Constitution favours the president, not Supreme Court – Abdulsalam
Barrister Yusuf Abdulsalam, is a Kano-based private legal practitioner and public commentator. In this interview, he bares his views on the recent Supreme Court verdict that the president has power to declare a state of emergency.
What is your reaction to the Supreme Court verdict that the president has power to declare a state of emergency?
It appears to me to be a well-considered judgement. The seven-man panel of the apex court gave the relevant provision of the constitution its literal interpretation. The president can declare a state of emergency if the preconditions are on ground. There is no dispute on this.
Where a judge disagreed and lawyers are intervening, is the question of removal of elected state officials by the President as a consequence of the declaration of the state of emergency.
Some say the judgement favours the executive. Do you agree?
The Supreme Court, by a split decision of six to one, said yes, he can, and I think that’s the correct position.
From your understanding, can the Supreme Court remove elected officials in the exercise of the powers to declare a state of emergency?
That’s not correct. It’s the constitution, rather than the judgement, that favours the President and, if that’s considered to be undesirable, the only remedy, in my view, is to amend the provision.
Yes. The president, not the Supreme Court can do that, according to this judgement.
Let me however clarify section 305 of the 1999 constitution, which empowers the president to proclaim a state of emergency, defined the circumstances under which that power could be exercised. It’s not a discretionary power at all.
The Supreme Court said the Constitution granted the president an additional power to take ‘extraordinary measures’ but the constitution did not define the limit of such measures.
The court said the drafters of the constitution deliberately left it open for the president to decide the measures to take, given the prevailing condition. Now, that is discretionary.
So, it is the severity of the situation that will determine whether removing the elected officials is necessary.
Some are concerned about too much concentration of power on one individual. Won’t this be abused?
I think that’s a genuine concern. The enormous powers given to the president are susceptible to abuse.
Can we say that the judgement is ambiguous?
No. The judgement is crystal clear. It is so clear in determining that the president can give any directive as he deems necessary, following the declaration of a state of emergency.
There was a minority judgement that contradicts the major one. What is the implication?
The implication is that the majority judgement is the law. The minority judgement may provide an avenue for further consideration of the matter, perhaps in tertiary institutions and so on. It may as well trigger a consideration for amendment.
