Human rights lawyer Femi Falana is a 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 avert a breakdown. He also discusses how, among other things, the Supreme Court has issued some guidelines to ensure that there won’t be any debate the next time the president announces a state of emergency. The passages are brought by JOY ANIGBOGU:
In his ruling, Justice Idris of the Supreme Court stated that the President may exercise his discretion because section 305 does not define the precise type of extraordinary measures. What potential ramifications might this ruling have 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, sent out what is known as a summary judgment. Sadly, the majority of pundits haven’t bothered to read the verdict. In each state where a state of emergency has been declared, the court has unquestionably stated or confirmed the President’s authority to take extraordinary measures to restore law and order. The President’s ability to use force or take other actions to reestablish law and order was previously undeniable. The Supreme Court noted that section 305 of the Constitution does not specify the scope 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 legislative or executive branches, in contrast to the constitutions of Pakistan and India. His lordship went on to explain that Nigeria’s constitutional commitment to federalism and state government autonomy is reflected in this deliberate omission, or in other words, the President’s lack of authority to dissolve democratic structures. Prior to that ruling, the court was informed that Nigeria’s three levels of government—federal, state, and local—are autonomous, separate entities that are not superior to the order. To put it another way, the Supreme Court was merely upholding its previous rulings that state governors are not permitted to dismiss or remove democratically elected chairmen and councilors.
In a similar vein, the Supreme Court has recently reaffirmed its stance that elected public officials and structures cannot be removed, dissolved, suspended, or replaced unless the Constitution’s provisions are followed. Nigerians should therefore carefully read the rulings, in my opinion. In fact, the Honourable Justice Obande Oguiya did not hesitate in the slightest in what has been considered a minority ruling. His lordship emphasized that no clause in the Constitution gives the president the authority to remove elected public officials. The Supreme Court refrained from making a decision regarding the merits of the emergency rule imposed in Rivers State, which I believe was intentional. Since the governor has since taken up his responsibilities, it may be argued that it has turned 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 brought 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 determined in July of last year.
However, the Attorney General has the locus standi to launch the lawsuit on behalf of the 774 local governments, the Supreme Court ruled. If that was the case, I believed that the court ought to have been consistent and upheld the locus standi of the eleven 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 earlier stance this time around by merely stating that the court lacks jurisdiction because you lack locus standi. However, by making policy pronouncements on Section 305 of the Constitution, the Supreme Court went farther, and only the Supreme Court has the authority to do so.
According to the ruling, the plaintiffs failed to prove that they and the federation had an actionable disagreement that would have allowed the court to exercise its original jurisdiction. Would you like to elaborate on it and what they were attempting to say?
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, specifically the Attorney General of the Federation. However, the plaintiffs did assert that any Nigerian governor has a stake in the events in Rivers State and that this is an actionable issue. Furthermore, a few days after the emergency was declared, 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 appropriately so, because they believed that because it would be our turn, it would be wiser to stop the potential political apocalypse in our states. With all due respect, I disagree with the Supreme Court’s conclusion that there was no disagreement between the plaintiffs and the federal government. There was definitely a disagreement. After then, the governors can act without waiting. In order to stop what they see as constitutional heresy, they don’t need to wait for their own removal or a state emergency proclamation before racing to court.
In the event that this is the highest court, how will the anomaly be fixed?
If your client asks you, “Where do we go from here?” after you lose a case before the Supreme Court, you just inform him. That, you say, is the end of it. God Almighty 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 Nigerian President needs to declare a state of emergency. As previously mentioned, the court’s leading ruling made it abundantly evident that the President is not authorized by section 305 of the Constitution to temporarily replace the state’s legislative or executive branches. And in my opinion, that is the judgment’s most crucial component. The other points on which we disagree are whether the plaintiffs have locus standi and whether the court has jurisdiction. However, the court continued to discuss the case’s merits in considerable detail even after it was dismissed. And that will serve as a roadmap for the next time Nigeria’s president needs to proclaim a state of emergency. I see things that way.
The ultimate arbiter claims he lacks jurisdiction, which many find extremely perplexing. 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 that precedent necessary?
