Yesterday, 15 December, the Supreme Court of Nigeria struck out the suit filed by 11 governors of states controlled by the Peoples Democratic Party (PDP), challenging the emergency rule imposed on Rivers State by President Bola Ahmed Tinubu on 18 March. The suit: AG Adamawa & 10 Ors vs. AG Federation and the National Assembly, was dated 20 March, and filed on 8 April. In March, President Tinubu, relying on Section 305, which affirms the powers of the President to declare a state of emergency, went a step further to suspend all democratic structures in Rivers and then appointed Air Vice Marshall Ibok Ette Ibas (rtd) as the sole administrator of that state for six months. The sole administrator’s tenure expired on 18 September, and all the suspended persons have been reinstated. Almost nine months after, and three clear months after the suspension was lifted, the Supreme Court has now finally delivered its judgement on the matter. The Supreme Court heard the parties on 21 October and reserved judgment. More than a month later, their Lordships have now given their verdict.
It was a split decision of 6–1, with six of the jurists upholding the preliminary objections of the respondents in the matter. Justice Mohammed Idris who delivered the leading majority judgement dismissed the suit as incompetent on two grounds viz: (a) that the plaintiffs – the 11 PDP governors – failed to establish any cause of action, a dispute between them and the Federation, to activate the original jurisdiction of the Supreme Court – more or less as if they were acting as busybodies, and (b) that even if jurisdiction could be established, the suit would still have failed. Jurisdiction is everything in our judicial system. It establishes the legal authority of a court to hear a case, and it can be invoked at any stage in a legal proceeding. It is indeed “the life-blood of adjudication.” The jurisdiction of the Supreme Court – inherent and appellate – is defined in Sections 232 and 233, but the problem with our judiciary is that many of our judges evade a particular matter of concern, on this technical basis, even when it is in the public interest to treat every case on its merit, on the basis of the facts.
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It is perhaps for this latter reason that the Supreme Court in this matter acted rightly to respond to the substantive issue raised by the 11 Governors. They had asked the Supreme Court to determine “whether upon a proper construction and interpretation of the provisions of Sections 1(2), 5(2), 176, 180, 188 and 305 of the 1999 Constitution, 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 component 36 states of the Federation of Nigeria and replace same with his own unelected nominee as a sole administrator, under the guise of, or pursuant to, a proclamation of a state of emergency in any of the states of the Federation, particularly in any of the states?” They wanted the Supreme Court to declare the suspension of democratic structures in Rivers State, and the appointment of Ibok Ette Ibas thereby “unconstitutional, and unlawful.” The respondents, the AGF and the National Assembly disagreed on the grounds that the President acted in the best interest of Rivers state and that he only suspended the gladiators in power, he did not remove them. The case was heard and determined by Justices John Inyang Okoro, Chioma Nwosu-Iheme, Haruna Simon Tsanmmani, Obande Festus Ogbuinya, Stephen Jonah Adah, Habeeb Adewale Abiru and Mohammed Baba Idris. Their Lordships held that Section 305 empowers the President to declare a state of emergency to prevent a breakdown of law and order or a descent into chaos and anarchy in any part of the Federation and that he can adopt extraordinary measures, and that the Constitution entrusts him with discretion in this regard.
In reporting the judgement yesterday, most Nigerian media outlets gave the impression that their Lordships had decided that the President can suspend democratic structures and remove elected officials but only for a limited period. If they were to do so, that would have amounted to dressing up the situation in Rivers state with a cloak of legality which would be a very scary development indeed. But a quick review of the leading judgement, which has been in circulation since yesterday does not indicate anywhere in the rather short judgement, a summary of it really, where their Lordships made any such direct affirmation. To do so would have been a nod to dictatorship. Where the confusion arises from may be in the declaration “… that emergency powers are not governed by a rigid formula. The constitutionally permissible response depends on the magnitude of the threat, the functionality of state institutions, and the necessity of intervention to restore constitutional order”. Or that the President is granted a scope of discretion in the determination of the extraordinary measures on which the law is intentionally silent. Section 305 (3) is very clear about the circumstances under which the President of Nigeria can declare a state of emergency, and certainly there is a reference to “extraordinary measures” to restore peace and security and to avert danger in Section 305 (3) (c and d) but nowhere does this entire section of the 1999 Constitution confer unfettered powers on the President. “.. The President’s discretion under Section 305 is not “unfettered”, the judgment said.
