The matter should have ended at this point, as the absence of jurisdiction deprives the court of the power of further judicial intervention in the case. In my humble view, the ugly example of the state of emergency in Rivers State was enough cause of action for any other state that seeks protection from the court, from arbitrariness and dictatorship of the civilian. Since the President did not consult with or seek the consent of the people of Rivers State before making the declaration, any State within the Federation should possess the requisite locus standi to seek a judicial determination of section 305.
To my mind, the ugly precedent already laid in Rivers State serves enough caution to all other States of the Federation. After declining jurisdiction, the Supreme Court then went into what it termed a ‘considered discussion’ of section 305 in respect of the scope and exercise of the powers conferred on the President when declaring a state of emergency. Let us hear the Apex Court.
“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. 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. In interpreting Section 305, this Court is guided by settled principles of constitutional interpretation as restated in the cases of SKYE BANK PLC VS. IWU (2017) LPELR-42595 (SC); NAFIU RABIU VS. STATE (1980) 8 9 SC 130; A. G. FEDERATION VS. ABUBAKAR (2007) 10 NWLR (PT. 1041) 1 and SARAKI VS. F. R. N. (2016) 3 NWLR (PT. 1500) 531.
‘‘Applying these principles, Section 305 of the Nigerian Constitution is clear in its grant of power to proclaim a state of emergency but silent on the precise content of the “extraordinary measures” that may follow. This silence is intentional. Emergencies are inherently situational, varying in scope, intensity, and threat. The Constitution therefore entrusts the President with discretion to determine the measures required to restore peace and security, subject always to constitutional limits, proportionality, legislative oversight, and judicial review.”
The ‘considered discussions’ embarked upon by the Court invariably cemented the discretionary powers of the President in relation to declaration of a state of emergency, if one is not permitted to interprete the reasonings and conclusions of the Court as encouraging these arbitrary powers.
Curiously, the Court did not review or discuss the facts and circumstances that the President claimed to have actuated the capricious exercise of power, whether there was sufficient threat of war, an outbreak of any natural disaster of such magnitude as to prevent governance or whether the events in Rivers State at the time qualify for such declaration.
Contrasting the cases of Plateau, Ekiti, Adamawa and Yobe states landed the court on the proverbial fence, trying to maintain judicial neutrality in the face of a monumental constitutional aberration. In those flowery sophistry that characterised the decision of the Supreme Court on this national embarrassment, it unconsciously rubber-stamped the decision of the President, leaving him even with wider discretion to repeat the anomaly and with guidelines on how to perfect it. We all live in very troubled times. One day, like a movie, a President woke up and decided to remove the Chief Justice of Nigeria through an ex-parte application filed at the Code of Conduct Bureau and proceeded to swear in another Justice of the Supreme Court in his place. The judiciary danced around it until it became too academic to decide the point, whilst the Acting CJN was confirmed and served out his tenure.
Another President has suspended a governor, his deputy and all members of the House of Assembly of a State. The judiciary kept blowing the smoke until the fire in the case was completely extinguished and the sole administrator served out his controversial tenure. The Supreme Court concluded this matter in the following words. Please read between the lines and make your own meaning out of them.
“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.”
Concluded.
Adegboruwa is a Senior Advocate of Nigeria (SAN).
