The Doctrine of Necessity: Nigerian Case Studies and Implications

The Doctrine of Necessity, a concept rooted in ancient legal maxims like Bracton’s “that which is otherwise not lawful is made lawful by necessity” and the Roman law principle “the well-being of the people is the supreme law,” is a fascinating and often controversial principle that seeks to legitimize actions taken outside the bounds of established law in extraordinary circumstances. It’s a recognition that rigid adherence to legal frameworks, while crucial for stability, may sometimes lead to greater societal harm when confronted with unforeseen and existential crises.

In Nigeria, a nation with a complex political history marked by periods of constitutional flux and political instability, the Doctrine of Necessity has emerged as a recurring theme, particularly in times of profound national challenge. This comprehensive blog post will delve into the intricacies of this doctrine, exploring its theoretical underpinnings, examining key Nigerian case studies where it was invoked, and critically analyzing its far-reaching implications for constitutionalism, the rule of law, and democratic governance in the country.

Understanding the Doctrine of Necessity

At its core, the Doctrine of Necessity posits that certain actions, though seemingly illegal or extra-constitutional, become justifiable when they are the only means to avert a grave and imminent peril to the state, its institutions, or the welfare of its people. It is not an invitation to lawlessness, but rather a last resort, a concession to human weakness and the unpredictable nature of events that even the most meticulously drafted constitution cannot fully anticipate. The doctrine essentially allows for the temporary suspension or circumvention of specific legal provisions to preserve the larger constitutional order and the nation’s very existence.

Key characteristics and conditions for its invocation typically include:

• Grave and Imminent Peril: The situation must present a clear and present danger of catastrophic proportions, threatening the fundamental fabric of the state. This is not about convenience or political expediency, but about preventing societal collapse.
• No Lawful Alternative: The actions taken must be the only available means to address the crisis. If a legal and constitutional path exists, it must be pursued. The doctrine does not authorize arbitrary deviation from the law.
• Proportionality and Good Faith: The measures adopted under the doctrine must be proportionate to the threat faced and undertaken with the genuine intention of preserving the state and its institutions, not for personal gain or to consolidate power.
• Temporary Nature: The actions are intended to be temporary, aimed at restoring normalcy and constitutional rule as quickly as possible. They do not permanently alter the constitutional framework.
• Subsequent Validation (Implicit or Explicit): While initially extra-legal, the actions often seek some form of subsequent legal or political validation, whether through legislative action, judicial pronouncements, or public acceptance.

It’s crucial to distinguish the Doctrine of Necessity from mere expediency or an excuse for authoritarianism. Its legitimacy hinges on the extreme nature of the circumstances and the demonstrable lack of alternative solutions.

Historical Applications of the Doctrine of Necessity in Nigeria

Nigeria’s political landscape has, unfortunately, provided fertile ground for the invocation of the Doctrine of Necessity. From military interventions to civilian political impasses, the doctrine has been referenced, explicitly or implicitly, to justify actions that, in normal times, would be considered unconstitutional.

The Military Era and its Controversial Legacy

While not always explicitly framed as the “Doctrine of Necessity,” the rationalization for military coups in Nigeria often implicitly relied on a similar principle of perceived necessity. Military regimes frequently cited a breakdown of law and order, corruption, or political instability as reasons for seizing power, claiming to be acting in the national interest to “save the country.”

One prominent legal case that touched upon the theoretical underpinnings of legitimacy during military rule was Lakanmi v. Attorney General of Western Region (1970). In this landmark case, the Supreme Court of Nigeria held that the military government, having come to power by force, was not a revolutionary government but an interim one operating under the Doctrine of Necessity. The court posited that the military government’s decrees were not superior to the 1963 Constitution, but rather derived their validity from the necessity to maintain law and order.

However, this interpretation was swiftly countered by the military government, which subsequently promulgated Decree No. 28 of 1970, the Federal Military Government (Supremacy and Enforcement of Powers) Decree, effectively nullifying the Supreme Court’s decision in Lakanmi’s case and asserting the supremacy of military decrees. This episode starkly illustrated the limitations of judicial review in the face of military might and the inherent tension between the doctrine of necessity and the principle of constitutionalism when applied in a non-democratic context.

While the military regimes often used the rhetoric of necessity, their actions frequently went far beyond what could be genuinely justified by the doctrine, leading to prolonged periods of unconstitutional rule and the suppression of fundamental rights.

The 2010 Yar’Adua Succession Crisis: A Defining Moment

Perhaps the most widely cited and debated application of the Doctrine of Necessity in Nigeria’s democratic era occurred in 2010, during the constitutional crisis precipitated by the prolonged absence and ill-health of then-President Umaru Musa Yar’Adua.

