Emergency powers under scrutiny
With the recent judgment of the Supreme Court of Nigeria affirming the powers of the President to declare a state of emergency in any part of the country, while appearing to limit the same powers, many are confused over the extent to which the President can go to restore normalcy under emergency rule.
While Nigerians were looking forward to a categorical statement by the apex court on whether state governors can be suspended or the legislature removed, what they got was a mixed bag that has been subjected to various interpretations.
Analysts have criticised the judgment as hanging in the air and failing to provide explicit direction on the discretionary powers of the President.
In the split decision of six-to-one on Monday, the panel arrived at the decision after dismissing the main suit for lack of jurisdiction.
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In the majority judgment delivered by Justice Mohammed Idris, it was held that Section 305 of the Constitution empowers the President to deploy extraordinary measures to restore normalcy where emergency rule is declared.
The panel comprised Justices John Inyang Okoro, Chioma Nwosu-Iheme, Haruna Simon Tsammani, Obande Festus Ogbuinya, Stephen Jonah Adah, Habeeb Adewale Abiru, and Mohammed Baba Idris.
In the verdict, the apex court noted that its majority finding was a “considered discussion” of the constitutional provision, after the dismissal of the suit on the grounds of lack of jurisdiction by the governors.
“The Nigerian Constitution adopts a markedly different approach. Section 305 authorises the President to proclaim a state of emergency under specific conditions, including war, imminent danger of invasion, actual or threatened breakdown of public order and safety, or other public danger threatening the existence of the federation,” the justice said.
“However, unlike the constitutions of India and Pakistan, Section 305 of the Nigerian Constitution does not expressly confer power on the President to assume or temporarily displace the executive or legislative institutions of a state. This omission is deliberate and reflects Nigeria’s constitutional commitment to federalism and the autonomy of state governments.”
Earlier, Justice Idris noted that Nigeria operates supremacy, separation of powers, and checks and balances.
“By virtue of Sections 4–7 of the Constitution, governmental powers are divided among the executive, legislature, and judiciary, and distributed across the federal, state, and local government tiers. No arm or tier of government is constitutionally superior to another, and none may lawfully usurp the powers expressly vested in another,” he said.
Justice Idris continued: “Nevertheless, the President’s discretion under Section 305 is not unfettered. Emergency measures must be temporary, corrective, and proportionate. They must be directed towards restoring constitutional governance, not extinguishing it. Any permanent displacement or abrogation of democratically elected institutions would constitute a constitutional aberration. Outside a validly declared state of emergency, the President possesses no power whatsoever to interfere with state executive or legislative institutions.”
The minority judgement
In a minority judgment, Justice Obande Ogbuinya, in his dissenting judgment, held that the case succeeded in part, which is that while the President has the power to declare a state of emergency, he cannot use such power as a tool to suspend elected state officials, including governors, deputy governors, and members of parliament, even temporarily.
He also dissented on the question of lack of jurisdiction, maintaining that the PDP governors had established sufficient interest to bring the matter before the apex court.
The suit was initially brought by Bauchi, Adamawa, Bayelsa, Enugu, Osun, Plateau, and Zamfara states, following President Bola Tinubu’s March 18 declaration of emergency under Section 305(5) of the 1999 Constitution, and the suspension of elected officials, including the deputy governor of Rivers State, Ngozi Odu, and the state assembly lawmakers.
The PDP governors were contending that the suspension of the elected officials and their replacement with retired Vice-Admiral Ibok-Ete Ibas as the sole administrator of the state violates Sections 1(2), 5(2), and 305 of the 1999 Constitution (as amended).
What the judgement implies
In his reaction, the Attorney General of the Federation and Minister of Justice, Lateef Fagbemi (SAN), said the judgment of the Supreme Court affirming the power of President Bola Ahmed Tinubu to declare a state of emergency is a win for all Nigerians.
