Category: Law

Can a governor or his deputy remain in office after defecting from the political party on whose platform he won election? Three judgments on the fates of Governors Bello Matawalle (Zamfara State) and David Umahi (Ebonyi State) are before the Court of Appeal and are expected to go on to the Supreme Court for final adjudication, while decisions on other pending cases against Matawalle and Governor Ben Ayade (Cross River State) and his Deputy are being expected. ERIC IKHILAE reports.

Rivers State Governor Nyesom Wike last Saturday hinted at the Peoples Democratic Party (PDP)’s readiness to challenge, up to the Supreme Court, the propriety or otherwise of the defection of three of its former governors to the All Progressives Congress (APC).

Wike said the apex court would have the last say on the defection of three PDP governors – David Umahi and his Deputy, Eric Igwe (Ebonyi State), Ben Ayade and his Deputy, Ivara Esu (Cross River), and Bello Matawalle (Zamfara State), including lawmakers in those states, who chose to emulate the governors.

By so doing, the Supreme Court would put to rest the controversy ignited by the March 8 judgments by Justice Inyang Ekwo of the Federal High Court, Abuja in two suits – FHC/ABJ/CS/920/2021 and FHC/ABJ/CS/1041/2021-  filed by the PDP to challenge the defection of Umahi, Igwe and 16 members of the Ebonyi House of Assembly, including the Speaker, Francis Nwifuru.

The apex court would be required to address the question whether or not the supposed constitutional silence on the consequence, where a serving President, Vice President, Governor or Deputy Governor defects from the party on which platform he/she assumed power, could be interpreted to amount to the exercise of the right of association guaranteed under Section 40 of the Constitution, as against the case with a legislator as provided in sections 68(1)(g) and 109(1)(g).

 

The beginning

At the conclusion of the 2019 general elections, Umahi and Igwe were inaugurated for their second term as members of the PDP. Ditto Ayade and Esu.

But they both defected to the APC on November 17, 2020 while Ayade and his Deputy followed on May 20, 2021.

For Matwalle, he won his first term by virtue of a Supreme Court judgment. His party, the PDP, came second at the poll behind the APC, but the apex court held that because the APC did not conduct valid primaries, it had no valid candidates. Thus, it voided the APC’s victory in the elections and handed same to the PDP.

Matawalle abandoned the PDP for the APC on June 29, 2021.

Some legislators in the three states also jumped ship with their governors.

 

Decided cases

While judgments have been rendered in three cases involving Matawalle, Umahi, Igwe and 16 members of Ebonyi State Assembly, some other cases filed by the PDP against Matawalle, Ayade and Esu are pending before the Federal High Court in Abuja, which decisions would be rendered soon.

 

Ogbuoji against Umahi and others

Upon Umahi’s and Igwe’s defection, the candidate of the APC in the 2019 governorship election in Ebonyi State, Senator Sunny Ogbuoji, sued at the state’s High Court demanding, among others, that having defected from the party on which platform he was elected, Umahi should be ordered to vacate office and that he, who came second, should be allowed to step in.

In his judgment on February 28, 2022, in the suit by Ogbuoji, marked: HAB/13/2022, Justice Henry Njoku of the Ebonyi State High Court, Abakaliki held that Umahi and Igwe violated no known provisions of the Constitution and the Electoral Act by their defection to warrant the grant of the plaintiff’s reliefs.

Justice Njoku added that defection did not form one of the grounds under Section 188 of the Constitution or any similar provision in the Electoral Act for which a Governor or Deputy Governor could be removed from office.

He added that by the provision of Section 308 of the Constitution, Umahi and Igwe were clothed with immunity against both civil and criminal proceedings being initiated against them, and proceeded to dismiss the suit.

 

Bashir Saleh and two others against Matawalle and others

Also, aggrieved that Matawalle abandoned the PDP, some three members of the party – Alhaji Bashir Saleh, Ibrahim Muhammad Turaki and Abdukhamid Haruna – went before the Federal High Court, Gusau, in a suit marked: FHC/GS/CS/24/2021, demanding, among others, that the defected governor be ordered to vacate office, having abandoned the platform on which he got to office.

In deciding the case on February 7, 2022, Justice Aminu Bappah Aliyu held that the court lacked jurisdiction to entertain the case in view of the provision of Section 308 of the Constitution.

Justice Aliyu, whose views were similar to those held by Justice Njoku, noted that neither the Nigerian Constitution nor the constitution of the PDP precluded any Nigerian from joining any association or political party of his/her choice, and that a governor could only be removed from office by either an election tribunal by virtue of the provisions of the Electoral Act or the House of Assembly, as per the provisions of Section 188 of the Constitution.

The judge proceeded to strike out the suit and awarded N1million cost against the plaintiffs.

 

The PDP against Umahi and others

The PDP, aggrieved that Umahi, Igwe and others elected to donate its victory to the APC, filed the two suits – FHC/ABJ/CS/920/2021 and FHC/ABJ/CS/1041/2021 – before the Federal High Court, Abuja, late last year.

