…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
IN 1999, Nigerians rejoiced at the seeming exit of the military from power, after annulling and desecrating all our democratic institutions for years. But when General Olusegun Obasanjo, a retired military officer, emerged as the winner of the presidential election, we all waited with bated breath on the fate of democracy under such a setting.
We didn’t have to wait too long, though, as all subsequent elections became a do-or-die affair and those who were trusted with power became so drunk with it that they were plotting to extend even their second tenure. Things have never been the same ever since, and all that we now see are snippets of that infamous era. The military has not really relinquished power; they are in the National Assembly, they form the shadow government of every regime in power, they have cornered all the important contracts, they influence government policies and decisions, they sit on the board of many private companies, they own land in the choicest locations across the country and they are politically very active.
President Umaru Yar’Adua, who emerged as the next civilian president, did not stay long in office, and even the one chosen to conclude his tenure was eventually chased out of office for another military general to cling to power. What do the military want from Nigeria? Obasanjo served his term as Nigeria’s Head of State to the fullest, came back as President and also served his two terms. Buhari took over the reins of power as Head of State, and like Obasanjo, he returned as President and served his uneventful two terms.
Against all odds, a civilian democrat emerged as President in 2023 with the mantra of the Renewed Hope Agenda. This new President had been in the trenches as he was instrumental to the exit of the military, in a way. He was an activist and a federalist, so you didn’t need to campaign for him on the values of democracy, devolution of powers, state police, good governance and true federalism, with him in charge as President. You would almost go to sleep with your two eyes closed, hoping to wake up with a truly restructured Nigeria.
In March 2025, a civilian coup was imposed upon the people of Rivers State and Nigeria as a whole, when the activist President unilaterally declared a state of emergency in the State, suspended democratically elected officials of the state, including the governor, the deputy-governor and all members of the State House of Assembly. A retired military officer was appointed as the sole administrator.
This didn’t come as a surprise, given the ambition of the President to remain in office by all means possible. Rivers State was too precious to toy with for both its economic and electoral values. A lot had changed from the days of the President’s activism, as a member of the dreaded National Democratic Coalition (NADECO), a campaigner for fiscal federalism, resource control and the rule of law.
The only option left for the people was to run to the last hope of the common man, the judiciary. Several cases were filed in court, especially in Port-Harcourt, but they were all transferred to Abuja in very controversial circumstances, leading to strident protests by some of the plaintiffs in those cases. Eventually, all the cases were thrown out on technical grounds of lack of locus standi, absence of jurisdiction, etc.
But there was one of the cases pending before the Supreme Court, begging for a definitive judicial pronouncement on the issue of a state of emergency. Although the case was filed early enough, it took Nigerians practically crawling on their bent knees for it to be fixed for hearing. And this was after the sole administrator had conveniently concluded his presidential assignment in the oil-rich state. Eventually, the Supreme Court delivered its judgment in the case last week, declining jurisdiction to entertain the case filed by eleven States of the Federation.
“Jurisdiction is the lifeblood of adjudication. It is the authority conferred on a court to hear and determine a matter, and without it, any proceedings conducted or judgment delivered are a nullity, no matter how well reasoned. In determining whether it has jurisdiction, the Court is guided strictly by the Plaintiffs’ originating processes, particularly the originating summons and supporting affidavits, since it is the Plaintiffs’ claim that defines the scope of the Court’s jurisdiction. Section 232(1) of the Constitution confers original jurisdiction on this Court in disputes between the Federation and a State or between States, provided the dispute involves a question on which the existence or extent of a legal right depends…
Upon a careful examination of the Plaintiffs’ questions and reliefs, it is clear that their grievance arose principally from the declaration of a state of emergency in Rivers State, the suspension of the Governor, Deputy Governor and House of Assembly of that State, and the appointment of a Sole Administrator. However, none of the Plaintiffs represents Rivers State, and neither did they establish any authority to litigate on its behalf was there any deposition showing that a state of emergency had been declared in any of the Plaintiffs’ States. The Plaintiffs also relied on an alleged statement made by the Attorney-General of the Federation during a media briefing, which they construed as a threat to their respective States. Such a statement, standing alone, cannot constitute an actionable conduct of the Federation itself for the purpose of invoking Section 232(1). Complaints directed against individual officials or functionaries of the Federal Government, even when acting in their official capacities, do not amount to disputes between the Federation and a State within the contemplation of the Constitution. In the circumstances, the Plaintiffs failed to disclose any reasonable or justiciable dispute between them and the Federation capable of invoking the original jurisdiction of this Court. The absence of a competent cause of action is fatal and deprives this Court of jurisdiction. Consequently, the suit is incompetent and must be struck out.”
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 as 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 the declaration of a state of emergency, if one is not permitted to interpret 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 a 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 that 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 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.”
- Adegboruwa is a Senior Advocate of Nigeria, SAN
- https://thegavel.com.ng/the-dangers-of-legalizing-civilian-dictatorship/