President Bola Tinubu’s declaration of a state of emergency in Rivers State and the subsequent suspension of Governor Siminalayi Fubara, his deputy, and members of the Rivers State House of Assembly have sparked a heated debate about the constitutionality of his actions. The president cited Section 305 of the 1999 Constitution of Nigeria (as amended) as the legal basis for his decision. To determine whether his actions were constitutional, it is necessary to analyze Section 305 and other relevant provisions of the Constitution.

Section 305 of the 1999 Constitution: State of Emergency Provisions

Section 305 outlines the conditions under which the president can declare a state of emergency in a state or the entire federation. The key provisions are as follows:

1. Grounds for Declaration (Section 305(1)):

   - A state of emergency can be declared if the federation or any part of it is threatened by war or actual breakdown of public order and safety, to the extent that the government cannot function.

   - It can also be declared in cases of natural disasters or public danger that threaten the existence of the federation or any part of it.

2. Procedure for Declaration (Section 305(2)):

   - The president must publish a proclamation in the Official Gazette declaring the state of emergency.

   - The president must immediately transmit copies of the proclamation to the President of the Senate and the Speaker of the House of Representatives.

   - The National Assembly must convene within two days to consider the proclamation and decide whether to approve it by a simple majority vote in both chambers.

3. Duration of Emergency (Section 305(3)):

   - A state of emergency initially lasts for six months, but it can be extended by the National Assembly for periods not exceeding six months at a time.

4. Governor’s Role (Section 305(5)):

   - If the emergency affects only a state, the governor of that state must request the president to issue the proclamation, except in cases where the governor is unable to make such a request.

Key Issues in Tinubu’s Declaration

1. Was the Threshold for a State of Emergency Met?

   - Section 305 requires a threat to public order and safety or a breakdown of governance that prevents the government from functioning. While Rivers State has been embroiled in a political crisis, including clashes between pro-Wike and pro-Fubara factions, it is debatable whether the situation meets the threshold of a "breakdown of public order" as envisaged by the Constitution. The crisis, though severe, has not escalated to the level of widespread violence or anarchy that would justify a state of emergency.

2. Did the President Follow the Correct Procedure?

   - Section 305(2) requires the president to transmit the proclamation to the National Assembly for approval. While President Tinubu stated that the declaration had been published in the Federal Gazette and that it has been forwarded to the National Assembly

3. Was the Governor’s Consent Sought?

   - Section 305(5) requires the governor of the affected state to request the proclamation unless the governor is unable to do so. In this case, Governor Fubara did not request the state of emergency, and there is no evidence to suggest that he was unable to make such a request. This raises questions about the legality of the president’s unilateral action.

4. Suspension of Elected Officials:

   - Section 305 does not explicitly grant the president the power to suspend elected officials, such as a governor, deputy governor, or state legislators. The suspension of these officials appears to be an extra-constitutional measure not supported by the text of the Constitution.

   - The Constitution provides specific procedures for the removal of a governor, such as impeachment by the state House of Assembly (Section 188) or judicial intervention. The president’s suspension of Governor Fubara and other officials bypasses these constitutional processes and undermines the principle of federalism and the autonomy of state governments.

Other Relevant Constitutional Provisions

1. Section 5: Executive Powers of the President:

   - The president’s executive powers are limited to matters within the exclusive legislative list (federal jurisdiction). The suspension of state officials falls under the residual legislative list, which is within the purview of state governments. Therefore, the president’s actions exceed his constitutional authority.

2. Section 11: Federal Intervention in State Affairs:

   - Section 11 allows the National Assembly to make laws for the peace, order, and good governance of a state in cases of emergency. However, this provision does not grant the president the power to suspend state officials or take over the functions of a state government.

3. Section 188: Impeachment of a Governor:

   - The Constitution provides a clear process for the removal of a governor through impeachment by the state House of Assembly. The president’s suspension of Governor Fubara bypasses this process and violates the principle of separation of powers.

Conclusion: Was President Tinubu’s Action Constitutional?

Based on the analysis of Section 305 and other relevant provisions of the 1999 Constitution, President Tinubu’s declaration of a state of emergency and suspension of elected officials in Rivers State appear to be unconstitutional for the following reasons:

1. The threshold for declaring a state of emergency under Section 305 was not met, as the political crisis in Rivers State, while concerning, does not constitute a breakdown of public order that prevents the government from functioning.

2. The president’s suspension of elected officials, including the governor, deputy governor, and state legislators, has no basis in the Constitution. The Constitution provides specific procedures for the removal of state officials, which were not followed in this case.

3. The president’s actions undermine the principles of federalism and separation of powers, as they encroach on the autonomy of state governments and bypass constitutional processes for resolving political disputes.

In summary, while the political crisis in Rivers State requires urgent resolution, President Tinubu’s actions appear to overstep the constitutional limits of his powers. The suspension of elected officials and the unilateral declaration of a state of emergency without following due process raise serious legal and constitutional concerns. The matter is likely to be challenged in court, and the judiciary will play a critical role in determining the legality of the president’s actions.