In his judgment on March 8, this year, Justice Inyang Ekwo rejected all the counter-arguments by Umahi, Igwe, the 16 members of the Ebonyi State Assembly and the APC and held in favour of the plaintiff.

The defendants had, among others, queried the court’s territorial jurisdiction, and argued that the cases amounted to an abuse of court process because it was filed while the case by Ogbuoji was pending.

They also argued that the cases were statute-barred having been commenced within three months after the cause of action, as per the provision of Section 2(a) of the Public Officers Protection Act (POPA); they raised the issue of immunity under Section 308 of the Constitution (in relation to Umahi and Igwe) while the legislators argued that there was the need to comply with Section 109(1)(g) of the Constitution. There was also the argument about the ownership of votes cast at elections.

On the issue of territorial jurisdiction, Justice Ekwo held that his court was clothed with the requisite jurisdiction to hear and determine both suits because the political parties involved and the Independent National Electoral Commission (INEC) have their head offices in Abuja.

The judge faulted the defendants’ contention that the suits constituted abuse of process, holding that the cases before his court and the one in Abakaliki were not the same and that the parties were not similar.

Justice Ekwo distinguished the cases before him and those filed by Ogbuoji and Saleh and others.

On the Ogbuoji case, Justice Ekwo  held that the judgment in that case was merely a persuasive decision of a court of coordinate jurisdiction, adding: “In my view, the facts and circumstances of the case of Senator Soni Ogbuoji & 2 Ors. v. Engr. David Nweze Umahi & Anor. (unreported), Suit No. HAB/13/2022 decided on 28th February, 2022 which was forwarded to this court is not on all fours with the facts and circumstances of the case before this court. I am not persuaded by that decision.”

On the Saleh and others case, he said: “The issue in this case is not whether the 3rd and 4th defendants have the constitutional right to join any party of their choice as enunciated in page 41 of that judgement, but the consequence of the defection. I am not persuaded by that decision. It is the law, that a case is an authority for what it decides.”

He disagreed that the suits were statute-barred, noting that defection was not an official act, undertaken by the defendants in the course of the performance of their official responsibilities. The judge noted that the act of defection was personal to the affected defendants, and therefore, they cannot seek protection under the POPA.

 

Why Section 308 did not apply

On the argument by Umahi and Igwe that they enjoy immunity under Section 308 of the Constitution, Justice Ekwo held that the subject of the suit against them was not the type to which the section applies, because of its perishable nature.

The judge said: “I have not seen in any of the authorities where it is propounded that a Governor and or Deputy Governor, who defects from the political party on whose platform, he/she won an election to the office, cannot be sued by the political party to reclaim the mandate given to the party by the electorate.

“I believe that provision of Section 308 of the 1999 Constitution (as amended) was not intended to deal with a situation of the nature of this case. Therefore, relying on the provision as if it was a blanket prohibition, does not portray the proper intention of the lawmaker.

“It is my opinion that where the act of a Governor and/or Deputy Governor amounts to infringement of the provisions of the Constitution itself or creates a constitutional issue which requires the interpretation or enforcement of the Constitution, an action can lie, otherwise, this country will have a situation where a person or group of persons have been elevated to a status that makes them to be greater or above the Constitution itself.

“It will be absurd to contemplate that the Legislature will ever intend to make a Constitution that creates any person or entity above the same Constitution.  The civil or criminal proceedings envisaged in S. 308 of the 1999 Constitution (as amended) are those cases where causes of action are such that can still be enforceable after the tenure of the persons mentioned therein.

“In this case, the cause of action and the remedy thereof cannot wait till the 3rd and 4th defendants (Umahi and Igwe) leave office. Therefore, the immunity in Section 308 cannot be said to be absolute. To propound otherwise will be tantamount to creating monsters, who will neither bow to the supremacy of the Constitution nor observe any law passed by the Legislature,” the judge said.

He added that Section 308 of the Constitution is intended by the Legislature as a “veritable constitutional shield and not a political sword that is to be swung frivolously and recklessly.”

 

Who owns votes: Party or candidate?

On the question relating to the ownership of votes cast at elections, Justice Ekwo upheld the plaintiff’s contention that in view of the provisions of sections 177(c), 179(2) and 221 of the Constitution as well as the decisions of the Supreme Court in the cases of Amaechi v. INEC (2008) 5 NWLR (part 1080) 227 and Faleke v. INEC (2016) NWLR (part 1543) 61, Umahi and Igwe cannot validly transfer the votes, with which they secured victory at the 2019 election under the PDP, to the APC and still retain their seats having defected.

The judge said: “There is no argument that the cases of Amaechi v. INEC (supra) and Faleke v. INEC (supra) have put paid to the issue of the actual person that owns the votes in an election. For the avoidance of doubt, the votes in any election in our country are votes for the political party and not the candidate.”

