakar [2007] 10 NWLR (Pt. 1041) 1.

[10] Lakanmi v A G Western Region [1971] 1 UILR 201.

[11] Wickramaratne Jayampathy, 'Doctrine of Necessity: Stumbling Against the Same Stone in Pakistan - A Mistake Not to be Emulated in Sri Lanka' (May 12, 2020) <https://ssrn.com/abstract=3598986> accessed 23 March 2025.

[12] Abubakar (n 9).

[13] CFRN 1999, s 305.

[14] Lakanmi v A G Western Region [1971] 1 UILR 201.

Dr. Abraham Ebini, a legal scholar, cybersecurity and software development expert writes from Port Harcourt.

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