By Clifford N. Chuku, Esq.
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Introduction
By drawing on relevant Nigerian case law, the article underscores the supremacy of the Constitution and the judiciary’s role in protecting democratic processes, this article examines the constitutional and statutory limits on the President’s powers under Sections 5, 305, and 315 of the 1999 Constitution of Nigeria, 1999 (as amended), alongside the Emergency Powers Act of 1961, in relation to conduct of local government elections in Rivers State. It analyzes whether these powers allow the President to suspend or amend the Electoral Act, 2022, or Rivers State Local Government Laws to facilitate conduct of local government elections contrary to statutory timelines or to override Supreme Court judgment(s).
This article is outlined as follows: (1) Presidential Powers and Limits; (2) Local Government Elections as a Constitutional Imperative; (3) President Use Emergency Powers to Regulate Local Government Elections in Rivers State; (4) Supremacy of Supreme Court judgments;(5) Practical Implications for Rivers State; (6) Recommendations; (7) Conclusion.
Presidential Powers and Limits
Section 5 of the 1999 Constitution vests executive powers in the President, allowing authority over federal matters. Section 305 permits the declaration of a state of emergency in the Federation or any part thereof under conditions like a breakdown of public order or safety. Section 315 permits the President to modify existing laws to align with the Constitution, mainly for transitional purposes. However, the aforesaid Section(s) of the Constitution are made subject to other provision of the constitution, making them subordinate to other provisions of the constitution, which simply means that these Presidential powers therein are not absolute and are explicitly subject to the provisions of the Constitution.
The Emergency Powers Act of 1961 provides a framework for the President to issue regulations during emergencies, howbeit these must align with the Constitution and cannot override its provisions, infringe on fundamental rights, or undermine democratic principles.
The interplay between these provisions and the conduct of local government elections in Rivers State raises critical questions about the scope of presidential authority and the sanctity of Nigeria’s federal structure particularly regarding the conduct of state-level local government elections. As affirmed in Section 1(1) and (3) Constitution 1999(as amended), the provision of the Constitution is supreme, and any inconsistent law is void.
Local Government Elections: A Constitutional Imperative
Local governments are recognized as the third tier of government under Section 7 of the Constitution, with states obligated to ensure democratically elected councils. In the landmark case of A.-G., Fed. v. A.-G., Abia State (2024) 17 NWLR (Pt. 1966) 1, the Supreme Court affirmed local government autonomy, holding that undermining democratic elections violates the Constitution. The facts involved a challenge to state interference in local governance, with the Court ruling that federal allocations must go directly to elected councils, emphasizing fiscal and administrative independence.
Similarly, in Governor of Ekiti State & Ors v. Olubunmo & Ors (2017) 3 NWLR (Pt. 1551) 1, the Supreme Court clarified that local elections fall under state electoral commissions per Section 197 Constitution of Nigeria, 1999(as amended) and the Fourth Schedule.
The procedure for conduct of local government elections is to be regulated/ governed by the Electoral Act, and State Local Government Law as held in O.S.I.E.C. v. A.C. (2010) 19 NWLR (Pt. 1226) 273, the Supreme Court however held that the local government elections law made by a State House of Assembly must not be inconsistent with any law made by the National Assembly. Where there is such inconsistency, the law made by a State House of Assembly is void to the extent of the inconsistency. The local government election conducted in Osun State in accordance with timeline(s) provided in the state local government law was nullified for being inconsistent with provision in the Electoral Act.
The above position of the Supreme Court was again recently reinforced and affirmed in A.P.C. v. R.S.I.E.C. (2025) 7 NWLR (Pt. 1990) 551.where the Supreme Court invalidated Rivers State’s October 5, 2024, local elections for non-compliance with the Electoral Act, 2022, the Supreme Court held that the Act applies to local elections, requiring voter register revisions 90 days prior (Section 150 Electoral Act, 2022). Failure to comply rendered the election void under Section 150(3), reinforcing federal standards over state processes.
Can the President Use Emergency Powers to Regulate Local Government Elections in Rivers State?