He added that having contested the 2019 governorship election in Ebonyi and lost to the PDP, the APC cannot come through the back door to achieve what if failed to achieve at the polls by simply poaching the victorious party.

“A party cannot win an election by poaching on the candidates of the party that actually won an election. In the same vein, a person who won an election on the platform of a political party and occupied an office by virtue of that, cannot by act of defection make a party that lost an election become the party in power to the chagrin of the party that rightfully own the votes that won the election.

“Election is won on the ballots and constitutionally, ballots are sacrosanct and are ascribed to the party to whom the electorate voted. There is no constitutional provision that makes the ballot transferrable from one political party to another.

“Where the electorate express their trust in an election by giving their votes to a political party, there is no political machination or manipulation that would allow a party to short-change the will of the electorate.

“Let me put it this way, a Governor or Deputy Governor is dressed in the robes of the political party by whose vote they occupy the office. If a Governor or Deputy Governor defects from the political party by whose vote he got into office by joining another political party, such a person must be seen to have jettisoned not just the political party, but the votes of the party as well, under our law,” Justice Ekwo said.

 

Consequences of defection by a Governor and Deputy Governor in the face of the absence of a clear constitutional provision

Justice Ekwo held that although the Constitution did not contain a clear provision on what should happen to a Governor or Deputy Governor, who defected before the end of his tenure, like sections 68(1)(g) and 109(1)(g) in the case of a legislator, the consequences are the same.

He said: “Though no similar provision is made in respect of a Governor or Deputy Governor, such a lacuna is not to be celebrated or even mischievously flaunted as failure of a remedy for situations of such nature.

“It is not an assurance that any person, who occupies an elected office, would defect from the political party that puts him on the seat to a party that did not win the election, and nothing would happen.

“It would be constitutionally wrong for a person, who was sponsored by one political party, to defect and become a member of another political party before the expiration of the period he was elected and then continue with the voters’ mandate given to his former party. This is the situation here.

“It needs also to be said that the continued occupation of the 3rd and 4th defendants as Governor and Deputy Governor of Ebonyi State is in breach of the provision of Section 179 (2) (a) and (b) of the 1999 Constitution (as amended) as there was no election held in the State by virtue of which they emerged duly elected as candidates of the 2nd defendant (APC) with majority of votes cast at the election and they had not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the local government areas of the state,” he said.

 

Quality of defence put forward by Umahi and others

Justice Ekwo noted that the defendants failed to sufficiently counter the claims of the plaintiff in both suits.

The judge said: ”The 2nd, 3rd and 4th defendants (the APC, Umahi and Igwe) have not controverted the assertion of the plaintiff that it is by the votes of the plaintiff that the 3rd and 4th defendants became Governor and Deputy Governor of Ebonyi State in 2015 and 2019.

“The defence put forth by the 3rd and 4th defendant is merely that by Section 308 of the 1999 Constitution (as amended), they are granted immunity from this action. The argument of the 3rd and 4th defendants in relying on Section 308 of the 1999 Constitution (as amended) is not actually a defence on the merit but a demurrer.

“By the provision of Order 16(1) of the Federal High Court (Civil Procedures) Rules (FHCCPR) 2019, demurrer is abolished. What is required now is that a party files his defence on the merit and raises a point of law capable of terminating the suit in limine (at the outset of the case) in the defence filed. By not proffering a defence on the substantive matter, the 2nd, 3rd and 4th defendants have failed in this respect. They have not defended this case on the merit,” the judge said.

 

Why the court activated Section 109(2) in relation to the defecting 16 legislators

Justice Ekwo found that the legislators that defected along with Umahi and Igwe did so in large number to frustrate the application of the provisions of sections of S.109(1)(g) and 109(2) of the Constitution.

He noted: “From the number of the defectors, it appears to me that it is the majority of the members that defected. It is common knowledge that democracy as a system of government is founded on the rule of the majority.

“Where an action is taken in the House of Assembly by a majority, it is impracticable for the same House to take any decision that is adverse to that of the majority. It is obvious that the ploy of 15 members to defect at the same was aimed at making it impracticable for the provision of Section 109 (2) of the 1999 Constitution (as amended) to be implemented, especially if the Speaker of the House is part of the defectors.

“Where the Speaker is part of the defectors, the provision of Section109 (2) of the 1999 Constitution (as amended) becomes not applicable and that does not defeat the application of Section 109(1)(g) of the 1999 Constitution (as amended). I take judicial notice of the fact that the 20th defendant is the Speaker of the House of Assembly.

“It is not expected that the Speaker will preside over affairs concerning defection because he is part of the defectors. Where an action is taken in breach of the provisions of the Constitution and with intent to make the express consequential constitutional provision to be impracticable to implement, the court will step in to ensure that a breach of constitutional provisions with intent to frustrate consequential constitutional provisions is not achieved by the perpetrators.

