Femi Falana is a human rights attorney and Senior Advocate of Nigeria (SAN). In this interview, he discusses the Supreme Court’s decision upholding the President’s authority to take extraordinary steps to reestablish law and order in any state where an emergency has been declared in order to keep it from collapsing. He also discusses how, among other things, the Supreme Court has offered certain guidelines to ensure that there won’t be any debate the next time the president announces a state of emergency. JOY ANIGBOGU presents the passages:
In his ruling, Justice Idris of the Supreme Court stated that as section 305 does not define the precise nature of the extraordinary measures, the President may exercise his discretion. What might this ruling mean for Nigerian politics in the coming years?
To be fair to the Supreme Court, I believe that the Honourable Justice Muhammad Idris, who delivered the leading judgment, did issue what is known as a summary ruling. Regretfully, the majority of commentators have not taken the time to read the ruling. Indeed, the court unquestionably stated or affirmed the President’s authority to take exceptional steps to restore law and order in any state where a state of emergency has been declared. Before today, there was no question that the President could use force or take other measures to reestablish law and order. The Supreme Court noted that section 305 of the Constitution does not specify the extent of the President’s powers, which has historically been a contentious issue. However, the Honourable Justice Idris stated in the majority ruling that section 305 of the Nigerian Constitution does not specifically grant the President the authority to take over or temporarily replace a state’s administrative or legislative institutions, in contrast to the constitutions of India and Pakistan. His lordship went on to explain that Nigeria’s constitutional commitment to federalism and state government autonomy is reflected in this deliberate omission, which is the President’s lack of authority to dissolve democratic structures. Prior reaching that decision, the court was informed that Nigeria’s three levels of government—federal, state, and local—are separate, autonomous entities and that none of them is superior to the order. To put it another way, the Supreme Court was merely upholding its prior rulings that state governors are not permitted to dismiss or remove democratically elected chairmen and councilors.
Similarly, the Supreme Court has now reaffirmed its stance that elected public officials and structures cannot be removed, dissolved, suspended, or replaced unless the Constitution’s requirements are followed. Therefore, I would strongly advise Nigerians to carefully read the rulings. In reality, the Honorable Justice Obande Oguiya did not hesitate in the slightest to avoid any ambiguity in what has been considered a minority ruling. His lordship emphasized that the president is not authorized by the Constitution to remove elected public officials. The Supreme Court did not rule on the validity of the emergency rule imposed in Rivers State, and I believe this was done on purpose. Since the governor has returned to his duties, one may argue that it has become academic. I’m referring to Governor Fubara, but the Supreme Court’s challenge to the plaintiffs’ locus standi—that is, the 11 attorneys general who filed the case—is another perplexing aspect of the ruling. This is concerning because the Attorney General of the Federation’s locus standi was contested in the matter of Attorney General of the Federation and Attorney General of Abia State and 35 States, which was resolved in July of last year.
However, the Attorney General has the locus standi to bring the case on behalf of the 774 local governments, the Supreme Court ruled. If such was the case, I thought the court ought to have been consistent and upheld the locus standi of the 11 attorneys general who brought this historic case. However, in contrast to 2004 and 2006, when the emergency rule was contested in Plateau State and Ekiti State, the Supreme Court went beyond its previous stance this time by merely stating that the court lacks jurisdiction because you lack locus standi. However, the Supreme Court went farther, and only the Supreme Court has the authority to do so by issuing policy pronouncements about Section 305 of the Constitution.
According to the ruling, the plaintiffs failed to prove that they and the federation had an actionable disagreement, which would have allowed the court to exercise its original jurisdiction. Would you like to elaborate on it and what they were attempting to convey?
Regarding the emergency rule in Rivers State and the suspension of Governor Fubara and other elected officials in that state, the court is attempting to say that the President’s action or decision did not cause a dispute between the plaintiffs, which are the 11 Attorney Generals and the federal government, the Attorney General of the Federation. However, the plaintiffs did assert that any Nigerian governor has an interest in the events in Rivers State and a lawsuit that can be pursued. Furthermore, a few days after the declaration of emergency, the Federation’s Attorney General stated that we had only handled Rivers State and could handle any other governor. The plaintiffs were already terrified, and rightfully so, because they believed that because it would be our turn, it would be wiser to stop the potential political catastrophe in our states. With all due respect, I disagree with the Supreme Court’s conclusion that there was no disagreement between the federal government and the plaintiffs. There was a disagreement, of course. The governors are then free to act without waiting. They can go to court right now to stop what they see as constitutional heresy without waiting for their own removal or a state declaration of emergency.
How will the anomaly be fixed if that is the case and this is the highest court?
When you lose a case at the Supreme Court, you just inform your client what to do if he asks. That’s the end of the road, you say. The all-powerful God is the source of appeal. However, the Supreme Court has already offered some advice in this specific issue, so there shouldn’t be any controversy the next time the President of Nigeria needs to declare a state of emergency. As I mentioned earlier, the court’s leading decision made it quite evident that the President is not authorized by section 305 of the Constitution to temporarily replace the state’s legislative or executive branches. And that, in my opinion, is the most crucial aspect of the verdict. The plaintiffs’ locus standi and the court’s jurisdiction are the other areas where we disagree. Even though the case was dismissed, the court continued to discuss the case’s merits in great detail. And that will serve as a roadmap for the next time the Nigerian president needs to proclaim a state of emergency. That’s how I see it.