I believe what the court has stated. We also need to understand how to defend our rights when they are violated. The suspended governor of Plateau State did not file a lawsuit. In the Ekiti State instance, neither the suspended governor nor the lawmakers filed a lawsuit. In the Rivers State case, neither the legislators nor the governor went to court. Therefore, you will inevitably disagree with the outdated locus standi doctrine if you believe that a government decision would not directly effect you. Because any concerned member of the public must be able to contest any constitutional dereliction or violation in these days of public interest litigation. Additionally, it is beneficial to all of us. The lawsuit involving Abraham Adesanya and the president had been abandoned by the Supreme Court. In the Second Republic, that location took place. Even at that time, the late Justice Fatai Williams, the Chief Justice of Nigeria at the time, made a minority ruling stating that the courts should open their doors and let disgruntled residents air their grievances. And that was preferable than driving them underground, where revolutions take place. In the cases of Fawemi Anakilu Nos. 1 and 2, the Supreme Court took things a step further. In fact, the Honourable Justice Ese stated in the Fawemi Anakilu No. 1 case that, in England, the word “brother” refers to a blood relative. However, in an African context with the extended family system, we are all the guardians of our brothers. Thus, by adopting public interest lawsuits, the Supreme Court has deviated from the narrow road of locus standi.
In the case of the Center for Air Pollution and NNPC, the Supreme Court further 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 move away from public interest litigation. It ridicules the idea of litigation in the public interest. Furthermore, Nigeria is currently the only nation in the Commonwealth—almost the only one—that is returning to adopting the extremely limited locus standi notion. And I sincerely hope that our courts would have granted locus standi or acknowledged the locus standi of the 11 Attorney Generals who petitioned the Supreme Court on this issue, just as they did in the case of local government autonomy last year.
How detrimental is this to our policy, and why does the Supreme Court initially provide rulings that allow the parties that filed the case to offer alternative interpretations?
I believe that in order to comprehend the rationale behind the court’s decisions, we should all study court rulings. And once more, as I mentioned in this instance, as soon as the case’s dismissal was announced. It appeared as though the Supreme Court had approved of the suspension of elected lawmakers and governors. I’ve read the judgment several times over. 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 broad powers. However, this does not provide the president the authority to remove elected legislators and governors. That was made abundantly evident in both the Supreme Court’s majority and minority decisions. Now that I’ve given my OK, we can proceed to the next. Where should we go in a circumstance like this, and what should you do next? I am aware that there are numerous cases pending in the Supreme Court where the issue of locus standi will be brought up once more. This is done in order to exploit other, similar situations. I mean, I’ve only recently started a case. I lost a few of them due to locus standi issues. The High Court stated that I might contest the diversion of funds that were supposed to be transferred to the federation account using local standards. However, the court of appeals said, “Oh, Mr. Falana, we appreciate your effort.” You no longer have locus standi, though, given the recent ruling in Fawehinmi and Okonjo-Iweala by the Supreme Court. Once more, we are bringing that before the Supreme Court so that it will have the chance to examine his locus standi stance in the public interest and for the benefit of all of us. Because citizens will be forced to take other actions that could jeopardize law and order and state security if the court’s gates are locked. That’s why, in the instance of A.G., I believe the Supreme Court was involved once more. Bende together with A.G. of the Federation that the floodgates should be opened in order for the courts to fulfill their constitutional mandate to serve as arbiters in disputes between citizens and the government as well as between citizens.
What are your thoughts on the matter of justice being denied or delayed, as well as the removal of elected governor, deputy, and Assembly members? How may these wrongs be rectified?
Once more, the Supreme Court is advising those impacted to have the guts to contest their removal under the constitution. President Bola Tinubu would have definitely filed a lawsuit 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 initiated 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 they could approve building plans in their states, and so on. Because we were transitioning from a military junta-era unitary system of government to a civilian one, the federal government had complete authority over all national matters. However, the Lagos State Government organized all the states to oppose the federal government’s efforts to prolong the terms of local government chairmen, hold local government elections, seize local government funds, regulate state physical planning, and more. Furthermore, certain cases are redefined. Actually, I believe that litigation in those circumstances encourages reorganization. Since our constitution is unitary, we have been able to settle many conflicts brought on by the military organization. Other governments have also done the same. However, we have been able to redefine federalism and implement it from the unitary structure in Abuja thanks to cases made by state governments and certain concerned citizens.