Fagbemi’s statement, which was contained in a release by his media aide, Kamarudeen Ogundele, on Tuesday, said the judgment is a further consolidation of Nigeria’s fledgling democracy and has cleared whatever doubt anyone might have had.
He said this while reacting to the Supreme Court judgment delivered on Monday in a suit filed by Adamawa State and 10 other Peoples Democratic Party (PDP)-led states, challenging the emergency rule declared by President Bola Tinubu in Rivers State in March.
AGF Fagbemi said: “I welcome the judgment of the Supreme Court affirming the power granted the President by the Constitution to declare a state of emergency in any state in Nigeria whenever the situation arises.
“The landmark judgment has further strengthened our jurisprudence and added another vital ingredient to consolidate our democracy.
“I congratulate all parties in the matter, as it is a win for our fledgling democracy and has helped to erase any doubt anyone might have had about the action of the President and the endorsement by the National Assembly.
“Nigeria is for all of us, and I assure Nigerians of the commitment of President Bola Ahmed Tinubu’s administration to uphold the tenets of democracy and the rule of law at all times,” the minister added.
Bola Ahmed Tinubu’s administration to uphold the tenets of democracy and the rule of law at all times,” the minister added.
Professor Auwalu Yadudu, a renowned constitutional lawyer, in an exclusive interview with Weekend Trust, said the Supreme Court missed an opportunity to give Nigeria a clear perspective on the matter.
“It neither expands nor constrains presidential discretion. If the court had ruled specifically that the President’s action was right or wrong, or that it was limited in some way, then one could meaningfully argue that discretion had been expanded or curtailed.
“But merely explaining the legal position without making a determination on the issues raised does not take us anywhere. It is neither here nor there.
“At best, the court was, in a sense, gratuitous to the +respondent. On the one hand, it said the applicants lacked jurisdiction, yet it proceeded to read out and explain constitutional provisions. A court is not an institution meant simply to explain the law in abstract terms; it is meant to decide disputes.”
Reacting, Dayo Akinlaja (SAN), aligned with the minority judgment of the apex court, maintaining that there was no justification for dismissing the suit for being incompetent because the state governors, who filed the action are critical stakeholders.
For Adedayo Adedeji (SAN), the judgment restates the settled principle that the constitution accords the President exceptional powers to act decisively in situations threatening public order, national security or the corporate existence of the state, subject to the constitutional safeguards provided.
“The case in reference here is the President’s power to declare State of Emergency under Section 305 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The Supreme Court’s decision affirming the President’s constitutional authority to declare a state of emergency represents the extant position of the law as at today and by virtue of Section 287 of the Constitution, is binding on all persons and authorities throughout the Federation,” he said.
Professor Eno Cyprian expressed surprise that the apex court’s view was not right to suspend elected governors and lawmakers in a democracy.
However, E.M.D. Umukoro Esq stated that the Supreme Court did not grant any approvals for the president to declare a state of emergency as only the National Assembly could grant such powers, but only interpreted the constitutional provision in Section 305.
“The powers of the president to declare the state of emergency is unfettered, and limited to the extent of the provisions of the constitution,” he said.
He said South Africa, Kenya and Ghana are some of the countries that have such provisions in their constitution but subject to parliamentary or sometimes, judicial approvals.
Former presidential spokesman Reuben Abati noted that the judgment does not give the President the power to act like a monarch, adding, however, that judges must speak with clarity and certainty.
“It is important that they do not speak with both sides of the mouth. They must not speak in a manner that compels the public to think that they have kolanuts in their mouth,” he said.
“A Supreme Court judgment that lends itself to ambiguous interpretation can only confuse the public and look like an attempt at a cover-up to serve political interests.
“This is the more urgent reason why civil society and public interest lawyers should speak up and demand further clarifications from the Supreme Court, if need be, hoping that our judiciary would learn to act expeditiously and not intervene when its wisdom has been rendered academic and technical after the fact.”
