‘Declaration Of State Of Emergency On Insecurity Doesn’t Give Govt Unlimited Powers’

Following the declaration of a state of emergency by President Bola Tinubu, a Senior Advocate of Nigeria, Wahab Shittu, has said as plausible as the declaration is, it does not give the federal government unlimited power.

The legal luminary disclosed this while speaking with LEADERSHIP Sunday on the legal implication of the President Tinubu’s declaration of state of emergency on insecurity in Nigeria.

According to him, the nation’s Constitution provides for safeguards for such declarations to prevent abuse.

President Tinubu had announced the emergency following a resurgence of deadly attacks and mass abductions in some states in the country.

Shittu said, ‘’However, the declaration of a state of emergency does not give the government unlimited power. The Constitution provides for safeguards to prevent abuse. First, under Section 305(2)–(6), the National Assembly must approve the proclamation within specific time frames; otherwise it lapses automatically.

‘’This ensures democratic oversight. The judiciary also retains its power of review, meaning that courts can examine whether the President validly relied on Section 305(3)(c) or (d). Furthermore, even during a state of emergency, Nigeria must observe non-derogable human rights protections, including the right to life, human dignity, and freedom from torture, consistent with both the Constitution and international conventions.’’

He explained that the first benefit of the declaration is that it allows the federal government to respond decisively to serious threats to public safety.

He said, ‘’A state of emergency allows the federal government to respond decisively to serious threats to public safety. The Constitution empowers the President to declare a state of emergency through an official proclamation, which must be transmitted to the National Assembly for approval.

‘’This is the requirement of Section 305 of the 1999 Constitution as amended. The purpose is to equip the government with expanded tools to restore or maintain law and order during periods of exceptional insecurity.

‘’The most relevant provisions for the recent declaration from the Presidency on insecurity are Section 305(3)(c) and (d) of the Constitution. Section 305(3)(c) allows a state of emergency where “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.”

‘’Section 305(3)(d) applies where “there is a clear and present danger of an actual breakdown of public order and public safety… requiring extraordinary measures to avert such danger.” These provisions recognise two situations: an existing collapse of law and order, or an imminent collapse that must be prevented.

‘’A key legal implication of these paragraphs is that they expressly authorise the government to take “extraordinary measures” to restore or preserve security. Such measures may extend beyond what ordinary law permits. In practical terms, this means that actions which may ordinarily require lengthy legislative or administrative processes can be taken more swiftly once a state of emergency has been declared on any National issue, in this case, insecurity.

‘’For instance, you would observe that in the proclamation, the President approved that 20,000 police officers should be recruited in addition to the already existing 30,000 officers, extraordinary directives. This announcement should ordinarily have been preceded by strict statutory procedures, but for the declaration.’’

He added that other examples of extraordinary measures include the heightened deployment of the armed forces to aid civil authorities, imposition of curfews, restriction of movement, establishment of temporary emergency administrative structures, and urgent security procurement or operational decisions that would normally require strict statutory procedures.

Shittu pointed out that although the constitution does not list these extraordinary measures, the spirit of Section 305 reflects an intentional empowerment of the executive to act outside the bounds of ordinary law where necessary for public safety.

According to him, this aligns with global emergency law frameworks, which acknowledge that extraordinary circumstances require extraordinary measures.