“I see their act of defection as a brazen confrontation of the constitutional order with intent that they will employ technical defence to justify their defection. Such cannot be allowed to happen. In our jurisprudence, nobody can breach the provisions of the Constitution and still expect to benefit from the unconstitutional act.

“The 5th to the 20th defendants knew beforehand that when they defected from the plaintiff to the 21st defendant (the APC), the provision of Section 109 (1)(g) of the 1999 Constitution (as amended) will set in and they shall vacate their seats in the House. It is time for them to do so,” the judge said.

 

Justice Ekwo’s conclusion

He said: “In conclusion, let me put it this way, the 3rd and 4th defendants (Umahi and Igwe) did not on their own win the election of 9th March 2019 to become Governor and Deputy Governor of the Ebonyi State respectively. They were sponsored by the plaintiff (PDP) in compliance with the provision of Section 221 of the 1999 Constitution (as amended).

“Therefore, it was the plaintiff (PDP) that the electorate voted for. They cannot remain in the office as Governor and Deputy Governor respectively of Ebonyi State after their defection without the plaintiff (PDP) that the electorate voted for.

“On the other hand, the 2nd defendant (APC) was not the party elected by the electorate in the election of 9 March 2019 to govern Ebonyi State. Therefore, the 2nd defendant (APC) cannot govern Ebonyi State through the 3rd and 4th defendants when it did not win the election that produced the Governor and Deputy Governor.

“The Constitution is put in jeopardy where the will of the electorate, when they voted for a political party, can be brazenly merchandised by candidate without consequences. The act of the 2nd, 3nd and 4th defendants (APC, Umahi and Igwe) and the position of their respective counsel in this case are directed at political dismantling of the 1999 Constitution. It must be stopped forthwith,” the judge said.

 

What is before the Court of Appeal

Umahi, Igwe and the 16 lawmakers on March 9 filed two notices of appeal with which they are praying the Court of Appeal to set aside the judgement handed out by Justice Ekwo on March 8.

The affected lawmakers are  Francis Ogbonnaya Nwifuru (the Speaker), Odefa Obasi Odefa, Victor Uzoma Chukwu, Kigbsley Ikoro, Benjamin (surname not supplied), Joseph Unuhu, Nkemka Okoro, Anthony Nwegede, Chinwe Nwachukwu, Onu Nwonye, Friday L. Nwuhuo, Moses Odunwa, Chinedu Awo, Chinedu Onah, Chukwuma Igwe and Chukwu Arinze Lucas.

In the notice of appeal by Umahi and Igwe, the appellants are contending among others that the trial court erred in law when it held that the provision of Section 308 of the Constitution was not applicable to the case.

“The Hon trial court was virtually setting aside the Supreme Court of Nigeria’s decision in AG Federation v. Atiku Abubakar & 3 ORS (2007) LCN/3799(SC) to the effect that there is no constitutional provisions prohibiting President or vice and invariably the Governor and or Deputy Governor from defecting to another political party,” they said.

“They also contended that the trial court erred in law and misdirected itself when it relied on Sections 68 and 109 of the Constitution to hold that the appellants, having defected from the PDP to the APC offended the provisions of the Constitution and must vacate their offices as Governor and Deputy Governor respectively.

“There is no specific mention of Governor and Deputy Governor in the provisions of sections 68 and 109 respectively of the 1999 Constitution (as amended). By relying on sections 68 and 109 of the Constitution the trial court assumed the role of the legislator and arrogated to itself the powers of amendment of the Constitution.”

The appellants added that the trial court erred in law and overruled the decision of the Supreme Court of Nigeria when it held that the ownership of votes cast during the governorship election of 2019 belongs to the first respondent (the PDP) and not the appellants.

“The trial court relied on Amaechi v. INEC and Faleke v. INEC when same are no longer the law on the ownership of votes cast in an election,” they said.

They further argued that the trial court erred in law when it held that the appellants are deemed to have resigned from their offices as Governor and Deputy Governor of Ebonyi State, contending that “Section 180(1)( c) of the Constitution of the Federal Republic of Nigeria 1999( as amended) never contemplated, implied resignation but resignation signed by the appellants and tendered to the Speaker of the House of Assembly of Ebonyi State.

In the notice of appeal by the 16 lawmakers, they are contending that the trial court erred when it assumed jurisdiction over the case on the alleged defection of the lawmakers whereas the Constitution bestowed powers on the Speaker and the state House of Assembly to decide the fate of members that defect.

“By Section 109(1)(g)and (2) of the Constitution, the removal of the 4th to 19th appellants (the affected lawmakers) is an internal affair of the 1st and 2nd appellants (the Speaker and the House of Assembly).

“There was no evidence before the trial court that the 1st respondent (the PDP) activated the said provision,” they said.

The appellants added that the trial court was in error when it assumed jurisdiction on issue of their defection when it has no jurisdiction over same.

