By OLARINRE SALAKO
“In federal democracies with weak legislatures and dominant executives, courts cannot rely on implicit guardrails where explicit constitutional safeguards exist.”
Constitutions are not merely legal documents; they are moral covenants. They embody a people’s collective judgement about power—how it should be acquired, exercised, restrained, and relinquished. In federations especially, constitutions are acts of trust: trust that no arm of government will exploit silence, emergency, or expediency to erode the autonomy of another.
It is against this higher understanding of constitutionalism that the Supreme Court’s majority judgment of Monday, 15 December 2025, in Attorney General of Adamawa State & 10 Ors v. Attorney General of the Federation & The National Assembly (SC/CV/329/2025), concerning the Rivers State emergency, must be assessed—not merely for what it decided, but for what it declined to settle.
The Court struck out the suit on jurisdictional grounds under Section 232 of the Constitution. On that point, because jurisdiction is the gatekeeper of judicial authority. But courts do not serve democracy only by knowing when to be silent; they also serve it by speaking fully when they choose to speak. Having declined jurisdiction, the Court nonetheless offered a substantive exposition of Section 305—the constitutional provision governing emergency powers—and invoked comparative constitutional models from India and Pakistan. By doing so, it rightfully assumed its role of constitutional guide.
_The concern is that this guidance was incomplete_: the Court intervened, but did not go far enough to articulate the limits required to preserve Nigeria’s federal balance and democratic tenure protections.
Judicial Minimalism and the Architecture of Federal Democracy
Judicial minimalism is often praised as a virtue. Courts, we are told, should decide no more than is necessary and avoid expansive pronouncements that intrude into political space. In ordinary times, such restraint may preserve institutional balance.
But as the Court itself acknowledged, “in view of the significance of Section 305, it is imperative to undertake a considered discussion on the scope and exercise of the power conferred thereby.” Having recognised that emergencies are not ordinary, the Court nevertheless failed to examine the constitutional juxtaposition of Section 305 with Sections 188 and 109–110 of the same Constitution.
Emergency powers represent the apex of executive authority in a constitutional order; when judicial minimalism is applied at that moment, restraint risks becoming abdication.
The Supreme Court acknowledged that Section 305 does not define “extraordinary measures.” From this silence, the majority inferred constitutional flexibility, reasoning that emergencies vary and that the President must be allowed discretion, subject to proportionality, temporariness, legislative oversight, and judicial review. At first glance, this appears sensible. Constitutions cannot anticipate every crisis, and excessive rigidity can paralyse governance.
Yet constitutional interpretation does not end with flexibility. It must also confront structure.
Nigeria’s Constitution is not silent about democratic tenure. It is emphatic. Sections 188 and 109–110 meticulously prescribe how Governors and legislators may lose office. These provisions are exhaustive and deliberate. They embody a constitutional judgement that electoral mandate should not be displaced casually, implicitly, or by federal executive convenience.
What makes the majority judgement troubling is not that it upheld emergency powers, but that it did so without engaging these tenure-protecting provisions at all. This intentional omission raises a constitutional question.
Once the Court chose to speak substantively about Section 305, it had a duty to ask—and answer—the most fundamental interpretive issue before it: how does the undefined phrase “extraordinary measures” constitutionally coexist with explicit and exhaustive provisions governing the removal of elected state officials in Sections 188 and 109–110?
Silence on this question is not neutral. In constitutional law, what is left unexamined often becomes what is later assumed.
Comparative Federalism and the Missed Jurisprudential Moment.
The Court briefly examined comparative constitutional models, notably India and Pakistan, where emergency powers are framed very differently. Their Lordships observed that under India’s Constitution (Articles 352–360) and Pakistan’s Constitution (Article 234), the federal executive is expressly empowered, during emergencies, to assume or displace the executive authority of States or Provinces. In those systems, emergency power is textually designed to permit temporary centralisation of sub-national governance.
The Court then made an important observation: that Nigeria’s Constitution adopts a markedly different approach. Section 305, it noted, “does not expressly confer power on the President to assume or temporarily displace the executive or legislative institutions of a State.” This omission, the Court reasoned, was deliberate, reflecting Nigeria’s constitutional commitment to “federalism and State autonomy”.
That acknowledgment should have been the jurisprudential turning point.
