{OPINION} How to suspend democracy in the name of emergency: A Supreme Court moment
By CHIEF FESTUS OGWUCHE, PhD
Emergency powers are, by their very nature, exceptional. In constitutional democracies, they are treated with suspicion, interpreted narrowly, and justified only to the extent strictly required by circumstance. They exist to preserve the constitutional order, not to displace it. To suggest that the declaration of an emergency automatically carries with it the authority to suspend a governor, a deputy governor, and an elected legislature is to smuggle into the Constitution a power that its text does not confer.
There are moments when courts do not merely interpret the Constitution but quietly redraw its boundaries — and history only realises it much later.
A recent decision of Nigeria’s Supreme Court affirming the President’s power to declare emergency rule and suspend elected state officials has been greeted with official relief and political applause. Yet beneath the calm surface of judicial language lies a ruling whose implications stretch far beyond the immediate dispute. It is a decision that invites the country to reflect, not just on emergency powers, but on the fragile architecture of democracy itself and how easily it may be paused in the name of necessity.
No serious reader of the Constitution doubts that the President may declare a state of emergency. Section 305 is clear on that point. But constitutions are not manuals for power alone; they are restraints upon it. The true difficulty with the judgment is not that it recognises emergency authority but that it elevates that authority into a power to suspend democratic institutions without explicit constitutional permission, clear limits, or built-in safeguards.
Emergency powers are, by their very nature, exceptional. In constitutional democracies, they are treated with suspicion, interpreted narrowly, and justified only to the extent strictly required by circumstance. They exist to preserve the constitutional order, not to displace it. To suggest that the declaration of an emergency automatically carries with it the authority to suspend a governor, a deputy governor, and an elected legislature is to smuggle into the Constitution a power that its text does not confer.
This matters profoundly in a federal system. Nigeria is not a unitary state with administrative provinces; it is a federation of constitutionally autonomous states. Governors are not extensions of the federal executive. They derive their legitimacy directly from the electorate. Their removal or suspension is carefully regulated through impeachment and other constitutionally prescribed processes. When those processes are bypassed by executive proclamation, federalism is reduced from a living principle to a decorative slogan.
Comparative constitutional experience offers a sobering warning. In India, whose emergency provisions are among the most expansive anywhere, the Supreme Court has insisted that such powers are subject to judicial review and strict scrutiny. In the celebrated case of S.R. Bommai v. Union of India, the Indian court rejected the routine dismissal of state governments under the guise of emergency, holding that federalism forms part of the Constitution’s basic structure and cannot be casually undermined. Even in moments of grave national stress, the displacement of elected governments was treated as a last resort, not a convenient option.
South Africa’s constitutional jurisprudence is even more explicit. Its Constitution permits emergency measures only to the extent strictly required by the exigencies of the situation and expressly guards against the erosion of democratic institutions. The South African Constitutional Court has consistently maintained that emergencies are meant to save democracy, not suspend it. Power, once allowed to grow unrestrained in moments of fear, rarely shrinks on its own.
International law reinforces this caution. Under the International Covenant on Civil and Political Rights, derogations during emergencies must be limited, proportionate, and consistent with the preservation of democratic governance. Emergency is not a legal vacuum. It does not license the indefinite suspension of political rights or the quiet sidelining of electoral mandates.
What renders the Supreme Court’s decision especially troubling is its reliance on the comforting language of “temporary suspension.” Temporary by what measure, and subject to whose review? The judgment provides no constitutional yardstick. It sets out no clear duration, no independent oversight, and no objective criteria for restoration. A power without defined limits is not temporary in any meaningful sense; it is merely dormant, waiting for the next moment of convenience.
Equally unsettling is the Court’s retreat into jurisdictional reasoning. This was not a routine political quarrel. It was a foundational constitutional question touching the balance of power, the meaning of federalism, and the continuity of democratic governance. In such moments, apex courts are expected to confront substance, not shelter behind technical escape routes. Constitutional courts exist precisely to speak when silence would be easier.
The lone dissent in the case stands out as a reminder of what constitutional fidelity looks like. It recognised that while emergencies may justify extraordinary measures, they do not justify the erasure of democratic mandates. It affirmed that impeachment procedures exist for a reason and that executive convenience cannot override constitutional design. History has often shown that today’s dissent becomes tomorrow’s doctrine.
The precedent set by the judgment is a dangerous one. It hands future presidents a lawful shortcut: declare emergency, suspend inconvenient state governments, install compliant administrators, and govern by proxy. What once required the crude force of military intervention may now be achieved through judicial blessing. Democracies, more often than not, are not destroyed in dramatic moments; they are gradually weakened by respectable decisions made in the name of order.
This is not an argument against emergency powers. It is an argument against their unguarded expansion. Federalism is not an obstacle to national stability; it is one of its guarantees. Emergencies test constitutions, but they also reveal their strength. A constitutional order that survives only in calm times is no order at all.
The Supreme Court may have intended to stabilise governance. Yet in doing so, it has unsettled a foundational principle: that power in a democracy flows upward from the people, not downward from proclamations. Courts are remembered not for how closely they align with power but for how firmly they stand between power and the Constitution. On this occasion, that distance narrowed — and the echo of that narrowing may be heard for years to come.
Dr. Ogwuche is the President of the Campaign for Social Justice and Constitutional Democracy in Africa and based in Port Harcourt, Rivers State Nigeria. He can be reached on festusogwuche@gmail.com
(Note that views and personal opinions expressed in this article are solely of the author and do not reflect the views of The DEFENDER Newspaper)
