Emergency: S’Court ruling assaults federalism

File: Supreme Court of Nigeria

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THE Supreme Court’s unfathomable delay in determining original jurisdiction and the locus standi of plaintiffs contesting the legality of the state of emergency declared in Rivers State and the consequent suspension of elected officials constitutes an incalculable setback for the country’s stunted federalism.

In an enterprise where 24 hours is a long time, the Supreme Court’s nine-month delay has needlessly altered the democratic and federalist landscape in Nigeria.

Therefore, the trial ended as an academic exercise, with the res now dead and buried.

Citing a breakdown of law and order, President Bola Tinubu declared an emergency rule in Rivers on March 18 for six months. The President suspended the governor, Siminalayi Fubara, his deputy, Ngozi Odu and the state lawmakers and appointed a retired naval admiral, Ibok-Ete Ibas, as sole administrator.

Eleven governors filed a case challenging this on April 8 – about three weeks after the declaration. The Supreme Court reserved judgement in the case after hearing it on 21 October and pronounced judgement on December 15.

In its split 6-1 majority ruling, the Court held that the 11 governors (plaintiffs) did not have the locus standi to file the case because “none of the Plaintiffs represents Rivers State, and neither did they establish any authority to litigate on its behalf.” This is a technical avoidance of responsibility.

The plaintiffs intended to seek the Supreme Court’s interpretation of Section 305, and that the President acted in error by declaring a state of emergency in Rivers in contravention of the Constitution and suspending elected leaders.

They also sought a shield from the highest court so that they would not suffer the same fate in the future, especially as opposition governors.

Their lordships’ delay in handling the case created uncertainties that changed the political landscape countrywide. Some of the plaintiffs had left the PDP under which they filed the suit, while the Rivers elected leaders, including Fubara, had defected to the ruling APC.

The Rivers emergency rule issue is a sensitive national matter that holds precedent for the country’s democracy and federalism.

In a crucial matter of this magnitude, judicial activism is required. Their lordships should have allowed an amendment to the prayers of the plaintiffs that would allow them to join the governor of Rivers and other relevant officials in the suit in the national interest.

Without a doubt, if their lordships had given the matter expeditious hearing within the six-month emergency period, there would have been time for the elected officials who have locus standi to file the case to do so and get justice.

The Supreme Court’s ruling, coming at a time when Nigeria is drifting towards a one-party state and the President enjoys apparent omnibus powers, is dangerous.

The President is already regarded as one of the most powerful in the world. He appoints the police IG, the Service Chiefs, the DGs of the SSS, NIA, EFCC, Civil Defence, FRSC, INEC, Prisons, Immigration, Customs, CBN and other critical office holders.

Nigerian courts are notorious for delivering confusing rulings in cases of the same status.

For instance, when Tinubu took the centre to court for seizing LG funds in Lagos, the Supreme Court ruled that the centre was wrong and ordered that the seized allocations be released. The precedent was blatantly ignored by the same Supreme Court in the recent case in Osun State.

While analysing the essence of Section 305 and other sections relevant to the case, the justices were strangely silent on the specific “extraordinary measures” the President may undertake under an emergency rule.

This covert affirmation of the powers of the President further expands the perceived overreach and makes him a tyrant and a dictator. Here, Lord Acton’s timeless assertion that “power tends to corrupt and absolute power corrupts absolutely” is pregnant with meaning.

Worse, if the country has an unreasonable president in the future, constitutional democracy will be imperilled.

The three arms of government have failed Nigeria, particularly with their involvement in the Rivers case.

While there was no justifiable reason for declaring emergency rule and suspending elected leaders by the President, the National Assembly sided with him to give teeth to the constitutional aberration. The Supreme Court has just stamped the anomaly with its judicial imprimatur.

In classical federalism, the centre and the federating units should exercise powers as constitutionally enshrined. The President cannot suspend elected leaders under whatever circumstances; discretion or “extraordinary measures” simply do not apply.

There is a precedent the Court should have followed. Goodluck Jonathan declared emergency rule in Adamawa, Borno and Yobe states in 2014 but retained the governors and the parliaments.

The CJN, Kudirat Kekere-Ekun, must salvage the judiciary. Some of the rulings of the courts under her watch leave so many gaps that can be exploited by politicians to undermine constitutional rule.

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