A Constitutional State of Emergency in Nigeria

Last Saturday a terrorist attack by the Islamist insurrectionist group Boko Haram killed well over 100 people in the Nigerian city of Kano. This tragic event may have strengthened the domestic position of beleaguered Nigerian president Goodluck Jonathan at a time when sectarian violence, and increasingly visible popular protests against rising gasoline prices, seem to be pushing the West African nation to the brink of chaos.

On its face, the Boko Haram attack would seem to validate a series of controversial moves made by Jonathan over the last few weeks. On January 1st, the president declared a state of emergency over a small region of the Nigerian North, and one week later expanded it to encompass 15 Nigerian States.

When operating under a state of emergency, a Nigerian president is empowered to make laws and to execute them immediately even where the state competencies affected would normally fall under the purview of Nigeria’s highly independent state and regional governments. The power also allows the executive to overstep, with some exceptions, the limitations on power arising from constitutional guarantee of fundamental rights.

In a region with a troubling history of autocrats unnecessarily invoking emergency provisions so as to consolidate power and rule by decree, such declarations can understandably be met with a high degree of suspicion. Section 305 of the 1999 Nigerian Constitution provides for the imposition of a state of emergency in the country, or a part of it, through the official gazette under the following circumstances:

(3) The President shall have power to issue a Proclamation of a state of emergency only when –

(a) the Federation is at war;

(b) the Federation is in imminent danger of invasion or involvement in a state of war;

(c) 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;

(d) there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;

(e) there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation;

(f) there is any other public danger which clearly constitutes a threat to the existence of the Federation;

Prior to the Kano attack, President Jonathan’s stated motivation for the state of emergency (ie. “crushing” Boko Haram by seizing control of uncoordinated regional security apparatus and border controls while creating a special counter-terrorism unit from scratch) had been impugned by both international observers and domestic critics for being disingenuous. The Nigerian Constitution does not allow for emergency executive power to suppress peaceful protests, but does do so in situations involving armed rebellion or an existential threat to the state. As such, the move was initially criticized as a red herring, a cynical power grab aimed at empowering Jonathan’s administration to subvert state powers and repress the Nigerian citizenry with impunity by deliberately exaggerating the threat posed by Boko Haram.

In light of events over the weekend however, criticism has died down considerably. Ironically, by reinforcing the perception that the Islamists do represent an immediate and existential threat to Nigeria’s existence, the attack may have thrown President Jonathan a much-needed lifeline. That being said, Boko Haram has previously stated that they recognize neither the federal constitution nor the authority of President Jonathan.