Emergency Powers: SANs dissect S-Court verdict on President Tinubu’s authority

By Henry Ojelu

The Supreme Court’s judgment on the suit challenging President Bola Tinubu’s declaration of a state of emergency has triggered intense constitutional debate, reopening old questions about federalism, executive power and the fragility of democratic mandates. While the apex court struck out the case on grounds of locus standi, its pronouncements on Section 305 of the 1999 Constitution have divided senior lawyers.

In this edition, Vanguard Law & Human Rights spoke to four Senior Advocates of Nigeria, SANs, Prof Sam Erugo, Abiodun Owonikoko, Dr Monday Ubani and Wale Edun who offered sharply different readings of the decision, its silences, and its long-term implications for Nigeria’s constitutional democracy.

It’s cautious judgment that leaves federalism largely intact—Prof Erugo

Prof Erugo described the Supreme Court judgment as instructive rather than groundbreaking, arguing that while it affirms presidential discretion under Section 305, it also quietly reined in executive overreach and preserved the core principles of federalism.

According to Erugo, the judgment must first be understood within the hierarchy of judicial authority. Coming from the apex court, it commands acceptance even where it invites criticism. He notes, however, that the presence of a dissenting judgment provides intellectual ammunition for future reforms and constitutional review.

“The Supreme Court judgment on the power of the President to declare a State of Emergency and to suspend an elected Governor and Representatives of the people is instructive but not quite profound,” he said.

“It is instructive because it is coming from the highest court in the land. We cannot challenge the position of the learned justices. When they speak, they speak with finality, and we must accept their judgment as right and pray for a future opportunity to revisit the issue.”

Erugo draws attention to the court’s reliance on locus standi to dispose of the case, stressing that this procedural finding prevented a substantive interrogation of the Rivers State scenario that triggered the litigation.

“It is good to note there was a dissenting judgment that appears to represent the position of most commentators and provide an anchor for informed criticisms and reform. Again, the court, having held that the plaintiffs lacked standing or competence to institute the action, merely proceeded on policy grounds to make pronouncements to guide future actions,” he said.

Rather than attacking the court, Erugo urges lawmakers to revisit the constitutional text itself, particularly Section 305, which the court interpreted as granting the President discretionary powers during emergencies.

“Rather than criticize the Court, we should look at the relevant constitutional provisions again.The legislature may wish to take a second look at the provisions of Section 305 of the 1999 Constitution which was held to give the President some discretion to decide on what emergency measures to take during a state of emergency,” he said.

Erugo acknowledged fears that the judgment could tilt the balance of power in favour of the centre, but noted that the court itself recognised constitutional limits.

“The provision as affirmed in the judgment could alter the balance of power in favour of the President, and against state governors and the federating states. Incidentally, this fear was expressed by the plaintiffs in this case, who claimed that the events in Rivers State and subsequent developments posed a threat to democracy and their respective states,” he said.

Crucially, Erugo highlighted what he sees as a safeguard embedded in the judgment. According to him: “The Apex Court somehow prescribed the limits of the presidential powers, by noting that Section 305 of the Constitution, while silent on the content of the ‘extraordinary measures’ that may follow a declaration, does not expressly confer power on the President to assume or temporarily displace the executive or legislative institutions of a state.

“That omission, the court admitted, is deliberate and reflects Nigeria’s constitutional commitment to federalism and autonomy of state governments. Furthermore, the court specifically held that the president’s discretion under the section is not unfettered and depends on the circumstances of the emergency. Again, it held that the Constitution subjects the proclamation of a State of Emergency to strict legislative control.”

In Erugo’s view, because the case was struck out and the facts were never tested, the judgment poses no immediate danger to democracy.

 In the circumstances, there is no serious implication of this judgment for democratic governance, federalism, and the sanctity of the electoral mandate in Nigeria,” he concluded, adding pointedly that, “the sad reality is that the case of the Rivers State emergency rule may never get to the Supreme Court for determination.”

Judgment constrained by procedure, not substance—Owonikoko

Mr. Abiodun Owonikoko, who was directly involved in the case, takes a measured position, warning against definitive conclusions until the full judgment is released and lamenting the missed opportunity for deeper constitutional clarification.

Owonikoko insists that serious analysis must await the reasoned judgment beyond the summary currently in circulation. He said: “I was involved in the case. Until reasoned judgment beyond the summary is released, it’s difficult to make an informed analysis of the majority decision or even the dissent.”

Nevertheless, he identifies one clear contribution of the judgment: a contextual explanation of the President’s emergency powers.

“One obvious pertinent substance of the judgment is the context. The tension and appropriateness of the President’s power under Section 305 has been clearly explained in the lead judgment,” he stated.

However, Owonikoko stressed that the court never reached some of the most critical issues, particularly what happens after an emergency is declared.

“What the judgment did not get the opportunity to frontally pass upon is what happens 48 hours after a state of emergency is declared and gazetted,” he said.

He underscores the political reality that the Rivers State emergency regime was not merely a presidential act but one endorsed and modified by parliament.