The declaration of a state of emergency under Section 305 does not confer unlimited powers on the President to interfere with democratic processes or judicial pronouncements. Applying this to Rivers State, the President cannot use Sections 5 or 305 of the Constitution, or the Emergency Powers Act, to suspend or amend the application of provision of the Electoral Act, 2022, Rivers State Local Government Laws and Rivers State Independent Electoral Commission Law. No provision of the Constitution empowers the President howsoever to suspend or amend the Electoral Act, 2022, Rivers State Local Government Laws and Rivers State Independent Electoral Commission Law to regulate procedure for the conduct of local government election in Rivers State. In President, F.R.N. v. National Assembly (2023) 3 NWLR (Pt. 1870) Pg.1 at Pg. 44, Paras A-D; Pg.48, Paras. C-E; Pg. 82, Para. D, the Supreme Court, held inter-alia:
“There is no part of the 1999 Constitution that makes the exercise of legislative powers of the National Assembly subject to the direction and control of the President of Nigeria…Nowhere in section 4 of the Constitution, or any other provision of the Constitution, is the legislative power of the Federation vested in either the President or the court and vice versa. The constitutional responsibilities do not overlap from one organ to another”
While it might be alluded that the President by virtue of Section 315 Constitution of Nigeria, 1999(as amended) can exercise powers to alter/amend/modify an existing law such as the Electoral Act, it is however imperative to note that the powers of the President therein is to bring such existing law into conformity with provisions of the constitution and not otherwise. Moreso the powers of the President in Section 315 Constitution of Nigeria, 1999(as amended) is made Subject To provision of the Constitution which implies that such powers of the President therein are subordinate/subservient to provision of the Constitution. See Itok v. Udoyo (2021) 4 NWLR (Pt. 1765) 49
The Electoral Act having been enacted by virtue of Section 4 Constitution of Nigeria, 1999(as amended), its provisions are superior to the Powers of the President under Section 315 Constitution of Nigeria, 1999(as amended) until amended through the legislative process outlined in Section 9 of the Constitution, the President lack powers to issue any regulation pursuant to the Emergency Act to abridge the length of time statutorily required for issuance of notice or doing of anything towards the conduct of local government elections in Rivers State.
The issue whether or not the Electoral Act governs procedure for the conduct of federal, state and local government elections, particularly in Rivers State have duly been settled by the Supreme Court in earlier case O.S.I.E.C. v. A.C. (Supra) and recent case of A.P.C. v. R.S.I.E.C. (Supra).
The principles of law enunciated in the aforementioned cases reinforces the principle of federalism. The procedure for the conduct of local government elections is not a matter for the President, and any attempt by the President to use emergency powers to regulate the procedure for conduct of such elections would violate the constitutional division of powers, and amount to a nullity
To address potential counterarguments: Proponents might claim that in severe crises (e.g., widespread violence threatening national security), emergency powers could justify temporary electoral adjustments to restore order. However, this is rebutted by constitutional supremacy as enshrined in Section 1(1) and (3) Constitution 1999(as amended) because any Presidential emergency regulations towards regulating procedure for the conduct local government election in Rivers State which does not conform with provision the Electoral Act is automatically invalid, and judicial precedents like O.S.I.E.C. v. A.C. (Supra) and recent case of A.P.C. v. R.S.I.E.C. (Supra) prioritize procedural integrity over expediency.
The Supremacy of Supreme Court Judgments
The Supreme Court’s judgment in A.P.C. v. R.S.I.E.C. (Supra) on procedure for conduct of local government elections in Rivers State is binding on all persons and authorities including the President as illustrated and affirmed by the provision of Section 287(1) Constitution of Nigeria, 1999(as amended), and cannot howsoever be set aside by executive action, especially not through emergency powers of the President
Any attempt by the President to use emergency powers to circumvent the Supreme Court judgment on procedure for the conduct of local government elections in Rivers State would constitute a direct affront to the rule of law and doctrine of separation of powers. Thus, even in a state of emergency, the President lacks the authority to set aside a Supreme Court judgment or enact regulations which conflict with judicial pronouncements of the Supreme Court on procedure for the conduct of local government elections in Rivers State.