Background: President Yar’Adua had travelled to Saudi Arabia for medical treatment in November 2009 without formally transmitting a letter to the National Assembly, informing them of his medical vacation and empowering the Vice President, Goodluck Jonathan, to act as President, as stipulated by Section 145 of the 1999 Constitution. His absence created a leadership vacuum, a constitutional lacuna that paralyzed government functions and fueled political instability. The nation was gripped by uncertainty, with a palpable sense of drift and a growing constitutional crisis. The Federal Executive Council (FEC) initially resisted declaring the President incapacitated under Section 144, further deepening the impasse.

The Invocation: Faced with this unprecedented constitutional dilemma, and after months of political gridlock and public outcry, the National Assembly, on February 9, 2010, adopted a “Doctrine of Necessity” resolution. This resolution empowered Vice President Goodluck Jonathan to assume the full powers of Acting President. This action was taken despite the absence of a formal written declaration from President Yar’Adua, which Section 145 of the Constitution seemingly required.

Justification: The National Assembly’s justification for invoking the doctrine was clear: the nation was on the brink of collapse due to the leadership vacuum. There was a grave and imminent peril to the state, and no other lawful mechanism (given the President’s inability to transmit the letter and the FEC’s inaction) existed to resolve the crisis. The resolution was presented as a pragmatic and necessary step to restore constitutional order and prevent a complete breakdown of governance.

Implications of the 2010 Case:

• Precedent Setting: The 2010 invocation set a significant precedent in Nigeria’s democratic history, demonstrating that in extraordinary circumstances, the legislature could act outside strict constitutional provisions to safeguard the state.
• Constitutional Amendment: The crisis directly led to the amendment of Section 145 of the 1999 Constitution. The altered Section 145(2) now explicitly provides that if the President is unable to transmit the written declaration, the Vice President automatically assumes the functions of the President as Acting President. This amendment was a direct legislative response to prevent a recurrence of the 2010 constitutional deadlock, effectively institutionalizing a mechanism to address such a vacuum without resorting to an extra-constitutional doctrine.
• Judicial Non-Interference (Initially): While there were legal arguments and calls for judicial intervention during the crisis, the judiciary largely adopted a non-interventionist stance, allowing the political resolution to play out. This highlights the delicate balance courts often strike in highly charged political matters, especially when national stability is at stake.
• Public Acceptance: Crucially, the 2010 resolution gained widespread public acceptance and was seen by many as a necessary evil to avert a deeper crisis. This public legitimacy played a significant role in its success.

Other Potential Applications and Considerations

While the 2010 case remains the most prominent, the Doctrine of Necessity’s shadow has loomed over other periods of political tension and emergency in Nigeria:

• States of Emergency: Nigeria’s constitution provides for the declaration of states of emergency under Section 305. While these declarations are legally provided for, the scope of powers exercised during such periods can sometimes push the boundaries of normal constitutional limits. Debates have arisen, for instance, regarding the suspension of democratic institutions like state assemblies or the removal of elected governors during federal states of emergency, as seen in cases like Plateau (2004) and Ekiti (2006).
• While the constitution grants the power, the extent to which these actions align with the spirit of necessity and proportionality has been a subject of contention, often raising questions about whether they were truly the “only way” to restore order or were driven by political considerations. The recent declaration of a state of emergency in Rivers State (2024-2025) due to political instability and attacks on oil infrastructure, with its implications for elected officials, further fuels this ongoing discourse.
• Responses to National Security Threats: In the face of severe security challenges, such as the Boko Haram insurgency, the Nigerian government has at times adopted measures that might be argued to fall under the ambit of necessity, even if not explicitly termed as such. These include mass arrests, prolonged detentions, and restrictions on movement, which, while aimed at safeguarding national security, can sometimes impinge on fundamental human rights. The justification often boils down to a balancing act between individual liberties and collective safety, with “necessity” serving as the underlying rationale for extraordinary measures.

Implications for Constitutionalism and the Rule of Law in Nigeria

The recurring engagement with the Doctrine of Necessity in Nigeria carries profound implications for the nation’s commitment to constitutionalism and the rule of law.

The Paradox of Necessity and Constitutionalism

The Doctrine of Necessity presents a fundamental paradox: it seeks to preserve the constitutional order by temporarily departing from it. This creates an inherent tension. On one hand, it acknowledges that rigid adherence to form over substance can lead to greater chaos. On the other hand, it opens the door to potential abuse, where “necessity” becomes a convenient pretext for authoritarianism or the subversion of democratic principles.