“The trial court’s interpretation of what amount to the Federal High Court having the powers of State High Court under the Constitution was wrong. Power of court and jurisdiction are not the same. The appellants are state officers and not federal officers.” the appellants said.

They also argued that the trial court erred and arrived at perverse findings when it held that: ‘l take judicial notice that the 20th appellant is the Speaker of the Ebonyi State House of Assembly…when the Speaker of the House of Assembly is involved the provisions of Section 109 of the Constitution becomes not applicable…’

“It was not the case of the 1st respondent that the 20th appellant was the Speaker of the Ebonyi State House of Assembly. It was also not the case of the 1st respondent that there was any difficulty or obstacle in igniting the proceeding envisaged in Section 109 (1) (g) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

“The learned trial judge descended into the arena of parties. The findings of the trial judge were not borne on the evidence before the court. The erroneous findings of facts by the honourable trial court cannot override clear constitutional provisions of Section 109(1) (g) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

“The learned trial court erred and misapplied the law when it held that the facts and circumstances of this case has made the provisions of section 109(1) (g) and (2) of the Constitution of the Federal Republic of Nigeria 1999(as amended) inapplicable.

“There was no evidence before the Hon trial court to show that the Respondent complied with the provisions of section 109(1) (g) and (2) of the 1999 Constitution (as amended)

“The provisions of section 109(1) (g) and (2) of the 1999 Constitution (as amended) are mandatory,” they said.

Religion is a delicate issue, particularly in Nigeria, where adherents of the dominant religions, Christians and Muslims, seem to be in a perpetual and sometimes destructive mutual suspicion, distrust, or competition. Therefore, it is understandable why the current adjustment to police uniform by the Inspector General of Police (IGP) in Nigeria has sparked another round of religious controversy in the polity. In a report generally available online, the IGP recently approved a new dress code for women officers, permitting them to wear stud earrings and headscarf under their berets or peak caps as the case may be. The dress code was reportedly unveiled at the IGP’s meeting with Strategic Police Managers on March 3, 2022.  According to the report, the IGP noted that the Nigeria Police workforce has officers from every local government area with varying ethnic and religious backgrounds, thus warranting the need for increased inclusion of female folks, gender mainstreaming, and diversity for optimum output and professionalism.

From the report, the objectives of the Nigerian Police are crystal clear. It is instructive to note also that no religious words such as ‘hijab’ or ‘Islamic’ or ‘Muslim’ were used in the statements of the Nigerian Police. Now, the stated objectives of the Nigerian Police can be summarised in two words: diversity and inclusivity. As a matter of fact, these objectives are also consistent with the global standard practice of other police institutions around the world that have approved the headscarf or hijab for their officers. Some striking examples of such global standard practice can be found with the Metropolitan Police (Met Police) in London, and the Police Scotland, both in the United Kingdom; the New York Police Department (NYPD) – and all over the United States of America; the Royal Canadian Mounted Police (RCMP) as well as the police officers in the Canadian cities of Toronto, Edmonton and Vancouver; the Australian Federal Police (AFP); the Swedish Police Authority (SPA); the New Zealand Police Force; the South African Police Service (SAPC) and the South African Military Force, amongst other. There are also other police forces around the world in which the hijab, or to put it better, the headscarf, is literally banned. Some of such are in Europe, and France appears the most prominent. Even at that, the pro-hijab groups in those countries are very strong.

However, many commentators in Nigeria, and perhaps for obvious reasons, have interpreted the new development in the Nigeria Police to mean approval for the use of the hijab, a religious adornment worn mainly by Muslim women following their faith (recall again that the police statement did not use any religious term or justification). Some have also pushed the comments further to accuse the IGP of using his office to promote the Islamic religion or push a religious agenda. In this piece, I intend to examine the arguments for and against the current ‘hijab’ (read headscarf) adjustment to the police uniform by the IGP from both the jurisprudence of human rights and the 1999 Constitution of Nigeria. In other words, is allowance of the ‘hijab’ or, to put better, a headscarf, for Muslim policewomen a violation of sections 10 and 42 of the 1999 Constitution of Nigeria as posited by many, including but not limited to Mr Ebun Olu-Adegboruwa, a Senior Advocate of Nigeria (SAN). Interestingly, both sides of the divide rely on human rights jurisprudence and provisions of the 1999 Constitution of Nigeria.

