The Supreme Court has upheld the power of the President to declare a state of emergency in any state to prevent a breakdown of law and order or degeneration into a state of chaos or anarchy.
The apex court, in a split decision of six-to-one on Monday, held that the President, during a state of emergency, can suspend elected officials, but that such suspension of elected officials must be within a limited period, not perpetual.
Justice Mohammed Idris held, in the lead majority judgment, that Section 305 of the Constitution empowers the President to deploy extraordinary measures to restore normalcy where emergency rule is declared.
He said, “Section 305 of the Constitution vests in the power to declare a state of emergency where there exists imminent danger of invasion or actual breakdown of public order or safety of such gravity as to endanger the stability or continued existence of the federation or any part thereof.”
Justice Idris recalled instances in the past, since the restoration of democratic governance in the country in 1999, where states of emergency were declared and elected officials were either suspended or retained in office while the emergency rule lasted.
He noted that, unlike as specifically provided in the constitutions of India and Pakistan, Section 305 of the Nigerian Constitution is not specific on the nature of the extraordinary measures to be deployed, thereby granting the President the discretion to decide on how to go about it.
The judge held that since the constitution affords the President the discretion to decide on what extraordinary measures to be adopted, his suspension of elected officials for six months and appointment of a sole administrator were not unconditional.
Justice Idris also held that there was nothing wrong with the National Assembly adopting the voice vote method in deciding how to approve the emergency rule declaration made by President Tinubu in Rivers State.
He further held that the National Assembly has the prerogative to decide on the voting style to be adopted at any time, as provided in the Legislative Houses (Powers and Privileges) Act.
The judgment was on the suit, marked: SC/CV/329/2025 filed by the suit filed by Adamawa and 10 other Peoples Democratic Party-led states, challenging the propriety of the state of emergency declared by President Bola Tinubu in Rivers State, during which elected state officials were suspended for six months.
Justice Idris, in the earlier part of the judgment, upheld the preliminary objections raised by the two defendants against the competence of the suit.
In upholding the objections raised by the Attorney General of the Federation (AGF) and the National Assembly (the defendants), Justice Idris held that the plaintiffs (the 11 PDP states) failed to establish any cause of action capable of activating the original jurisdiction of the apex court as provided in Section 232(1) of the Constitution.
He noted that three conditions must be met before the Supreme Court can exercise its original jurisdiction on any case, which includes that there must be a dispute between the federation and a state or states, or between states; the dispute must involve issues of facts or law, or both, and the dispute must relate to an exercisable right or rights.
He held that the plaintiffs did not show that the state of emergency declared in Rivers affected them in any way or that an emergency rule was declared in any of the plaintiff states.
The judge also noted that the plaintiffs failed to show that they were authorised by the affected state – Rivers State – to institute the suit on its behalf.
He noted from their filings, it was evidence that their grievances were about the declaration of a state of emergency in Rivers, suspension of elected officials in the state, and the appointment of a sole administrator, which they claimed were unconstitutional.
Justice Idris held that the plaintiffs failed to establish the existence of any actionable dispute between them and the federation to require the Supreme Court to exercise its original jurisdiction to determine the case.
He struck out the suit for want of jurisdiction, but proceeded to determine the case on the merits and dismissed it.
Justice John Okoro, Chioma Nwosu-Iheme, Haruna Tsammani, Stephen Adah, and Habeeb Abiru agreed with Idris.
However, Justice Obande Ogbuinya dissented and held that the case succeeded in part.
Justice Ogbuinya held, among others, that although the President could declare a state of emergency, the President cannot use such power as a tool to suspend elected state officials, including governors, deputy governors, and members of parliament.