Supreme Court judgement did not favour the executive — Yadudu
The Supreme Court judgment in the suit filed by PDP-controlled states challenging the suspension of elected officials during the emergency has triggered intense legal and political debate. The apex court declined jurisdiction on the ground of locus standi but went on to offer extensive constitutional explanations without delivering a definitive ruling.
Professor Auwalu Yadudu, a renowned constitutional lawyer, who was a legal adviser to a former military president, examines the judgment’s implications for state autonomy, executive discretion and judicial responsibility arguing that the ruling sets no binding precedent and represents a missed opportunity for the court to clarify one of the most consequential constitutional questions in Nigeria’s federal system.
How should Nigerians understand the Supreme Court’s decision in the case filed by PDP-controlled states challenging the declaration of emergency rule and the suspension of elected officials in Rivers State?
Well, Nigerians should understand it as it is. First of all, the court, in its view, was satisfied that the parties who came before it had no locus standi; that they did not demonstrate any sufficient interest in the matter, and therefore, if they lack locus standi, they should not be heard. Jurisdiction is very important in deciding a matter.
But instead of simply striking out the suit on that basis, the court went on to address the substance of the case. Yet, at the end of the day, it did not make any ruling on the substance itself. So, I really do not know what the court wanted to achieve.
In my view, it would have been sufficient if the court had said the parties lacked locus standi and struck out the matter. Everything would have ended there. But once you go into the merits and then do not make a ruling on the issues, it leaves us neither here nor there.
On jurisdiction, the court declined to hear the case partly because Rivers State was not a party. But at the time the case was filed, Rivers had no attorney general. Who could have instituted the suit on its behalf?
That is precisely why I consider the court’s position on locus standi questionable. The judgment does not provide sufficient legal grounding for such a narrow approach.
If you examine the line of cases on locus standi, the court has, in the past, adopted a more expansive approach when constitutional interpretation is at stake. Had it done so here, it could have provided a firmer legal basis for its conclusion.
Instead, the court appeared dismissive of the broader jurisdictional implications. Having taken that approach, it then went on to explain constitutional provisions without delivering a definitive verdict. That combination is unhelpful and does not reflect a sufficiently serious engagement with an issue of this magnitude.
Do you think that, in future, a party could properly assume jurisdiction, given that the court was silent on the “how”?
It remains to be seen whether there will be people who are creative enough and politically willing enough to challenge this issue properly.
You may recall Adesanya v Federal Government of Nigeria, which established the principle of locus standi. That case was initiated by an opposition figure. In the present situation, even if Rivers lacked an attorney general, the issue affects all states.
This is not just about Rivers State. It is about the interpretation of a constitutional provision that affects all Nigerians. It is therefore possible that, in the future, law officers of different states under different parties could agree to sue jointly.
To what extent do you think the ruling expands presidential discretion in declaring a state of emergency, especially regarding the suspension of elected governors and state assemblies?
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.
Having already deprived itself of jurisdiction, it should have restrained itself from addressing the substance. That failure is precisely why it did not constrain itself to make a ruling one way or the other.
Do you consider the further explanations given after the court declined jurisdiction an aberration?
Yes, it is an aberration. If you look at the historical background of emergency powers, including the examples cited by the court from Pakistan and India, Nigeria also had similar provisions during the parliamentary system.
Under that system, there was an Act of the National Assembly that empowered the Prime Minister to declare a state of emergency. In practice, that allowed what occurred in the former Western Region. But that legal framework is no longer relevant under a presidential system.
The President cannot rely on an Act applicable to a parliamentary system to suspend or hold in abeyance an office that has a constitutionally guaranteed tenure and clearly stated grounds for cessation of office. That is what makes the situation quite strange.
One would have hoped that, despite the fact that the PDP governors were not directly affected, they had raised a sufficient constitutional dispute between the federal government and the states on the interpretation of Section 232 to warrant the Supreme Court’s jurisdiction.