“The emergency regime that operated in Rivers State was approved and modified by the National Assembly,” Owonikoko stated.

In his assessment, the doctrine of locus standi proved decisive, but also limiting. “The absence of locus standi to sue by states deprived the apex court the requisite platform to interrogate the complex intricacies of the President’s discretion to trigger a state of emergency in any given circumstance,” he explained.

Judgment expanded executive power, placed democracy placed on edge—Dr Ubani

Dr. Ubani opined that the Supreme Court judgment was a significant expansion of presidential authority, one that strengthens the executive at the expense of state autonomy and raises troubling questions about the future of elections and federalism.

Ubani argued that the core importance of the decision lies in its approval of broad emergency powers, including the suspension of elected officials.

“The importance of the Supreme Court’s decision lies in its clear approval of broad presidential powers during a state of emergency, including the power to suspend elected state officials. By endorsing this authority, the Court accepted that, in exceptional circumstances, the President may take extraordinary steps to restore order, even where such powers are not expressly stated in the Constitution,” he said.

According to Ubani, the court relied on necessity rather than strict textual interpretation. “Relying on Section 305 of the 1999 Constitution, the Court adopted a flexible interpretation of emergency powers. It treated presidential action as justified by necessity, rather than by strict adherence to constitutional text,” he explained.

This, he warns, has altered Nigeria’s constitutional balance saying: “This approach shifts the balance of power under the Constitution. While the Constitution does not clearly give the President power to suspend elected officials, the Court has now validated that power when it is presented as a temporary emergency measure. The practical effect is a stronger Executive and weaker state autonomy, raising concerns about the future of federalism and the separation of powers.”

Ubani insisted that the judgment goes beyond interpretation into constitutional expansion. “In essence, the Court has gone beyond mere interpretation and has expanded how the Constitution operates in practice. It has set a precedent where executive actions taken in the name of security or public order may later be upheld, even if their constitutional basis is not explicit,” he said.

Still, he acknowledges that the court attempted to set limits. “Although the Supreme Court upheld the President’s powers, it was careful to stress that these powers are not unlimited.

He listed three safeguards identified by the court: National Assembly approval, the temporary nature of suspensions, and continued judicial oversight.

“First, the Court made it clear that a state of emergency cannot stand without the approval of the National Assembly.  Second, the Court stressed that the suspension of elected officials must be temporary and exceptional. Third, the Court left the door open for judicial oversight. Emergency powers are not beyond legal challenge.”

Yet Ubani remains deeply uneasy about the broader consequences. “For democratic governance, the ruling creates a delicate balance between respecting electoral mandates and allowing executive intervention in times of crisis,” he warned.

“From a federalism standpoint, the judgment strengthens central authority and weakens state independence. Most importantly, the decision affects the sanctity of elections.”

Judgment deepened confusion, invites abuse—Edun

Wale Edun offered a more critical assessment, arguing that the Supreme Court neither affirmed the Rivers State emergency nor clearly checked presidential excess, leaving dangerous gaps that could be exploited politically.

He describes the minority opinion as persuasive, even if legally ineffective. “I think the minority opinion is very persuasive but sadly, it is not the judgment of the Court on this matter,” Edun noted.

Contrary to popular belief, Edun insisted the court did not affirm presidential power to suspend democratic institutions. “If I take the published summary of the judgment as snippets of the judgment, then I will say that nowhere in the judgment did the Supreme Court affirm the power of the president to suspend democratic institutions in a State where a State of Emergency is declared. The Supreme Court as a matter of fact held that nowhere in Section 305 of the Constitution is the President empowered to suspend the Executive and legislative arms of a state,” he said.

Edun criticised the court for failing to be explicit.”I would have expected the Supreme Court to have been more specific and direct on this issue but that is what it is,” he said.

He however praised the court’s stance on legislative procedure, particularly its rejection of voice votes.

“The Supreme Court was quite clear that the mode of determining the two-thirds majority in each House of the National Assembly must be a process that will lead to the ascertainment of the two-thirds majority. By implication, the Supreme Court denounced the adoption of voice vote in such a matter of significant national importance,” he explained.

Edun goes further, accusing both the President and the National Assembly of acting outside the Constitution. “This means that the President acted ultra vires his power and the National Assembly illegally approved the exercise of an illegal power,” he asserted.

In his view, the suit’s dismissal on locus standi was a grave error.”I respectfully disagree with the Supreme Court on this.In matters of significant public importance and violation of sacred provisions of the grundnorm, any institution or person should have the locus standi.”

He warns of dangerous precedent. “So, if the affected State Governor cannot challenge the declaration; other States cannot also challenge it, then who now has the locus standi?” he asked.

Edun concluded with a stark political warning. “A President can use it as a tool to intimidate State Governors who are in opposition political parties,” he said, arguing that the Rivers State declaration lacked security justification.

“This does not portend anything good for our democracy and it is a fraudulent way to snatch the electoral will of the people. Since the Supreme Court did not come out clearly to declare the declaration unconstitutional, the agitation would now shift to the National Assembly to amend Section 305 of the Constitution to protect democratic institutions,” he concluded.

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