Emergency Powers in Nigeria: Balancing Security and Democratic Principles

Abstract

This article examines the legal framework governing emergency Powers in Nigeria, focusing on their constitutional basis, application, and implications for democratic governance. It explores the tension between ensuring national security and protecting fundamental rights, analyzing historical and contemporary uses of emergency powers. The article argues for stricter oversight mechanisms to prevent abuse while maintaining effective responses to crises. Through a critical review of legal provisions and case studies, it highlights the need for a balanced approach to safeguard Nigeria’s democratic integrity.

Introduction

Emergency powers are exceptional measures granted to governments to address crises such as war, insurgency, or natural disasters. In Nigeria, these powers are enshrined in the 1999 Constitution, reflecting the country’s complex history of political instability, ethnic tensions, and security challenges. While necessary for managing extentential threats, emergency powers risk undermining democratic principles and human rights if unchecked. This article investigates the legal and practical dimensions of emergency powers in Nigeria, assessing their efficacy and potential for abuse. It aims to contribute to scholarly discourse on balancing security imperatives  with constitutional safeguards.

Background

Nigeria’s experience with emergency powers dates back to colonial rule, with the 1914 Emergency Powers Act enabling the colonial government to suppress dissent. Post- independence, the First Republic(1960-1966) saw emergency declarations, notably in the Western Region in 1962, amid political crises. Military Regimes frequently invoked emergency – like measures, often without constitutional backing, leading to widespread human rights abuses.  The 1999 Constitution, enacted after Nigeria’s return to democracy, formalized emergency powers under Section 305, aiming to regulate their use. However, challenges such as Boko Haram insurgency, communal clashes and banditry have tasted this framework raising questions about its adequacy and implementation.

Main Body

The legal basis for emergency powers in Nigeria is primarily Section 305 of the 1999 Constitution (as amended) . This section empowers the President to declare a state of emergency in the Federation or any part thereof if there is a clear threat to public safety, security or national unity. Such a declaration requires  approval by two-thirds majority of the National Assembly within two days, with an initial duration of six months, subject to renewal. The Constitution also mandates that fundamental rights may be derogated only to the extent necessary, aligning with international human rights standards.

Historically, emergency powers have been invoked sparingly but with significant consequences. In 1962, Prime Minister Abubakar Tafawa Balewa declared a state of emergency in the Western Region to quell political violence, leading to the suspension of regional governance. More recently, President Goodluck  Jonathan declared emergencies in Borno, Yobe , and Adamawa States between 2011 and 2013 to combat Boko Haram. These declarations enabled military deployments and curfews but we’re criticized for excessive force and human rights violations, including extrajudicial killings.

The judiciary plays a  critical role in checking emergency powers. In Attorney General of the Federation v National Conference on Constitutional Reforms (2004), the Supreme Court emphasized that emergency measures must comply with constitutional limits. However, judicial oversight is often limited during emergencies due to restricted access to courts and the urgency of executive actions. Additionally, the Emergency Powers Act of 1961, though rarely invoked, grants broad discretionary powers to the President, raising concerns about potential abuse.

Discussion

The application of emergency powers in Nigeria reveals a delicate balance between security and democracy. On one hand, Nigeria’s volatile security landscape necessitates robust mechanisms to address threats like terrorism and communal violence. The Boko Haram insurgency, for instance, justified emergency measures to restore order in affected regions. On the other hand, these powers have often been misused to suppress dissent or extend executive control. During the 2013 Emergency rule in the Northeast, reports of arbitrary detentions and torture underscored the risks of unchecked authority.

A key issue in the vagueness of constitutional provisions . Section 305 does not clearly define what constitutes a “threat to public safety, “ leaving room for subjective interpretation. This ambiguity enables political actors to exploit emergency powers for partisan ends, as seen in the 1962 Western Region crises, which was partly a power struggle between rival political parties. Moreover, the National Assembly’s oversight role is weakened  by political alignments,  with lawmakers often deferring to the executive rather than scrutinizing declarations.

International law provides guidance for regulating emergency powers. Nigeria, as a signatory to the International Covenant on Civil and Political Rights ( ICCPR), is bound by Article 4 , which permits derogations from certain rights during emergencies but prohibits violations of non-derogable  rights, such as the right to life. However, Nigeria’s compliance with these standards is inconsistent, as evidenced by documented abuses during emergency operations.

To address these challenges, Nigeria could adopt stricter safeguards. First,  amending Section 305 to include precise criteria for declaring emergencies would reduce ambiguity. Second, establishing an independent oversight body, comprising jurists and civil society representatives, could monitor emergency measures. Third, enhancing judicial access during emergencies would ensure accountability. These reforms would align Nigeria’s framework with global best practices, as seen in countries like South Africa, where emergency powers are subject to rigorous checks.

Conclusion

Emergency Powers are a necessary tool for addressing crises in Nigeria, but their implementation requires careful calibration to prevent democratic erosion.  While the 1999 Constitution provides a legal foundation, it’s ambiguities and weak oversight mechanisms pose risks of abuse. Historical and contemporary case studies highlight the need for reforms to ensure that emergency powers serve their intended purpose without compromising fundamental rights. By adopting clearer legal standards, strengthening oversight, and aligning with international norms , Nigeria can better balance security imperatives with it’s democratic aspirations. This article underscores  the urgency of these reforms to safeguard the nation’s constitutional order .

Reference(S):

• Constitution of the Federal Republic of Nigeria 1999(as amended).
• Emergency Powers Act 1961, Cap E7, Laws of the Federation of Nigeria 2004.
• Attorney General of the Federation v National Conference on Constitutional Reforms (2004) 12 NWLR (Pt 888) 1.
• International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR)
• Falana, F, Fundamental Rights Enforcement in Nigeria (3^rd edn , Legal Text Publishing 2019)
• Human Rights Watch , Spiraling Violence: Boko Haram Attacks and Security Force Abuses in Nigeria (HRW 2012).
• Odinkalu, CA, ‘ Emergency Powers and the Rule of Law in Nigeria ‘ (2020) 15 Journal of Constitutional Law 45.
• Okeke, G N, The Nigerian Constitution : History and Development (OUP 2018).