EMERGENCY POWERS, JURISDICTIONAL BOUNDARIES, AND DEMOCRATIC SAFEGUARDS

In this opinion article, Dr. Monday Ubani SAN, human rights activist and former Nigerian Bar Association (NBA) Vice President, critically analyzesthe latest Supreme Court’s decision on Emergency Rule and Suspension of Elected Officials in AG Adamawa & 10 Ors v AG of the Federation & Anor (Suit No. SC/CV/329/2025)

Abstract

The Supreme Court’s decision in Attorney-General of Adamawa State & 10 Ors v Attorney-General of the Federation & Anor delivered on 15th of December, 2025 represents a watershed moment in Nigeria’s constitutional jurisprudence on emergency powers, executive discretion, and democratic governance. Decided by a majority of six to one, the Court upheld preliminary objections on jurisdiction and locus standi, yet proceeded controversially to pronounce on the substantive constitutionality of the President’s emergency powers under Section 305 of the 1999 Constitution (as amended). This article interrogates the jurisdictional objections, the Court’s interpretation of emergency powers, the safeguards articulated against executive excesses, and the dissenting opinion. It further situates the decision within comparative constitutional practice and advocates a progressive re-engineering of access to justice in Nigeria, particularly in matters of profound national importance.

1. Background to the Decision

The dispute arose from a legal challenge instituted by Adamawa State and ten other States governed by the Peoples Democratic Party (PDP) against the President’s declaration of a state of emergency in Rivers State. Central to the challenge was the six-month suspension of elected state officials, namely, the Governor, Deputy Governor, and members of the State House of Assembly as part of measures aimed at restoring public order and averting an imminent breakdown of law and order.

In a split decision of six to one, the Supreme Court dismissed the suit, upholding the preliminary objections of the defendants. However, despite striking out the action on procedural grounds, the Court proceeded to pronounce on the substantive constitutional questions raised. This dual approach of disposing of the suit procedurally while addressing the merits, has understandably generated intense scholarly, professional, and public debate.

2. Preliminary Objection on the Original Jurisdiction of the Supreme Court:

Section 232 of the 1999 Constitution vests the Supreme Court with original jurisdiction in disputes between the Federation and a State, or between States, provided such disputes involve questions of law or fact upon which the existence or extent of a legal right depends.

The plaintiffs sought to invoke this jurisdiction by framing the matter as a constitutional dispute between States and the Federation. The Supreme Court, however, upheld the preliminary objection filed by the Attorney-General of the Federation and the National Assembly, holding that the subject matter of the suit did not fall within the narrow class of disputes envisaged under Section 232.

The Court reasoned that the suit did not concern the proprietary, constitutional, or legal rights of the plaintiff States vis-à-vis the Federation. Rather, it was a challenge to an executive action taken pursuant to constitutional emergency powers in another State. In reaffirming its long-standing jurisprudence, the Court reiterated that its original jurisdiction must be strictly construed and cannot be expanded by the ingenuity of counsel or by the political significance of a dispute.

This holding is consistent with earlier authorities that caution against transforming the Supreme Court’s original jurisdiction into a forum for generalized constitutional grievances or political disagreements.

3. Preliminary Objection on Locus Standi of the Plaintiff States

Locus standi continues to function as a formidable gatekeeping doctrine in Nigerian constitutional adjudication. It requires a plaintiff to demonstrate sufficient interest and a direct, personal injury or threat thereof. Nigerian courts have historically adopted a restrictive approach, particularly in public law and constitutional litigation.

Relying on established authorities from Abraham Adesanya v President of Nigeria to Okonjo-Iweala v Fawehinmi, the Supreme Court held that the plaintiff States lacked the requisite locus standi. The alleged injury was neither direct nor personal; it was speculative and rooted in political disagreement with the President’s actions in another State.