In Nigeria’s context, where democratic institutions are still maturing, the risk of misapplying the doctrine is significant. Every invocation, even if initially justified, chips away at the strict adherence to constitutional provisions, potentially fostering a culture where extra-legal actions become more acceptable.

Weakening of the Rule of Law

The rule of law, a cornerstone of any democratic society, dictates that all individuals and institutions, including the government, are subject to and accountable under the law. When the Doctrine of Necessity is invoked, it inherently involves a deviation from established legal norms. While this deviation may be necessary in extreme cases, repeated or unjustified invocations can erode public confidence in the legal system and undermine the principle that law, not arbitrary power, governs the nation.

The ease with which military regimes in the past invoked a “doctrine of necessity” to legitimize their coups and subsequently rule by decree demonstrably weakened the rule of law in Nigeria for decades. Even in democratic contexts, the specter of “necessity” can create uncertainty and encourage a perception that laws are flexible and can be disregarded when politically convenient.

Challenges to Democratic Accountability

When actions are taken under the Doctrine of Necessity, the normal processes of democratic accountability can be curtailed. For instance, in the 2010 crisis, while the National Assembly ultimately acted, the initial lack of clear constitutional guidance meant that the executive was effectively operating without full accountability for a period. While the legislative intervention ultimately brought some accountability, the very need for such an intervention highlights the vulnerabilities in the system.

The doctrine, by its nature, concentrates power in the hands of those who claim to be acting out of necessity. This concentration of power, even if temporary, poses a risk to the checks and balances essential for a healthy democracy.

The Role of the Judiciary

The judiciary plays a crucial, yet delicate, role in cases involving the Doctrine of Necessity. While courts are guardians of the constitution, they are also aware of the pragmatic need to preserve the state.

In Lakanmi v. Attorney General of Western Region, the Nigerian Supreme Court attempted to assert judicial oversight over the military government, interpreting its rule under the Doctrine of Necessity and asserting the continued relevance of the constitution. However, as noted, this was swiftly overturned by military decree, underscoring the limitations of judicial power in the face of raw force.

In the 2010 Yar’Adua crisis, the judiciary largely chose not to intervene proactively, allowing the political branches to resolve the impasse. This might be interpreted as a pragmatic approach, recognizing the political sensitivity and the potential for greater instability if the judiciary were to wade into an already volatile situation without clear legal grounds. However, it also raises questions about the judiciary’s role as the ultimate interpreter and enforcer of the constitution in times of crisis.

The challenge for the Nigerian judiciary going forward is to develop a robust jurisprudence around the Doctrine of Necessity that provides clear guidelines for its application, prevents its abuse, and ensures that it remains a truly exceptional measure, subject to strict judicial scrutiny.

The Need for Proactive Constitutional Design

The experience of the Doctrine of Necessity in Nigeria underscores the importance of proactive constitutional design. The 2010 crisis, while ultimately resolved through a political compromise bolstered by the doctrine, revealed a lacuna in the 1999 Constitution. The subsequent amendment of Section 145 demonstrates that rather than relying on an extra-constitutional doctrine, it is preferable to anticipate potential crises and provide clear constitutional mechanisms to address them.

A robust constitution should aim to minimize the need for the Doctrine of Necessity by providing comprehensive frameworks for succession, incapacity, and emergency powers, ensuring clarity and avoiding ambiguity that can lead to constitutional crises.

Zero Blind Spots: Addressing Nuances and Counterarguments

A comprehensive analysis of the Doctrine of Necessity in Nigeria requires acknowledging several nuances and counterarguments that often arise in discussions surrounding its application.

The “Slippery Slope” Argument

A primary concern with the Doctrine of Necessity is the “slippery slope” argument. Critics contend that once the door is opened to actions outside the strict constitutional framework, it becomes easier for future leaders to bypass legal procedures, using “necessity” as a convenient excuse for consolidating power or suppressing dissent. This argument holds significant weight in a country like Nigeria, which has experienced long periods of authoritarian rule justified by similar rhetoric. The challenge lies in ensuring that each invocation of the doctrine is a truly exceptional event, not a gateway to repeated constitutional circumvention.

Who Determines “Necessity”?

A crucial “blind spot” is the question of who determines when “necessity” arises and what actions are necessary. In the 2010 case, the National Assembly, as the legislative arm, took the decisive step. However, what if there is disagreement among political actors? What if the executive unilaterally declares necessity? The lack of a clear, pre-defined arbiter for “necessity” can lead to further political disputes and undermine the very stability the doctrine seeks to restore. Ideally, a mechanism for independent assessment, perhaps involving the Supreme Court, could provide a more objective determination of the existence and scope of necessity.