Once the Court recognised that Nigeria deliberately rejected the Indian and Pakistani model of executive displacement, it was incumbent upon it to anchor that distinction firmly within the Constitution itself. That anchoring could only have come from Sections 188 and 109–110, which provide the exclusive and exhaustive procedures by which Governors and State legislators may lose office. At this point, the Court could have drawn support from federations such as the United States and Germany, where emergency powers do not permit suspension of sub-national elected governments.
Having recognised the absence of express displacement power in Section 305, the Court did not draw the obvious constitutional conclusion—that the open-textured phrase “extraordinary measures” cannot override explicit tenure safeguards set out elsewhere in the Constitution.
This was a missed constitutional opportunity. By illuminating Nigeria’s constitutional difference without fully defending it, the majority left a foundational principle of Nigerian federalism vulnerable to future erosion.
Silence, Discretion, and the Limits of Legislative Restraint
By treating the absence of definition in Section 305 as intentional flexibility, the Court implicitly allowed “extraordinary measures” to float unanchored from the rest of the Constitution. The result is a doctrine in which executive discretion is bounded primarily by political oversight, rather than by explicit constitutional limits.
An interpretation that allows an emergency provision—designed to be exceptional—to operate without clear reconciliation with state-level tenure safeguards risks inverting the federal balance. Exceptional power begins to appear structurally superior to ordinary constitutional order. That inversion is not stated in the judgment, but it is implied by omission.
The Supreme Court emphasised the role of the National Assembly. Section 305 requires approval by a two-thirds majority of all members of each House, and the Court rightly insisted that this majority must be attained through a process that renders it clearly ascertainable. Constitutional supermajorities are not symbolic rituals; they are numerical safeguards.
Yet legislative oversight, standing alone, is insufficient. Legislatures are political bodies, subject to party discipline, executive influence, and majoritarian pressure. Courts exist precisely because constitutional democracy does not rely on political self-restraint alone. When courts decline to articulate substantive constitutional limits—especially where explicit safeguards already exist elsewhere—they leave democracy vulnerable to the weakest link in the chain.
Stability today, uncertainty tomorrow
It is tempting to read the majority judgment as an exercise in institutional pragmatism. Nigeria is a fragile polity. The Court may have wished to avoid a confrontation that could destabilise the federation or embolden lawlessness. But constitutional history teaches a sobering lesson: short-term stability achieved through interpretive silence often breeds long-term instability.
Precedents do not fade; they accumulate. What is justified once as exceptional becomes cited later as normal. What is left undefined becomes filled by practice, not principle. Democracies rarely collapse through dramatic rupture. They erode through unexamined exceptions, through doctrines that were never fully reasoned but are repeatedly invoked.
A missed opportunity for constitutional leadership
The Supreme Court did not need to invalidate the emergency or censure the executive. It did not even need to pronounce on the merits of suspension.
What the Court needed to do—having chosen to speak and having recognised Nigeria’s federal design—was to complete the constitutional conversation, precisely because in constitutional democracies, the law ultimately becomes what the courts authoritatively interpret it to be.
It could have clarified that whatever “extraordinary measures” may entail, they cannot impliedly override explicit tenure safeguards without unmistakable constitutional authorisation. It could have insisted on harmonisation, not hierarchy, among constitutional provisions.
Such guidance would not weaken the presidency. It would strengthen the Constitution.
Eternal vigilance is the price of federal democracy
Thomas Jefferson famously observed that “the price of liberty is eternal vigilance.” In federations, that vigilance must be shared—by executives who restrain themselves, by legislatures that assert their duties, and by courts that speak fully when power expands.
Judicial minimalism has its place. But when applied at the apex of emergency power, it risks becoming judicial retreat.
Nigeria’s Constitution deserves interpretation that is not merely cautious, but complete; not merely stabilising, but principled. In federal democracies with weak legislatures and dominant executives, courts cannot rely on implicit guardrails where explicit constitutional safeguards exist. The Supreme Court’s majority judgment resolved a case, but it did not resolve a constitutional dilemma.
That task remains—perhaps for a future court, perhaps for a more vigilant legislature, and perhaps for informed citizens who understand that democracy is not preserved by silence, but by reasoned insistence on limits.
•Dr Olarinre Salako, wrote from Texas, USA via: [email protected]_
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