Section 305 of Nigeria’s 1999 Constitution (as amended) has come under scrutiny after President Bola Tinubu claimed it gave him the power to declare a state of emergency and suspend all elected officials in Rivers State.

The legal provision in Subsection 3c of the Constitution allows the president to declare an emergency in the event peace and security of a state are threatened, but the law is silent on whether the holder of the office can suspend a democratically elected governor, a deputy governor and members of the state house of assembly.

This silence, the Nigerian Bar Association (NBA) says, does not equate to express permission for the president to act on his own accord and allot to himself powers that are unconstitutional.

Afam Osigwe (SAN), the NBA President, issued a statement on Tuesday night condemning Tinubu’s decision.

Osigwe faulted the president’s suspension of Governor Siminalayi Fubara, Deputy Governor Ngozi Odu, and the state House of Assembly. He said he doubted the situation in Rivers warranted a State of Emergency proclamation, but was firm on the unconstitutionality of suspending elected officials.

Several lawyers have echoed the NBA president’s position. Morakinyo Olasupo, a human rights lawyer based in the UK, Festus Ogun, the Managing Partner of FOLegal, and Ridwan Oke, Managing Partner of Iris Attorneys, all say the only way to remove elected officials is enshrined in Section 188 of the Constitution.

Meanwhile, a controversial Emergency Powers Act (2018) has reared its head.

The Act, according to Bashir Ahmad, media aide to former president Muhammadu Buhari, grants the President power to suspend a governor or local government chairman with the approval of the National Assembly (NASS) during an emergency period.

What then is controversial is whether this Act ever became law. If it did, is it at variance with Section 188? If not, does it allow the president to suspend the state house of assembly? The answer to the latter is no.

READ MORE: FLASHBACK: Obasanjo Suspended Plateau, Ekiti Governors. Tinubu Said It Was Illegal

With the official gazette now subject to NASS approval, the president is essentially seeking the permission of lawmakers to illegally suspend lawmakers, and the Rivers Assembly is in support.

“Mr President has acted in the best interest of the country. Therefore, we call on you all to remain calm as the sole administrator appointed by the president assumes his duty in the best interest of our state and nation,” Martin Amaewhule, Rivers House of Assembly Speaker, told residents on Wednesday.

SENATE ALSO ABUSES CONSTITUTION

While the president is relying on the NASS for support, it also is imperative to mention that the Senate recently abused the Constitution when it announced the suspension of Senator Natasha Akpoti-Uduaghan.

Akpoti-Uduaghan challenged Senate President Godswill Akpabio during plenary on February 25 after she was instructed to sit in a different seat.

She later accused Akpabio of trying to bully her after repeatedly blocking her legislative proposals. Akpoti-Uduaghan also said Akpabio made suggestive comments to her during his birthday party held in his house.

READ MORE: UPDATED: Tinubu Declares State of Emergency in Rivers

When the Senate Ethics Committee sat to consider her actions, they concluded that Akpoti-Uduaghan should be suspended for six months. The Senate voted and passed this prayer.

According to the Senate Standing Orders 2015 As Amended, the Senate can only suspend a serving senator for a maximum duration of 14 legislative days, making the six-month declaration illegal.

One may be forgiven for assuming the Red Chamber did not know its own laws, but Ovie Omo-Agege, a Delta State lawmaker, was suspended by the Senate for 90 days in 2018 and a court nullified the senator’s suspension.

This precedent establishes the Senate’s lack of powers to do what it did, but Akpabio allowed it anyway.

THE LAST HOPE OF THE COMMON MAN?

Nigeria has several Acts that frown against bribe-taking and gratification. The Advance Fee Fraud and Other Related Offences Act (2006), Economic and Financial Crimes Commission Act (2004) and Section 161 (d) of the Constitution are opposed to bribery.

Despite this provision, the National Bureau of Statistics (NBS) published in July 2024 that public officials received N721 billion in bribes in 2023.

Leading the pack of bribe collectors was the judiciary. Judges and magistrates received an average of N31,000 in bribes in 2023, putting justice up for sale.

All three arms of government have shown a propensity for abandoning the Constitution and acting at variance with their offices.

With this trend continuing into 2025, the Constitution (as amended) is under attack from all arms of the federal government.