Also sharing his views, the executive director of an Abuja-based think, Mr Charles Onunaiju stated that there are perceptions that the judgment means that power is being consolidated in one man, which was envisaged by the constitution, especially in a polity where the institutions are still not strong.
“We have to find a way to dispense power. I keep saying one thing, that the main thing in a democracy is not how to acquire power, but how to constrain power. It is the key feature of a democracy because everyone knows what it means to concentrate power in a single hand. And in the circumstance of Nigeria and other developing countries, the need to find a way to constrain power is even more urgent than in established democracies,” he said.
He added, “We have had state of emergency in the past, like Borno, Yobe and Adamawa and there was no question of removal of elected officials. State of emergency, most times, is to bring to bear the federal presence to resolve a particular issue. And except a governor is fingered as part of the problem, removal is an overdrive.
“We have seen it with Obasanjo and everybody knew it was a case of vendetta, not because of the issues. In this instance, it is also a clear vendetta – acting on behalf of a faction in a dispute. And that is not what the constitution envisages. In this instance, it was not a constitutional issue; there was no obvious threat of a breakdown of law and other. It is just that two sides were flexing muscles, one side thought it has a federal might and he deployed it. And if the federal government continues to act as an accessory to a faction of local gladiators, it is an abuse, not only of the powers inherent in the constitution but abuse of its political authority.”
For his part, a Lagos journalist, Remi Ladigbolu, stated that in the final analysis, despite its limitations and unfortunate timing, the Supreme Court’s engagement with the Rivers State emergency has clarified the law, established the limits of presidential powers, exposed the dangers of executive overreach, and reinforced the principle that constitutional democracy does not dissolve in times of political inconvenience.
“That clarification, even without the force of law, remains a critical bulwark against presidential arbitrariness and a foundation upon which future democratic resistance can be built,” he said.
Previous state of emergency declarations
States of emergency had been imposed in the past in states such as Plateau, Ekiti, Adamawa, Yobe and Borno where different approaches were adopted in implementation.
It will be recalled that following ethno-religious disturbances in Plateau State in 2004, President Olusegun Obasanjo made a proclamation on May 18, 2004, removing Governor Joshua Dariye and the state legislature, and replacing them with Major-General M.C. Alli (retd.) as emergency administrator.
The Plateau State Government and another party brought an action against the Attorney General of the Federation, contending that the suspension of the duly elected governor and legislators and their replacement with an emergency administrator were unconstitutional, null, and void on the grounds that it was not only unauthorised by any provision of the 1999 Constitution but also a positive contravention of the explicit prohibition contained in Section 11(4) and (5) of the Constitution.
In its judgment on January 19, 2006, the Supreme Court dismissed the suit and upheld the counter-affidavit of Administrator Alli, who had submitted that he did not give approval for the suit.
Delivering the judgment, the seven-member panel of the apex court, led by Muhammadu Uwais, former Chief Justice of Nigeria, struck out the case for want of jurisdiction.
In the lead judgment, Justice Idris Kutigi held that the appointed administrator was in charge of Plateau State and did not give his consent to anyone to file a suit on behalf of the state.
“My conclusion, therefore, is that the 1st and 2nd plaintiffs did not authorise this suit and no instruction was given for filing same at the time it was filed. Any retrospective approval given by Governor Dariye is unhelpful, as you cannot put something on nothing. There was therefore nothing to ratify,” Kutigi said.
“The suit having been filed without the authorisation by the plaintiffs deserves one thing only. That one thing is simply to strike out the case in its entirety. The suit is hereby struck out.”
In 2006, Obasanjo again declared a state of emergency in Ekiti State and removed Governor Ayodele Fayose and members of the legislature after a conflict that resulted in the impeachment of the governor and his deputy, Abiodun Olujimi.
In contrast, President Goodluck Jonathan, in 2013, declared a state of emergency in Adamawa, Borno, and Yobe states following years of violence but did not tamper with the elected officials.