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The entire spirit of the submission was to explain the law as it is and offer an interpretation of Section 305. It was further determined that “On the whole, a proclamation of a state of emergency is constitutionally valid where it is issued under Section 305 of the1999 Constitution of the Federal Republic of Nigeria (as amended), approved by not less than two-thirds majority of all the members of each House of the National Assembly in accordance with their Standing Orders, and implemented through measures that are temporary, proportionate, and directed at restoring constitutional order. The exercise of such powers remains subject to judicial review to prevent arbitrariness or abuse.”
However, there was a voice of dissent – the minority judgement of Justice Obande Ogbuinya. But given the mischievous analysis of the majority judgement that we have seen, even before most persons had seen and read it, it is enough to say that a proper reading of the minority view will also be necessary. This may perhaps be another case whereby a dissenting judgement attracts more public interest and discussion. The majority would always have their way, but we have also had situations in the past when dissenting judgements sounded more compelling and realistic as in the case of Sunday Jackson v. The State (per Helen Ogunwumiju, JSC).
It seems to me that the Supreme Court’s decision with regard to the scope and extent of Section 305 with regard to presidential powers is historic, but it could also be controversial in certain respects. There is still, for example, a major contention about the Rivers situation. There was a series of protests in the state by youths, elders and ordinary people that their state was not in any state of imminent danger or chaos to warrant the suspension of democracy. Many believed that the major problem was politics: made more complex than ordinarily by the political machinations of a former Governor, now Minister, Nyesom Wike and his local allies to overwhelm Governor Sim Fubara and capture Rivers State for President Bola Ahmed Tinubu and the ruling party, the APC. It turned out to be a convoluted plot that has now been resolved with Sim Fubara joining the APC and pleading allegiance to President Tinubu and Nyesom Wike personally and to the APC as a party. Ibok Ette Ibas who served as sole administrator for six months has refused to give any account to the Rivers people as demanded; instead he has been rewarded with an ambassadorial appointment. The majority judgement of the Supreme Court overlooks this significant sub-text to the crisis in Rivers State. The same 1999 Constitution defines how a state Governor or a Deputy can be removed from office (section 188) and how a state House of Assembly can be dissolved (Section 105), not by any other means. Does the President’s discretion override this? It is axiomatic that sections of the law should not be read in isolation but as a whole. In retrospect, Rivers was about the politics of territorialism and the ambitions of the ruling party. The lead judgement of the Supreme Court would seem to have endorsed not just the President’s actions, but also the removal of the elected representatives of the people by Presidential fiat, and the appointment of a sole administrator who for good measure is even a retired military officer! This, on the grounds that “emergencies are inherently situational, varying in scope, intensity and threat”? What exactly does that mean?
The timelines in this case also show just how slowly the wheel of justice in Nigeria grinds, even at the apex court. Their Lordships took so many months, just to talk about lack of jurisdiction and to interpret Section 305! They have not done substantial justice. They have just spoken the law. When they finally spoke, the original plaintiffs had mostly left the PDP. Delta state, the fifth plaintiff, was the first to formally withdraw from the case, the moment Governor Sheriff Oborevwori defected from the PDP to the APC. Before judgment was delivered, other states in the suit like Enugu, Akwa Ibom, Taraba and Osun had also moved from the PDP to the APC. The Osun State Governor defected from the PDP to the Accord Party. Even the affected state, Rivers, is now an APC state. The six-months fatwa on Rivers state had also lapsed. Even if the Supreme Court had ruled in favour of the plaintiffs, the expected gain had been dissipated. Who is left in the PDP barn to claim victory?
What remains is academic: the interpretation of the law. Those who may be suggesting that in exercising his discretion now articulated by the Supreme Court, the President can act like a monarch, a headmaster of the Federation whose discretion is supreme should be reminded again that the apex court has not said so. This is not India. This is not Pakistan. The President’s action is subject to a check by the National Assembly, with the expectation that Nigeria’s National Assembly will discharge its responsibilities competently. The only danger is that a Nigerian President can on the basis of this judgement overstretch his implied discretion, and exercise the flexibility read into Section 305, to the point of autocracy. This is where the problem lies. Our judges must learn to speak with clarity and certainty. It is important that they do not speak with both besides of the mouth. They must not speak in a manner that compels the public to think that they have kolanuts in their mouth. A Supreme Court judgment that lends itself to ambiguous interpretation can only confuse the public, and look like an attempt at a cover up to serve political interest. This is the more urgent reason why civil society and public interest lawyers should speak up and demand further clarifications from the Supreme Court if need be, hoping that our judiciary would learn to act expeditiously, and not intervene when its wisdom has been rendered academic and technical after the fact. Each time that is the case, we would perhaps say in desperation, along with Mr. Bumble in Charles Dickens’ Oliver Twist that “the law is an ass – a (n) idiot…”
Reuben Abati, a former presidential spokesperson, writes from Lagos.