The arguments

Before examining either side of the arguments, it is essential to provide some contexts further to aid our understanding of the underlying issues. First, what the Nigerian police has just approved is a headscarf and not necessarily what the Muslims understand as the hijab strictly so-called. What the hijab encapsulates in Islamic theology is another matter entirely outside the purview of this piece. Still, it is sufficient to say that a headscarf, often regarded as the hijab by many Muslims and non-Muslims, is a garment that covers only the hair and neck of the wearer. The truth is, it is not only the Muslims who wear headscarves. However, it would seem that many Muslims worldwide have conceded to the compromise of a headscarf as the hijab. For want of a better adjective, I think such a compromise is imperatively healthy and understandable in every multi-religious society. Second, the idea that Muslim women are forced to wear the hijab or headscarves or face veils or niqab or burqa against their will is particularly persistent in public debates and mainstream media. Sometimes, this idea is pushed further to say that wearing the hijab or headscarves or face veils or niqab or burqa ‘degrades’ women’s dignity, and these Muslim women, therefore, need to be ‘freed.’ Somehow, these ideas also find some legal justifications in the opinions of many commentators. Consequently, it is against this background that the arguments for and against the hijab are often pushed.

The argument favouring the hijab is firmly rooted in the Islamic faith. For Muslims, the hijab is not just a piece of covering that a Muslim woman wears on her head or adorn her body for occasions or ceremonies. It is a commandment of their Lord (Allah) as prescribed in their holy book, the Quran, in chapters 24, verse 31, and 39 verse 59, commanding Muslim women to cast down their glances and guard their private parts by being chaste and for identity and respect. Accordingly, interested Muslim women and other stakeholders (parents and guardians) in Nigeria have consistently sought to enforce their constitutional right to freedom of religion under section 38(1) and freedom against discrimination under section 42 of the same Constitution. To be clear, the exact words of section 38(1) are: ‘Every person shall be entitled to freedom of thought, conscience and religion, including the freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.’ It is essential to note the emphasis in the parenthesis, which simply means that religious identity manifestation is allowed privately and publicly.

The argument against the hijab, on the other hand, is anchored, first, on section 10 of the Constitution, which provides that ‘The Government of the Federation or a State shall not adopt any religion as State Religion’ and, second, on the provision of section 42 which guarantees the right of every Nigerian against discrimination relating to their community or ethnic group or place of origin or sex or religion or political opinion. Section 42 simply forbids the conferment of any right or benefit or denial of any right or benefit on any of such grounds. The provision is thus known as the non-discriminatory provision of the Constitution. It is these preceding provisions of the Constitution that Mr Ebun Olu-Adegboruwa, like other commentators against the development in the Nigerian Police, has anchored his opposition. For example, the learned senior advocate of Nigeria was reported to have said that ‘The religion of public officers, including members of the security agencies, should be a private matter to them. The Inspector-General of Police is not competent to use the platform of his office to enforce religion. Section 10 of the Constitution of Federal Republic of Nigeria stipulates that the government and all its agencies should be neutral in religious matters.’ In summary, the argument against the hijab is that it violates the supposed religious neutrality of the Nigerian state under section 10 and discriminates against non-Muslims under section 42.

While the above argument against the hijab appears valid superficially, there are many latent flaws underneath its face value. First, the argument tends to over-flog the provision of section 10 of the Constitution on the supposed religious neutrality of the Nigerian state. Section 10 has also been interpreted by many to mean that the Nigerian state is secular without any official religious identity. This is not exactly incorrect. However, a state’s secularity or official religious neutrality is not exclusive or inconsistent with recognising plural religious identities or diversities. Thus, Nigeria is officially a religiously neutral state and a multi-religious state. The provision of section 10 only forbids the adoption of a state religion. It does not prohibit the recognition of diverse religious identities by any stretch of the imagination. That is precisely why section 38(1) guarantees freedom of manifestation of religious identities both privately and publicly. Second, the argument against the hijab tends to overlook and suppress section 38 (1) on freedom of manifestation of religious identities privately and publicly and the provision of section 42 on non-discriminatory practices on the ground of religion. To support my position on the above fundamental flaws in the argument against the hijab, I take refuge in some jurisprudential expositions on fundamental human rights and several judgements of the Nigerian Court of Appeal on the interpretation of sections 10, 38 (1), 42, and 45 of the Nigerian Constitution (regarding the hijab in particular).

Without a doubt, legal jurisprudence has played an essential role in shaping legal frameworks both Internationally and within national jurisdictions, as many cases, even in Nigeria, have required the courts to strike an appropriate balance between a broad state interest, such as neutrality or security, and individual rights, chiefly freedom of religion and non-discrimination. Accordingly, numerous judgements handed down — both nationally and internationally —have tended to pull down the wall of restrictions on rights that directly bear on inclusivity and diversity in society. In human rights jurisprudence, therefore, a human right is generally asserted in the positive and not in the negative. This means that it is for the one whose rights are infringed or allegedly infringed upon to assert such a right in the positive. It is not for another to claim that a right upheld for someone else is necessarily discriminatory against him unless he can show his positive right that is so discriminated against. So, the argument that allowing interested Muslim women to wear the hijab or a headscarf is discriminatory against non-Muslims under section 42 of the Constitution is both ridiculous and fallacious. The question is, what exact positive right of those against the hijab is being discriminated against by upholding the religious freedom of those who seek to wear the hijab? To put differently, what exact harm do those who do not and are not compelled to wear the hijab suffer when those who are interested in wearing the hijab do so? Interestingly, the Nigerian Court Appeal has posed and answered this same question in the negative in some of the cases cited below.

