By Chidi Anselm Odinkalu
All judges are politicians whether they know it or not— Enrique Petracchi, former Chief Justice of Argentina, (2002)
Among lawyers trained in the traditions of the Common Law, judicial power is often mis-understood. In Nigeria, the 1999 Constitution divides the powers of the federation between the legislature, the executive and the judiciary. The first two are elected. Judges are not. In the elected arms, it vests the legislative and executive powers of the federation.
In
turn, the same constitution vests the “judicial powers of the Federation” in
the courts. This suggests that judicial power is political not institutional.
Yet,
the tradition of Nigerian law is largely to equate judicial powers with the
jurisdiction of courts to both adjudicate over cases and fashion remedies in
accordance with the pleadings of the parties and with judicial interpretation
of the applicable laws.
That
is an error. Jurisdiction is inherent in the judicial office; judicial power is
functional in how the judicial deploys its jurisdiction behind the party or
cause that it prefers. This is the sense in which lawyers trained in the
methods of the Civil Law system speak of le pouvoir judiciaire – the judicial
power.
On December 15, 2025, Nigeria’s
Supreme Court indulged in a dramatic demonstration of judicial power in a case
in which it determined that it lacked jurisdiction on the facts. The dispute
arose over the proclamation by President Bola Ahmed Tinubu of
a State of Emergency in Rivers State on March 18, 2025. The
declared duration of the emergency was an initial period of six months. In the
proclamation, the president also pronounced the suspension of the elected
governor and House of Assembly of the state.
At
the time, the Governor of Rivers State, Siminalayi Fubara – who has recently
christened himself a lifelong “progressive” – was in supposedly retrograde
company in the Peoples Democratic Party (PDP), on whose platform he was
elected.
23
days after the emergency proclamation, 11 governors elected on the platform of
the PDP – naturally suffering from a profound bout of “there but for the grace
of geography go I” – invoked the original jurisdiction of the Supreme Court to
challenge the constitutionality emergency proclamation.
Under
Nigeria’s constitution, the Supreme Court is the final court of appeal in the
country and most cases get to the court by way of an appeal from lower courts.
However, the court also has original jurisdiction as a court of both first and
final instance in legal disputes between the federation and states or between
states among themselves.
When
this case was filed, the emergency still had five months and one week to run. A
Supreme Court which desired could easily have accorded it due priority and
dealt with it expeditiously. The case concerning Local Government autonomy
filed in May 2024 (which arrived the court by similar means), for instance,
took only 45 days from filing to judgment on July 11 of the same year.
In this case concerning emergency
rule in Rivers State, however, the Supreme Court chose a deliberately somnolent
route to scheduling. Everything the court did subsequently appeared to have
been underpinned by that imperative.
On
September 18, 2025, the emergency proclamation in Rivers State became spent and
the suspended institutions and officials were restored to office. By the time
the Supreme Court found time to address the issues posed for it in the case
three months thereafter, five of the 11 governors who filed the original action
had relocated their party loyalty from the PDP to the president’s All
Progressives Congress (APC).
Two
more would do so in the days immediately following the judgment. No one will
ever truly know whether the jurisprudence of political coercion confirmed in
this case had anything to do with the desperation of these gubernatorial acts
of party political transfiguration.
After
their judgment, the Supreme Court released an unsigned, 14-page media summary
of the majority judgment of Mohammed Baba Idris, who led a majority of six of
seven Justices. There followed a public race to unravel what the Justices had
decided. The media reported that the Supreme Court had licensed the president
to suspend elected state officials under colour of an emergency.
Femi
Falana, SAN, provided a spin on the judgment from a segment of the legal
profession initially in shock, which argued that the court did not go as far.
In reality, it did that and much more and the initial media reports were very
accurate.
Five things are notable about the
decision of the court in this case. First, in a mere four pages, all
seven Justices made short shrift of the case as filed, declining jurisdiction
on the basis that “the plaintiffs failed to disclose any reasonable or
justiciable dispute between them and the federation capable of invoking the
original jurisdiction of the court.”
At
this stage, the job of the court was done. However, the Justices decided to
“undertake a considered discussion on the scope and exercise of the powers”
under the constitution concerning emergency proclamations.
It
is notable that the court framed what it undertook in the remaining two-thirds
of its “summary” as a “discussion”, rather than an exercise in judicial
decision making. Scholars and jurists will expend considerable froth in the
years to come on the import of what may well become known as “Supreme
discussion.”
Second,
the court embarked on its self-appointed discussion by locating the bases of
emergency powers in an invented doctrine of “a temporary expansion of federal
powers” which lacks any foundations in the text or structure of Nigeria’s
constitution. Indeed, emergency powers under Nigeria’s federal system are not
an expansion of federal powers.
On
the contrary, they are contingent powers, ripe to be exercised upon the
fulfilment of twin requirements of substantive and procedural compliance with
constitutional pre-conditions.
Third, turning to the constitutional
pre-conditions, the Supreme Court continued its disquisition by pronouncing the
emergency proclamation in Rivers State as having fulfilled the substantive
pre-conditions under the constitution.
Fourth,
the Court turned to the procedural arithmetic preceding the emergency
proclamation. Nigeria’s constitution requires an emergency proclamation to be
sustained by a joint resolution supported by two-thirds majority of each
chamber of the National Assembly. The court ruled that this implies that the
voting “process adopted renders the attainment of the two-thirds majority
clearly ascertainable.”
In
this case, the National Assembly used a voice vote to ram through its joint
resolution in support of the emergency rule. The Supreme Court managed to see
this as competent constitutional computation, not parliamentary voodoo.
Fifth,
the Court discussed whether the president had the power under an emergency
proclamation to suspend elected state officials, including the governor and
legislators. It laid down one constraint to the effect that “emergency measures
must be temporary, corrective, and proportionate”; and added that “any
permanent displacement or abrogation of democratically elected institutions
would constitute a constitutional aberration.” “Outside a validly declared
state of emergency”, the court further discussed “the President possesses no power
whatsoever to interfere with State executive or legislative institutions.”
It
was an odd way to phrase arguably the most cynical and gratuitous expansion of
presidential power in the history of the
Nigerian Supreme Court. In other words, the Supreme Court clearly
discussed its way to supporting the assertion by the president of a power to
suspend any governor he does not like under colour of an emergency proclamation.
It is also cynical because the court does not offer this as a decision but as a
discussion, without even the ceremony of a declaratory import.
One of the seven Justices, Obande
Ogbuinya, concurred in the decision that the court lacked jurisdiction but
reportedly dissented on judicial tolerance of a presidential power to suspend
elected state officials. Unlike the majority decision, the court did not bother
to provide a summary of his dissent.
The
decision of the Supreme Court to become a “discussion” forum on such an issue
of extraordinary constitutional significance is guaranteed to roil governance
and politics in Nigeria for a long time. As an exercise of judicial power, it
supremely wilful, cynical, and political.
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