Nigeria’s supreme court affirms Tinubu’s power to declare state of emergency

The Nigeria’s Supreme Court has affirmed the constitutional power of the President to declare a state of emergency in any state to prevent a breakdown of law and order, chaos or anarchy, the Punch is reporting.

In a decision of six to one on Monday, the apex court upheld the President’s authority under the Constitution to proclaim a state of emergency.

The court further held that, during such a period, the President may suspend elected officials, provided any such suspension is for a limited duration.

Delivering the lead majority judgment, Justice Mohammed Idris held that Section 305 of the 1999 Constitution empowers the President to adopt extraordinary measures to restore normalcy where a state of emergency has been declared.

He noted that the provision does not specify the exact nature of those extraordinary measures, thereby vesting the President with discretion on how to act in such circumstances.

The judgment followed a suit instituted by states governed by the Peoples Democratic Party, challenging the declaration of a state of emergency in Rivers State by President Bola Tinubu, during which elected state officials were suspended for six months. The Supreme Court had reserved judgment in the matter in October.

The plaintiffs were the Attorneys-General of PDP-controlled states, while the defendants were the Federal Government and the National Assembly.

Among other reliefs, the plaintiffs urged the court to determine “whether, upon a proper construction and interpretation of Sections 1(2), 5(2), 176, 180, 188, and 305 of the Constitution of the Federal Republic of Nigeria 1999, the President of the Federal Republic of Nigeria can lawfully suspend, or in any manner whatsoever interfere with, the offices of a Governor and the Deputy Governor of any of the 36 component States of the Federation and replace them with his unelected nominee as a Sole Administrator, under the guise of, or pursuant to, a Proclamation of a State of Emergency in any of the Plaintiffs’ States.”

They also asked “whether, upon a proper construction and interpretation of Sections 1(2), 4(6), 11(4) & (5), 90, 105, and 305 of the Constitution, the President can lawfully suspend the House of Assembly of any of the 36 States under the guise of, or pursuant to, a Proclamation of a State of Emergency in such States.”

In the earlier part of the judgment, Justice Idris upheld the preliminary objections raised by the defendants—the Attorney-General of the Federation and the National Assembly—against the competence of the suit.

He held that the plaintiffs failed to establish any cause of action capable of activating the original jurisdiction of the Supreme Court.

In the six-to-one majority decision, the court agreed that the plaintiffs did not demonstrate the existence of an actionable dispute between them and the Federation to warrant the exercise of the court’s original jurisdiction.

Consequently, Justice Idris struck out the suit for want of jurisdiction. He nevertheless proceeded to consider the substantive issues and dismissed the case on the merits.

However, Justice Obande Ogbuinya dissented, holding that the suit succeeded in part.

He agreed that the President has the power to declare a state of emergency, but held that such power cannot be used to suspend elected state officials, including governors, deputy governors, and members of state legislatures.