What the court said?

In Nigeria, the Court of Appeal in different cases has consistently considered the provisions of sections 10, 38(1), 42, and 45 of the 1999 Constitution, as well as other relevant international instruments, and came to the same irresistible conclusions that may be summarised as follows: The right of a Muslim woman or girl to wear the hijab is an inalienable constitutional right; such a right does not conflict with other provisions of the Constitution, particularly sections 10 on religious neutrality of the Nigerian state, and 42 on non-discrimination. These cases include Bashirat Saliu & 2 Others v The Provost Kwara State College of Education, Ilorin, Kwara State (No CA/IL/49/2006); Asiyat AbdulKareem (through her father), Moriam Oyeniyi and Muslim Students’ Society of Nigeria v Lagos State Government (CA/L/135/2015); and Incorporated Trustees of Christian Association of Nigeria & Ors v. Kwara State Government & Ors (LOR (20/09/2019). Quite instructively, the Court has repeatedly held that it was immaterial whether wearing the hijab is compulsory in Islam. Therefore, the emphasis was on the wearer’s right to manifest and propagate their religion in worship, practice, teaching, and observance. Section 45 of the Constitution, it must be noted, allows a restriction or derogation on some fundamental human rights in “the interest of defence, public safety, public order, public morality or public health and the protection of rights of other persons.”

From the foregoing, it is crystal clear that the IGP of the Nigerian Police cannot be said to have breached any provision of the Nigerian Constitution by the latest adjustment to police unform. It is perplexing, therefore, to see any lawyer who claims to be a human rights activist, particularly any lawyer of the eminent status of a senior advocate of Nigeria, fail to appreciate the nuances of jurisprudence on issues of human rights, their modern trends, as well as the consistent interpretation of the Nigerian Constitution by the appellate court.

It is perhaps necessary that I also consider other arguments that have been offered against the constitutionality of the hijab in public institutions in Nigeria. These include the claim that it will lead to a floodgate of rights assertions across other religious diversities. A babalawo (a traditional religious worshiper), it is said, may also demand to be allowed to manifest his religious identity by wearing his traditional amulets and other insignia on his police uniform. A Christian of the Celestial Church denomination, it is also argued, may insist on walking barefooted daily in his police uniform. It is also contended that a traditional masquerade worshiper may insist on wearing his regalia on his police uniform. But how practically plausible are these other banal claims (never mind that many acclaimed Christians and Muslims hypocritically wear traditional amulets discreetly for ‘protection’)? But let us admit for the sake of argument that these other claims are also practically plausible, then it will be within the rights of such persons to demand or insist on such rights. After all, the underlying philosophy is inclusion and diversity.

In conclusion, while the argument on leaving symbols of religions and practices out of public affairs and institutions in a religiously neutral but plural society looks superficially attractive, it is preposterous not to recognise the far-reaching danger of exclusion of a people (be it Muslims or non-Muslims) from effective participation in the educational, social and public affairs of their society because of barriers or discrimination against their values or beliefs or faiths. A Christian, Muslim, or traditional worshiper should never have to choose between effective participation as a freeborn member of society and upholding basic tenets of their faiths that do not necessarily offend our common sensitivity or national security. However, it is granted that the equilibrium will never be balanced, and we cannot help that. But we can all help with continuous evolution or inculcation of practices that will encourage and promote inclusivity. This is the standard practice or approach in other jurisdictions. And, yes, this includes evolving practices that will accommodate the preferences of people of all faiths and beliefs as practicable as possible. As we evolve or develop inclusive practices to build our country, all sides of the divide must also learn to be tolerant and accommodating. That way, peace and progress will not elude our land.

 

• Lateef, PhD, writes from Columbia Law School, New York.

Following last Tuesday’s voting on 68 bills recommended by the Joint Committee on Constitution Review, the National Assembly passed the baton for amending the 1999 Constitution for a fifth time to Houses of Assembly. Can the states muster the required majority to replicate the federal lawmakers’ feat, given the volume and nature of some of the bills? ROBERT EGBE asks.

There have been four successful amendments to the 1999 Constitution. A fifth attempt got a boost at the National Assembly last Tuesday, with lawmakers voting on the 68 bills recommended by the Joint Committee on Constitution Review.

The lawmakers voted in support of 59 out of the 68 amendments and turned down nine proposals.

This means the battle to review Nigeria’s grundnorm will now shift to the Houses of Assembly.

Previous amendments to 1999 Constitution

Between 1999 and 2022, there have been four amendments in the following orders:

July 16, 2010: On July 16, 2010, the 1999 Constitution was altered for the first time. There were a series of amendments therein but Section14 altering original S.145(1) stood out to deal with the constitutional requirement of the President to transmit power once he is leaving office temporally or unable to perform the functions of his office.

