S/Court backs Tinubu on Rivers’ emergency rule

By John Chuks Azu, Saawua Terzungwe & By Baba Martins

The Supreme Court yesterday upheld the president’s power to declare a state of emergency in any state to prevent a breakdown of law and order or a descent into chaos or anarchy.

In a split decision of six-to-one, the panel held that the president can suspend elected officials during a state of emergency, but that such suspensions must be for a limited period.

In the majority judgement 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.

Justice Idris noted that Section 305 is not specific on the nature of the extraordinary measures, thereby granting the President the discretion on how to go about it.

The judgement followed a suit filed by Adamawa and 10 other People’s Democratic Party (PDP) states challenging the propriety of the state of emergency declared by President Bola Tinubu in Rivers State, during which elected state officials were suspended for six months.

Justice Idris, in the earlier part of the judgment, upheld the preliminary objections raised by the two defendants against the competence of the suit.

In upholding the objections raised by the Attorney-General of the Federation and the National Assembly (the defendants), Justice Idris held that the plaintiffs (the 11 PDP states) failed to establish any cause of action capable of activating the original jurisdiction of the apex court.

He struck out the suit for want of jurisdiction, proceeded to also determine the case on the merits, and dismissed it.

However, Justice Obande Ogbuinya, in his dissenting judgement, held that the case succeeded in part, adding that although the president could 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.

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 Nigerian Constitution, 1999, and the suspension of elected officials including the deputy governor of the Rivers State, Ngozi Odu, 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).

The apex court’s verdict

The apex court noted that its verdict 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,” he 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.

Plateau example

It would 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 replaced them with Major-General M.C. Alli (retired) 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 replacing with an emergency administrator, are unconstitutional, null and void on the ground that it is not only unauthorised by any of the provisions of the 1999 Constitution of Nigeria but is also a positive contravention of the explicit prohibition contained in section 11(4) and (5) of the said Nigerian Constitution 1999.

In its judgement 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 judgement, 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 judgement, Justice Idris Kutigi held that the appointed administrator was in charge of Plateau 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 authorization 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 contrast, the emergency rule imposed by President Goodluck Jonathan in 2013 declared state of emergency in Adamawa, Borno and Yobe states following years of violence, but did not tamper with the elected officials.

Analysts differ on verdict

Dayo Akinlaja (SAN) expressed surprise that such a decision was made because it goes against “the standpoint of a literal perspective of the provisions of the constitution in issue.”

He noted 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 judgement restated 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.

Professor Eno Cyprian said, “If this (the judgement) is true, then we have crossed the Rubicon of civility to the highest stage of primitivism.

“How on earth can an elected president suspend an elected governor in a democracy? As a monarch, military ruler or what? Where in that constitution is such power donated?

However, E.M.D. Umukoro Esq said tthe 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.

APC, PDP react

The All Progressives Congress (APC)’ National Director of Publicity, Bala Ibrahim, in an interview with Daily Trust, said: “The position of the constitution is that it is supreme over everything and everyone in the country, and it is the Supreme Court that has the supreme power to interpret it.

“If the Supreme Court says the president has such powers, I don’t think anybody else has the authority to interpret otherwise.”

Judgement may lead to tyranny – PDP

The National Publicity Secretary of the Peoples Democratic Party (PDP), Ini Ememobong, said the judgement might be a recipe for totalitarianism and tyranny.

He said the interpretation of the judgment had the “potential to reverse the hard-won democratic gains by unwittingly making state governments completely subservient to the Federal Government, forcing them to seek to ‘connect to the centre’ by joining the ruling party, as we are already witnessing.”

How emergency rule is applied in other African countries

In South Africa, emergency powers are granted by Section 37 of the Constitution in times of threat of war, invasion, insurrection, disorder, or natural disaster, and only to restore peace and order and it is approved for 21 days.

In Kenya, the state of emergency can be declared under Article 58 of the Constitution for war, invasion, insurrection, disaster, or public emergency, and requires National Assembly approval for extensions beyond 14 days.

In Ghana, the president holds emergency powers under Article 31 of the 1992 Constitution, acting on the advice of the Council of State and must be presented to Parliament within 72 hours for approval, otherwise it expires after seven days, and if approved, can last up to three months, with specific regulations enacted through Instruments (like EI 1) to manage curfews, restrictions, and detentions, subject to review by tribunals.

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