Many find this quite perplexing because the final arbiter claims he lacks jurisdiction. It raises a lot of questions. Could you explain how this is possible? Has there ever been a precedent in Nigeria or anyplace else in the world? If so, what were the exceptional conditions that made it necessary?
What the court is saying, I believe. We also need to develop the ability to defend ourselves when our rights are violated. The suspended governor did not file a lawsuit in the Plateau State case. Neither the suspended governor nor the lawmakers filed a lawsuit in the Ekiti State case. The governor and the lawmakers of Rivers State did not file a lawsuit. Therefore, you are obligated to disagree with the outdated locus standi concept unless you are directly impacted by a government action. Because any concerned member of the public must be allowed to contest any constitutional infraction or dereliction in these days of public interest litigation. Additionally, it serves everyone’s interests. The case of Abraham Adesanya and the president had been abandoned by the Supreme Court. It took place during the Second Republic. Even then, the late Justice Fatai Williams, who was Nigeria’s Chief Justice at the time, made a minority ruling stating that the courts should let disgruntled citizens air their grievances. And that was preferable than forcing them underground, where revolutions take place. In the cases of Fawemi Anakilu Nos. 1 and 2, the Supreme Court went one step farther. In truth, the Honourable Justice Ese stated in the Fawemi Anakilu No. 1 case that, in contrast to the United Kingdom, in England, the term “brother” refers to your blood relative. However, we are all our brothers’ keepers in an African context when the extended family system is in place. Therefore, by adopting public interest litigation, the Supreme Court has deviated from the narrow road of locus standi.
In the Center for Air Pollution v. NNPC case, the Supreme Court reaffirmed that stance. However, the Supreme Court’s recent insistence that your injury must be greater than that of other members of the public seems to be a step away from public interest litigation. The idea of public interest lawsuit is ridiculed. Furthermore, Nigeria is currently the only nation in the Commonwealth—almost the only one—that is returning to the highly limited locus standi notion. And I sincerely hope that our courts would have granted locus standi to or acknowledged the locus standi of the eleven Attorney Generals who petitioned the Supreme Court on this issue, just as they did in the case of local government autonomy last year.
In the first place, why does the Supreme Court provide rulings that allow the parties who filed the case to interpret them differently? How detrimental is this to our policy?
I believe that everyone should study court rulings in order to comprehend the rationale behind the court’s decisions. And once more, as I mentioned in this instance, as soon as word spread that the lawsuit had been dropped. The suspension of elected legislators and governors appeared to have been approved by the Supreme Court. I’ve spent a lot of time reading the verdict. The president has vast authority to guarantee the restoration of law and order or constitutional order whenever a state of emergency is declared, which is why the court acknowledges the president’s extensive powers. However, this does not provide the president the authority to dismiss elected lawmakers and governors. Both the Supreme Court’s majority and minority rulings made this extremely evident. Now that I’ve accepted it, we may go to the following item. Where do you go from here and where do we go when something like this happens? It is to exploit other instances, similar cases, and I am aware that the issue of locus standi will be brought up again in a number of cases that are presently pending before the Supreme Court. I mean, I’m just now submitting a case. On the issue of locus standi, I lost a few of them. According to the High Court, I had a local standard to contest the transfer of money that ought to have gone to the federation account. However, the court of appeals remarked, “Oh, Mr. Falana, we appreciate your effort.” However, you no longer have locus standi in light of the Supreme Court’s recent ruling in Fawehinmi and Okonjo-Iweala. Once more, we are bringing that before the Supreme Court so that it can examine his locus standi stance in the public interest and for the benefit of all of us. Because locking up the court’s gates will force people to take alternative actions that could jeopardize law and order and state security. Thus, the question of, and I believe it was the Supreme Court once more in the case of A.G. Bende and A.G. of the Federation that the floodgates should be opened in order for the courts to carry out their constitutional mandate to serve as arbiters in disputes between citizens and the government.
What do you think about the problem of justice being postponed or denied, and then, of course, the matter of the elected governor, deputy, and Assembly members being removed? How can such wrongs be righted?
Once more, the Supreme Court is urging individuals impacted to have the guts to contest their removal under the constitution. President Bola Tinubu would have definitely gone to court if it had happened in Lagos during his tenure as governor. The goal of every action the Lagos State Government filed against the federal government and every case it started against the federal government was to bolster democracy. In fact, I can state without fear of contradiction that in some of those cases, state governments may have even been declared bankrupt because the Lagos State Government won cases that defined Nigerian constitutionalism, whether state governments could establish local governments, whether state governments could approve building plans within their states, and so on. Because we were transitioning from a military junta-run unitary system of government to a civilian one, the federal government had complete authority over national issues. However, the Lagos State Government organized all the states to oppose the federal government’s efforts to extend the terms of local government chairmen, hold local government elections, seize local government funds, control state physical planning, and other issues. Additionally, certain cases have been redefined. In fact, I believe that litigation encourages reorganization in those circumstances. Because our constitution is unitary, we have been able to settle many conflicts brought on by the military organization. Other governments have also followed suit. However, we have been able to redefine federalism and implement it from the unitary structure in Abuja thanks to cases brought by state governments and a few concerned citizens.