The Morality vs. Legality Debate

The Doctrine of Necessity often blurs the lines between morality and legality. Actions that are morally justifiable to save a nation might still be legally questionable. The doctrine attempts to bridge this gap, but it inherently involves a judgment call about the “greater good.” This can lead to situations where actions deemed necessary by some are viewed as illegal usurpations of power by others, leading to ongoing debates about their legitimacy.

The Risk of Retrospective Validation

Sometimes, actions are taken out of necessity, and then a retrospective attempt is made to legalize them. This was evident with military decrees that sought to legalize their takeovers. While the 2010 case saw the National Assembly acting to formalize the situation, the very nature of “necessity” can lead to actions preceding legal authorization. This raises questions about the sanctity of due process and the potential for an “ends justify the means” approach to governance.

The International Dimension

The application of the Doctrine of Necessity in Nigeria also has international implications. International law often recognizes necessity as a defense for state actions that would otherwise be wrongful. However, the international community generally favors constitutional continuity and democratic processes. While the 2010 resolution gained international acceptance due to the grave nature of the crisis and its democratic resolution, repeated or unjustified invocations could draw international scrutiny and concern about Nigeria’s commitment to the rule of law.

The Future of the Doctrine of Necessity in Nigeria’s Legal Framework

Given Nigeria’s historical experiences, the future role of the Doctrine of Necessity in its legal framework warrants careful consideration.

Minimizing its Recourse

The ultimate goal should be to minimize the need for the Doctrine of Necessity. This requires:

• Robust Constitutional Amendments: As seen with Section 145, amending the constitution to address foreseeable gaps and crises is paramount. This includes clear provisions for presidential succession, incapacitation, and emergency powers, leaving less room for ambiguity and extra-constitutional solutions.
• Strengthening Democratic Institutions: Well-functioning democratic institutions, including a strong and independent judiciary, a responsive legislature, and accountable executive, are the best safeguards against the kinds of crises that necessitate the doctrine’s invocation.
• Promoting Political Culture of Adherence to Law: Fostering a political culture where adherence to constitutional provisions and the rule of law is sacrosanct, even in challenging times, is crucial. Leaders and political actors must prioritize legal processes over political expediency.

Clearer Judicial Guidelines

Should a situation genuinely arise where the Doctrine of Necessity is considered, the Nigerian judiciary needs to develop clearer and more stringent guidelines for its application. These guidelines should emphasize:

• High Threshold for Invocation: The “grave and imminent peril” criterion must be interpreted very strictly.
• Exhaustion of Legal Remedies: It must be demonstrably proven that all available legal and constitutional avenues have been exhausted.
• Strict Proportionality: The actions taken must be strictly proportionate to the threat and the minimum necessary to resolve the crisis.
• Limited Duration: The application of the doctrine must be explicitly time-bound, with a clear roadmap for the return to full constitutional normalcy.
• Ex-post Facto Review: While judicial pre-emption might be challenging in immediate crises, robust ex-post facto judicial review should be possible to assess the legitimacy and proportionality of actions taken under the doctrine.

Scholarly and Public Discourse

Continued scholarly and public discourse on the Doctrine of Necessity is vital. Open discussions about its historical application, its potential for abuse, and its implications for democracy can help to build a shared understanding and foster a collective commitment to constitutionalism. This discourse can also inform future legislative reforms aimed at strengthening Nigeria’s legal framework and preventing future constitutional crises.

Conclusion

The Doctrine of Necessity, a concept born out of the exigencies of preserving the state in the face of unforeseen perils, holds a complex and often contentious place in Nigerian jurisprudence. From the military era’s problematic justifications to the democratic resolution of the 2010 Yar’Adua crisis, its application has consistently tested the boundaries of constitutionalism and the rule of law.

While its invocation in truly exceptional circumstances can serve as a vital tool to avert national catastrophe, the inherent dangers of its abuse necessitate extreme caution. Nigeria’s experiences highlight the critical importance of a robust, adaptable, and forward-looking constitutional framework that minimizes the need for such extra-legal interventions. The 2010 amendment to Section 145 stands as a testament to the nation’s capacity to learn from its challenges and strengthen its constitutional mechanisms.

Moving forward, the focus must be on nurturing a political culture that respects the supremacy of the constitution, an independent judiciary capable of robust oversight, and a commitment from all political actors to adhere strictly to the rule of law, even when faced with daunting challenges. The Doctrine of Necessity should remain what it truly is: a rare and exceptional measure, a last resort in the direst of circumstances, rather than a convenient bypass for constitutional obligations. Only then can Nigeria truly solidify its democratic gains and build a future where governance is consistently anchored in law, not in the shifting sands of perceived necessity.