Practical Implications for Rivers State
Presidential emergency powers are constrained and cannot override constitutional, statutory, or judicial safeguards. Amending the Electoral Act or state laws via regulations to bypass timelines directly challenges A.P.C. v. R.S.I.E.C. and Section 287(1). Conducting elections under current conditions risks repeating this invalidation
The President’s emergency powers, while significant, are not a carte blanche to override constitutional/statutory safeguards or judicial decisions. The President suspending or amending the Electoral Act, 2022, Rivers State Local Government Laws and Rivers State Independent Electoral Commission Law through emergency regulations to regulate procedure for the conduct of local government election in Rivers State is a deliberate affront on the Supreme Court decision in A.P.C. v. R.S.I.E.C. (2025) 7 NWLR (Pt. 1990) 551 and provision of Section 287(1) Constitution of Nigeria, 1999(as amended)
At a recent high-level televised meeting with the Forum of State Independent Electoral Commissions of Nigeria (FOSIECON), INEC Chairman Prof. Mahmood Yakubu praised the new FOSIECON leadership but cautioned against haphazard election planning. The INEC Chairman was clearly heard emphasizing the importance of adhering to the provision of the Electoral Act in the procedure for conduct of local government election in States with particular reference to Section 98-113 &150 of the Electoral Act, 2022.The INEC Chairman was also heard stating as follows:
“… for instance the next area council election in the FCT takes place in February next year but early this year we released the timetable and schedule of activities, over 360 days ahead of the election as provided by law. It is on this note that i will like to cease this opportunity to draw your attention to the judgment of the Supreme Court which the Chairman of FOSIECON alluded to on the conduct of local government election. Conducting local government election without serving the statutory mandatory notice long before the election contravenes the judgment of the Supreme Court, recent announcement by a State Electoral Commission which gives in effect 21 days notice is not only a violation of the law and the subsisting judgment of the Supreme Court, it is also a practical problem, within 21 days how do you expect political parties to conduct primaries, nominate candidates, organize campaign, and for the electoral commission to conduct voter education, recruit and train adhoc staff, manage logistics and organise security for the election, it is practically impossible to do that within 21 days. So as the umbrella body of all State Electoral Commission, carry this message to your members about importance of complying with statutory timelines for the conduct of local government elections”
Flowing from above, and to avoid wastage of public funds, the implication of conducting a local government election in Rivers State in the current state of affairs will undoubtedly lead to same outcome in the decision of the Supreme Court in A.P.C. v. R.S.I.E.C. (2025) 7 NWLR (Pt. 1990) 551, the local government election scheduled for 30th August 2025, if held, will be void ab initio and eventually be nullified by a court of law on the authority of A.P.C. v. R.S.I.E.C. (Supra).
Recommendations
(1) Legislative reforms to clarify emergency applications in elections.
(2) Enhanced judicial oversight through proactive reviews.
(3) Stakeholder dialogues involving INEC, RSIEC, and political parties to ensure compliance.
(4) Public education on federalism to prevent overreach.
Conclusion
The President’s powers under Sections 5,305, 315 of the Constitution, as well as the Emergency Powers Act of 1961, are defined and limited by the Constitution, federalism principles, and Supreme Court rulings. In relation to procedure for conduct of local government elections in Rivers State, these powers do not extend to suspending or amending the Electoral Act, 2022, Rivers State Local Government Laws and Rivers State Independent Electoral Commission Law in ways that conflict with statutory timelines, nor do they allow overturning Supreme Court decisions.
As Rivers State navigates its local government election electoral challenges, stakeholders must adhere to constitutional principles and respect the rule of law.The judiciary remains the ultimate guardian of these principles, ensuring that neither executive overreach nor political exigencies undermine the democratic rights of the people of Rivers State.
Clifford N. Chuku, Esq Legal Practitioner and Constitutional Law Analyst
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