The Court reiterated that Nigerian courts are not venues for abstract political contests or hypothetical injuries. The decision thus reflects doctrinal fidelity to precedent, even if it raises troubling questions about access to justice in matters of grave national consequence.

4. Decision on the Merits: Scope of Presidential Emergency Powers

Notwithstanding its findings on jurisdiction and standing, the Supreme Court proceeded to consider the merits. The majority judgment, delivered by Justice Mohammed Idris, adopted a purposive and pragmatic interpretation of Section 305 of the Constitution.

The Court held that the President possesses broad discretionary powers to declare a state of emergency where there exists a real and imminent threat of anarchy or breakdown of law and order. Although Section 305 does not expressly enumerate the specific measures available to the President during an emergency, the Court held that the provision necessarily implies the authority to take extraordinary measures required to restore constitutional order.

The majority further held that the temporary suspension of elected state officials may fall within the spectrum of permissible emergency measures, provided such actions are proportionate, time-bound, and directed solely at restoring normal governance. The Court rejected the argument that emergency powers are merely symbolic or declaratory, emphasizing that powers conferred by the Constitution must be effective and meaningful.

5. Constitutional Safeguards Against Executive Overreach

While affirming expansive presidential authority, the Supreme Court was careful to emphasize that emergency powers are not absolute. Several constitutional safeguards were articulated:

1. Legislative Oversight:

Emergency proclamations and consequential actions remain subject to the approval and supervision of the National Assembly. The Court noted that the declaration and its attendant measures received legislative approval in accordance with parliamentary procedures.

2. Temporal Limitation:

Emergency rule is constitutionally circumscribed to a defined duration – six months in the present case, subject to renewal strictly in accordance with constitutional requirements.

3. Judicial Review:

The courts retain the power to review the legality, necessity, and proportionality of emergency measures undertaken by the President. 

These safeguards, the Court maintained, prevent emergency powers from degenerating into instruments of permanent authoritarian control.

6. The Dissenting Opinion of Justice Obande Ogbuinya

Justice Obande Ogbuinya delivered a forceful and principled dissent. While concurring that the President validly exercised the power to declare a state of emergency, His Lordship rejected the proposition that such power extends to dismantling democratically elected structures.

According to the dissent, the suspension of governors, deputy governors, and legislators strikes at the heart of the constitutional sanctity of the electoral mandate. Emergency powers, though broad, cannot be interpreted to impliedly repeal or suspend express constitutional provisions guaranteeing democratic governance at the state level.

The dissent represents a robust defense of constitutional democracy and reflects a deep concern about the normalization of executive dominance under the guise of emergency governance.

7. Conclusion: Doctrinal Consistency, Democratic Anxiety, and the Way Forward

The Supreme Court’s decision demonstrates doctrinal consistency in its restrictive approach to locus standi and original jurisdiction. On the merits, it affirms a security-conscious and pragmatic interpretation of presidential emergency powers, while articulating constitutional guardrails against abuse.

However, the decision also exposes enduring tensions in Nigerian constitutional law, particularly the restrictive approach to standing in matters of overwhelming public importance. Comparative constitutional systems such as India, Kenya, and South Africa have progressively liberalised standing rules, embracing public interest litigation as a mechanism for democratic accountability and constitutional development.

For Nigerian jurisprudence to evolve in line with international best practices, a more liberal approach to locus standi, especially in cases of grave national consequence must be considered. Such an approach would enhance democratic oversight without undermining judicial discipline.

Ultimately, while this decision reaffirms executive emergency powers, it leaves unresolved the danger posed by an unpatriotic or overreaching executive exploiting undefined emergency measures under Section 305 to derail democratic governance. The dissent of Justice Ogbuinya, though appealing to public-interest advocates, does not confront the threshold issues of jurisdiction and standing under current Nigerian jurisprudence.

In the absence of judicial re-orientation, legislative intervention through constitutional amendment appears to be the most viable path for those aggrieved by the breadth of executive authority affirmed in this case.  A word is enough.

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