A declaration of a state of emergency under Section 305 of the 1999 Constitution does not confer unlimited or inherent powers on the President. It merely permits the President to formally declare that extraordinary circumstances exist; it does not authorise extraordinary actions in the absence of legislation.
Section 305 is an enabling, not a substantive, provision. It neither suspends the Constitution nor overrides democratic institutions. Any emergency powers exercisable by the executive must already be provided for in existing laws enacted by the National Assembly, or be specifically conferred by new legislation passed during the emergency.
This interpretation is reinforced by two settled constitutional principles:
Subordination Clause
Section 305 begins with the phrase “subject to the provisions of this Constitution”, which the Supreme Court has consistently interpreted as a clause of subordination. It therefore cannot override constitutional provisions establishing elected offices such as Governors or State Houses of Assembly.
Legality of Executive Power
Under Section 5 of the Constitution and the rule of law, executive power is not at large. Executive actions affecting rights, institutions, or obligations must be grounded in legislation enacted by the National Assembly. A proclamation of emergency does not dispense with this requirement.
Comparative constitutional practice in jurisdictions such as the UK, USA, Canada, and India confirms that emergency powers are never implied. Even in India—where the central government may assume state powers—such authority is explicitly provided for by law. Emergency powers are always defined, limited, and reviewable.
Accordingly, a state of emergency does not authorise the removal of elected officials or any other extraordinary measures unless such actions are expressly grounded in legislation. Approval of a proclamation by a mere voice vote is therefore constitutionally insufficient; the Constitution anticipates that the National Assembly will go further to define, limit, and supervise the powers exercisable during the emergency.
To prevent future constitutional crises, the National Assembly should enact a comprehensive Emergency Powers Act clearly delineating permissible measures and requiring additional legislative approval for extraordinary actions.
Any interpretation suggesting that Section 305 itself authorises unlimited executive power—subject only to time limits—poses a grave threat to constitutional democracy. If no legal boundaries exist, then no institution, including the judiciary itself, would be safe during an emergency.
History warns that unchecked emergency powers rarely remain temporary. Constitutional safeguards exist precisely to prevent such outcomes and must not be read out of existence.
Published by Chuks Nwachuku
