I am not a lawyer and the only Law course I ever did was a three-hour lecture on Law in Nigeria as part of an undergraduateGeneral Studies course. Yet, from my three decades’ experience as a political reporter, I find Monday’s decision of the Supreme Court on the President’s power to suspend elected governors and legislators as directly contradicting its own ruling in another case in 2008.
In a 6-1 split decision, the apex court ruled in a case brought by eleven state Attorneys General that the Constitution empowers the President to declare a state of emergency in any part of the Federation, in order to prevent a breakdown of law and order. This part of the ruling is incontestable. However, the court also ruled that the 1999 Constitution empowers the President to adopt extraordinary measures to restore normalcy where a state of emergency has been declared, and that this includes the power to suspend elected officials, provided it is for a limited duration.
Recall that in 2006 when Vice President Atiku Abubakar defected from the ruling PDP to AC, the Obasanjo Presidency declared his office vacant and his defection to AC illegal. As a result, INEC, chaired then by Professor Iwu, printed ballot papers for the 2007 presidential election without AC, an action that Supreme Court nullified with only days to the election. INEC then rushed to South Africa and printed new ballot papers, with AC’s logo on it but without serial numbers due to lack of time, which itself became an issue in the ensuing election court cases.
Supreme Court then delivered the main ruling in 2008. It said the Constitution specifies that an Executive officer such as President, Vice President, Governor or Deputy Governor could only lose his office in one of four ways specified by the Constitution. These are resignation, impeachment, incapacitation or death. It ruled that you cannot add to the Constitution what it did not specify. In so far as defection to another party was not specified, an officer cannot lose his position because of it. By logical extension, since the Constitution did not specify state ofemergency as one way in which an executive officer can be removed from office before the end of his tenure, it is not a valid ground for removal.
Justice Mohammed Idris, who delivered Monday’s lead judgment, said since Section 305 of the Constitution does not specify the exact nature of those extraordinary measures, it givesthe President discretion on how to act in such circumstances.This directly contradicts the Supreme Court’s 2008 ruling, that you cannot add to the Constitution what it did not specify. President Jonathan was convinced about this interpretation, by his own Attorney General, when he stepped back from earlier plans to suspend the governors and legislators of three North Eastern states when he declared a state of emergency in the region in 2013.
Supreme Court Justice Obande Ogbuinya, who dissented in Monday’s ruling, held that Tinubu has the power to declare a state of emergency, but such power cannot be used to suspend elected state officials such as governors, deputy governors or members of state legislature. In that stance, Justice Ogbuinya is firmly on the side of the Court’s own history. Monday’s flip flop by the apex court could have grave political and security implications in years to come.