The court could even have invited amicus curiae (friends of the court) given the fundamental nature of the constitutional questions involved. While the court did engage with the issues to some extent, it failed to reach a definitive decision one way or the other.
Taken as a whole, does the ruling reshape the balance of power between the federal government and the states?
No, I do not see it as giving the federal government additional powers beyond what the constitution already provides. The problem is that we are deprived of clarity.
If the court had ruled on whether the constitution’s silence expands or constrains presidential power vis-à-vis states, then we would have had legal certainty. Instead, we only have explanation without decision. That opportunity was lost.
What we have instead is an explanation without a decision, no ruling, no judgment that can serve as a binding precedent for the future. That is unfortunate, because such a situation could potentially affect any governor, regardless of party affiliation.
Based on the court’s explanation of National Assembly procedures, can it be said that the emergency rule lacked proper legislative approval?
This takes us back to the fundamental problem I have identified. When a court refuses to address an issue on its merits and declines to deliver a verdict on whether an action was right or wrong, you inevitably end up with the confusion we now have.
The court was unwilling to interrogate whether the House of Representatives complied with its own threshold requirements because doing so would have required it to reach a conclusion on the merits. It had already placed itself in a difficult position by first declaring that it lacked jurisdiction.
Having done that, it would have been inappropriate—indeed gratuitous—for the court to determine whether the House met the required threshold. To do so would have meant deciding whether the declaration was valid or invalid. Instead, the court merely skirted the issue without making any determination.
With respect, the Supreme Court wasted an opportunity. It should have stopped at striking out the suit. Once a case is struck out, it can be refiled by parties with proper standing. Even in this case, Rivers State now has an attorney general and could institute proceedings, although politically it may be reluctant to do so.
How likely is it that a sitting or future president could rely on this judgment to suspend elected officials?
It is very likely that presidents would feel emboldened. From their perspective, their actions were not questioned, reprimanded or decided upon.
As a result, a president—whether acting against a governor from his own party or another party—may feel encouraged to do the same thing. It would then depend on whether there is sufficient political will to insist that the court must finally come to a decision.
Strictly speaking, it would not even amount to reconsidering this judgment, because no substantive judgment was delivered.
Despite this, are there constitutional, legislative or political safeguards against abuse of emergency powers?
Yes, there are safeguards. The difficulty is that they may not have been properly utilised.
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,
Some critics say the court showed excessive deference to executive power. Do you agree?
Formally speaking, the court did not rule for or against the executive, so it is difficult to accuse it of deference in the strict sense.
However, by failing to decide the case, the court left room for that perception. It should have been more robust, particularly since the emergency powers had already been lifted. A ruling at that point would not have harmed anyone.
Some commentators compare this ruling with the Supreme Court’s 2007 judgment in Atiku Abubakar’s case and opine that this one contradicts the previous one. Do you agree with that comparison?
No, I do not. The issues in the Atiku case are entirely different. That case concerned whether the vice president could be removed from office without following the constitutionally prescribed procedure. The court held that his tenure could not be terminated except in accordance with the constitution.
That decision is neither directly applicable nor contradictory to the present case. However, had the Supreme Court examined this matter on its merits, the Atiku judgment could have become relevant in reinforcing the principle that a governor holds office for a fixed term.
Such tenure can only end by death, resignation, removal or incapacity. In the case of Rivers State, none of these grounds had arisen. That is why a substantive ruling would have been very valuable.
Finally, is it fair to say that this matter remains undecided and that the judgment was largely academic?
You have put it correctly. The matter remains undecided in the sense that no precedent has been set on the scope of the president’s emergency powers.
The only principle reaffirmed is that where a party lacks locus standi, the court will decline jurisdiction. Beyond that, the court has not determined whether a declaration of emergency—properly approved by the National Assembly—empowers the president to suspend or terminate the tenure of elected officials whose offices are protected by fixed terms and clearly defined constitutional grounds for removal.
