Gains From Supreme Court State of Emergency Judgement -By IfeanyiChukwu Afuba

Finally, after nine months of waiting, the Supreme Court gave a verdict on the Rivers State emergency rule suit filed by some States against the federal government. Delivery of the judgment itself stands as the first victory for constitutional democracy. The action was filed by governors of eleven PDP controlled States on April 18, 2025, a month after the vexed suspension of democratic governance in Rivers State under guise of state of emergency. Perhaps, constitutional mandate vesting Supreme Court originating jurisdiction only on government versus government litigations, prevented Simnalayi Fubara, the elected Governor of Rivers State
from instituting the action himself. If there was no legal constraint, vacillating Fubara did not seem willing to take the bull by the horns. He appeared concerned with survivalist maneuvers, focused on power – sharing deals rather than defence of democratic values. As a number of PDP governors succumbed to the APC’s power – flexing, decamping to the ruling party for cover, many wondered what fate awaited the suit. To complicate matters, the apex Court maintained shouting silence, bringing up the case for hearing, only after a stranger had acted as Governor of Rivers State for six months.

There had been widespread fear that the suit was not going to be heard. As illogical as it sounded, that was the feeling held by many. And that said a lot about the bewilderment with which Nigerians viewed the state of the nation. Season of anomie, Wole Soyinka, would have said in his less partisan days. Between Mohammudu Buhari’s contempt for the federal character principle enshrined in the Constitution, and President Bola Tinubu’s obsession with reelection, the reality of power was no longer lost on Nigerians. No one still says, it can’t happen here. In 2007, Olusegun Obasanjo pulled the strings within his reach to become life President. Nigeria narrowly escaped being reduced to Paul Biya’s Cameroon, Yoweri Museveni’s Uganda and other political circuses of twenty – first century Africa. But the real assault lies not in the squalid scheme of self – succession. It is captured in the gimmickry by which the plotter in chief looks straight up and declares that no evidence shows a third term was attempted! In this climate of disorder, what would happen if the judiciary failed to pronounce on the emergency rule suit? Would you go to the present national assembly for intervention?

What do we make of the long – sought judgment? It represents a win for both the protagonists and antagonists of emergency rule. We will not be detained by the technicalities of law in our consideration of the judgment. With the English writer, Graham Greene, we opt to go for the heart of the matter. The contention was never about constitutionality of state of emergency but it’s practical meaning. The dispute, simply and squarely, is that the President does not have the power to suspend the Governor and or House of Assembly of a State, pursuant to state of emergency. After the conventional rigmarole of fair hearing of parties and juxtaposition of perspectives, the lead judgment addressed the substance of the matter. It did so with a dose of doublespeak. First, the judgment affirms permissibility of the President to “interfere” with a State’s executive or legislative institution under emergency rule. The definition of interfere in the context is not given. The ensuing silence is aligned to the vague character of state of emergency in the Constitution. “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.” One thing is clear from the above. This declaration assigns a role to the President in State establishment, for the purpose of resolving emergency situation. According to the justices, the reality of this role is that it may interfere with constituted state authority.

Then, in another breath, the judgment laid out the incapacitation of the President on elected state authority even in the execution of emergency declaration. “No arm or tier of government is constitutionally superior to another, and none may lawfully usurp the powers expressly vested in another.” It went further to limit the President’s latitude on emergency measures. “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.”

Although this section of the majority judgment attempted to place restrictions on presidential emergency power, the boundaries it weaves around it, lack specifics. The judicial interpretations are imprecise; in fact elastic, as to throw up more questions on what were supposed to be answers to originating questions. It sounds contradictory to proclaim that the government of a State is inviolable and at the same time approve the intrusion of another tier of government in exercise of the same authority.
How far does ‘interfering’ with state institutions go? Does interference cancel the existing order in the State? The act would cease to be interference if it sets aside the State’s constituted authority. Interference then would graduate from
involvement to usurpation. The jurists seem to have recognised the lacuna in their interpretation. A source of redress is presented in the submission: “The exercise of such powers remains subject to judicial review to prevent arbitrariness or abuse.” More questions. Was this review available when sought in the six months of emergency rule in Rivers State? Having come this far in determination of the application, was the appointment of a sole administrator “corrective, proportional (to the issue of checks and balances between arms of government)”? Was it “directed towards restoring constitutional governance?”

Mercifully, the dissenting judgment by Justice Obande Ogbuinya unequivocally held that the President is incompetent to suspend the government of a State of the federation. Constitutional provisions on state of emergency do not grant such powers. The verdict stands out for it’s brilliant and courageous contribution to Nigeria’s political civilisation.
Agreeing with this judicial interpretation comes naturally. Not even in a situation of war with another country does the 1999 Constitution prescribe the dismantling of democratic structures and institutions. The Constitution explicitly identifies resignation, death, impeachment, order of court of competent jurisdiction as the conditions by which the President or Governor vacates office. Nowhere in the several compilations is state of emergency listed as one of the ways of removing a Governor.

It’s a point of irony that the same Supreme Court which views local government independence from States as a dogma does not see the current state of emergency model as invasion by the federal government. On December 5, 2025, the Supreme Court had this to say in a case brought by Osun State against the federal government over local government funds. “Just as the federal government cannot interfere in the affairs of the States, being the second tier of government, the State government equally lacks the constitutional authorities to interfere in the affairs of the local government councils, which are autonomous bodies created by the Constitution” (The Nation.)

While many Nigerians consider the judgment on Rivers State emergency rule a case of closing the stable doors after the horse bolted, the belated intervention is still of some value. Concessions flowing from the engagement, however small, serve to shrink the ground of power abuse. The awareness, the pressure, the stakes on accountable democracy are building up. The APC – led federal government will think twice next time about embarking on a state of emergency trip. It was never about their being in doubt of the absurdity; but about political convenience, just as the PDP which made one of the most eloquent criticism of the highest Court’s judgment, had pontificated on the merits of emergency rule when it was in power. Democracy is alive when the people are not taken for granted.