Senior Advocate of Nigeria and human rights lawyer, Femi Falana, has insisted that the Nigerian Constitution does not give the President the power to suspend or displace elected state executives or legislatures, even under a state of emergency, warning that any contrary interpretation poses grave risks to federalism and democracy.
Speaking in an interview with ARISE NEWS on Tuesday, Falana said recent public commentary on the Supreme Court’s judgment regarding emergency powers had been largely misleading, stressing that a careful reading of the ruling shows clear constitutional limits on presidential authority.
“In fairness to the Supreme Court, the justice that delivered the leading judgment, Honourable Justice Mohammed Idris, issued what may be regarded as a summary judgment. Unfortunately, most commentators have not bothered to read the judgment,” Falana said.
He explained that while the court affirmed the President’s authority to take extraordinary measures to restore law and order during a state of emergency, it did not authorise the removal of elected officials.
“There was no doubt before now that the President could deploy forces or take other steps to restore law and order. What has always been controversial is the extent of those powers,” he stated.
According to Falana, the apex court made it clear that Section 305 of the Constitution deliberately omits any power allowing the President to dissolve or suspend democratic structures at the state level.
“The Supreme Court stated clearly that, unlike the constitutions of India and Pakistan, Section 305 of the Nigerian Constitution does not expressly confer power on the President to assume or temporarily displace executive or legislative institutions of a state,”he said.
“His Lordship went further to state that this omission is deliberate and reflects Nigeria’s constitutional commitment to federalism and the autonomy of state governments.”
Falana noted that the court reaffirmed Nigeria’s three-tier federal structure.
“The Supreme Court reiterated that the federal, state and local governments are independent and autonomous tiers, and none is superior to the other.”
Drawing from earlier precedents, Falana said the ruling aligns with longstanding judicial decisions barring the removal of elected officials outside constitutional procedures.
“In like manner, the Supreme Court has now reiterated its position that elected public officers cannot be removed, dissolved or suspended except in accordance with the provisions of the Constitution.”
He urged Nigerians to examine the judgment beyond sensational headlines.
“I would therefore urge Nigerians to study the judgments very well.”
Falana also referenced a minority opinion delivered by Justice Obande Oguwuegbu, which he said left no room for ambiguity.
“In what has been regarded as a minority judgment, Justice Obande Oguwuegbu made the point unequivocally that there is no provision of the Constitution that empowers the President to remove elected public officers.”
However, Falana expressed concern over the court’s treatment of locus standi, particularly its decision to dismiss the case brought by state Attorneys-General on jurisdictional grounds.
“What is worrisome is that the Supreme Court challenged the locus standi of the Attorneys-General who filed this historic case,”he said.
He argued that this position contradicts recent judicial precedent.
“In the case between the Attorney-General of the Federation and the Attorneys-General of the 36 states decided last year, the Supreme Court affirmed that the Attorney-General of the Federation had locus standi to act on behalf of local governments. I was therefore of the view that the court ought to have been consistent and uphold the locus standi of the state Attorneys-General in this case.”
Falana rejected the court’s view that no actionable dispute existed between the plaintiffs and the Federal Government.
“With profound respect, I do not agree with the Supreme Court that there was no dispute. Certainly, there was a dispute,” he said.
“Governors do not have to wait for their own removal or for emergency rule to be declared in their states before approaching the court to prevent what they regard as constitutional heresy.”
Despite the dismissal, Falana noted that the court went further to provide substantive constitutional guidance.
“In spite of dismissing the case, the Supreme Court still went ahead to dwell extensively on the merits of the case, and that will serve as a guide when next the President has cause to declare a state of emergency.”
He described the court’s position on jurisdiction as troubling, particularly in light of Nigeria’s evolving jurisprudence on public interest litigation.
“If you agree with the anachronistic doctrine of locus standi, then unless you are personally affected, you cannot sue. But that position is inconsistent with modern public interest litigation,” Falana argued.
“Nigeria is almost the only Commonwealth country now returning to a very restrictive concept of locus standi, and that makes a mockery of public interest litigation.”
Falana warned that restricting access to the courts could have dangerous consequences.
“If you lock the gates of the courts, citizens will be compelled to take other actions that may threaten law and order and the security of the state.”
On concerns about delayed justice, Falana said affected officials must be bold enough to challenge unconstitutional actions directly.
“What the Supreme Court is saying is that those who are affected should pluck up the courage to challenge their unconstitutional removal,” he said.
Drawing from past constitutional battles, Falana cited Lagos State’s history of litigation against the Federal Government as a model for defending federalism.
“Those cases strengthened democratic governance, redefined federalism, and helped Nigeria move away from the unitary military structure imposed during military rule,” he said.
“Through litigation, we have been able to redefine federalism and extricate it from excessive central control.”
Falana concluded that while aspects of the ruling remain contentious, its most important legacy lies in affirming constitutional boundaries.
“The most important part of the judgment is that Section 305 does not empower the President to remove elected governors or legislators,”he said.
“That position came out clearly in both the majority and minority judgments of the Supreme Court.”
Boluwatife Enome
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