It was further provided in S. 145(2) that if the President fails or is unable to transmit power within 21 days, the National Assembly shall, by simple majority resolution mandate the Vice President to perform the functions of the office of the President as Acting President until he notifies the President of the Senate and Speaker of the House of Representatives that he is now available to resume his functions as President.

November 29, 2010: On November 29, 2010 (barely four months after, the National Assembly came up with yet another set of alterations essentially targeted at the time frame within which  the Independent National Electoral Commission (INEC) shall conduct elections into the respective elective offices in the country and the determination of election petitions.

Some of the alterations in this second amendment amended provisions of the first alteration and not the substantive provisions, which, according to human rights lawyer, Malachy Ugwummadu, “underscore the haste and imprudence on the part of the legislators.”

March 4, 2011: On  March 4, 2011, the 1999 Constitution was further amended essentially to expand the jurisdiction of the National Industrial Court and make it a court of record.

2018: In June 2018, President Muhammadu Buhari signed an amendment to the 1999 Constitution passed by the 8th National Assembly. This fourth alteration focused on the age qualifications for elective officers as well as financial autonomy to the Legislature across the tiers of government.

It also limited the number of terms a vice president or deputy governor who inherits the presidency or the governorship can seek re-election.

 

How lawmakers voted in 2022

The House of Representatives has 360 members, while the Senate has 109. The legislators used e-voting and not the voice-vote method often employed for the passing of bills and motions.

The purpose of this was to ensure that the total number of senators or house of representatives members in attendance did not fall below the minimum number required to adopt a proposed clause, and that any proposal that was passed met the two-third majority approval criterion.

59 items got the yes vote last Tuesday in both chambers. They include:

1. Establishment of the Office of the Accountant General of the Federation and the Office of the Accountant General of the Federal Government. 2. Separation of the Office of the Attorney General of the Federation and of the State from the office of the Minister and Commissioner for Justice. 3. Financial Autonomy for Local Government. 4. Local Government Administrative Autonomy. 5. Financial Autonomy of State Legislatures and State Judiciary. 6. Enforcement of Legislative Summons. 7. Inauguration of Senators and Members-Elect. 8. Institutionalization of Legislative Bureaucracy in the Constitution. 9. Uniform retirement age and pension rights for Judicial Officers. 10. Hearing in the Process of recommending the removal of Judicial Officers. 11. Devolution of powers (airports, railways, Correctional Service. 12. Finger prints, Identification and Criminal Record. 13. National Grid System. 14. Removal of Transitional Law-making powers of the Executive. 15. Time frame for the submission of Ministerial or Commissioner nominees. 16. Timeline for the presentation of Appropriation Bills. 17. Membership of the National Security Council to include Presiding Officers of the National Assembly. 18. Power to summon President and Governors. 19. Establishment of State Security Council. 20. Time frame for the conduct of population census. 21. State of the Nation and State of the State Address. 22. Composition of the members of the Council of State. 23. Independent candidacy.

The rejected bills include: 1. Gender bills. 2. Diaspora voting. 3. Expansion of the scope of Executive Immunity. 4. Affirmative action. 5. Procedure of overriding Presidential veto in constitution alteration. 6. Removal of presiding officers. 7. Inclusion of Value Added Tax on the Exclusive Legislative List. 8. Defining Acts that constitute torture, inhuman or degrading treatment.

 

Knocks, kudos for lawmakers by SANs

Senior lawyers were generally optimistic of the National Assembly’s latest effort.

They, however, urged the lawmakers to revisit the issues of restructuring and diaspora voting, among others.

On Tuesday, the lawmakers commenced the process of altering some sections of the 1999 constitution.

Mr. Kunle Adegoke, SAN, said he believes the National Assembly should be commended on a number of these issues. Adegoke said: “Legislation on and collection of Value Added Tax cannot be an item on the Exclusive Legislative List. It should rather be a residual matter for the states. The historical antecedent of VAT in Nigeria can be traced to the 1979 Constitution in which it was dubbed “sales tax”. The decision of the Supreme Court in Aberuagba v. AG Ogun State makes it a residual matter for the States.

“This is more consistent with the need to achieve fiscal federalism by which the states should be more financially strong and reduce their appendage status on the federal government.

“The idea of immunity for the presiding officers of the National Assembly is objectionable. It is not done anywhere in the world. The limited immunity conferred on the legislature by the Constitution in accordance with the relevant Act or Law is enough. Sequel to such immunity, no legislator can be sued for an act or speech made in Parliament and neither can court processes be served on a member in Parliament. Such immunity is enough. Anything in excess of this shall be further promotion of impunity.”

He, however, made a case for Nigerians abroad, saying “Voting in diaspora ought to be allowed. We ought to accord Nigerians living abroad their democratic rights.

“The idea of constitutional roles for monarchs is unnecessary. This ought to be rejected. It will only lead to increase in the cost of governance which is already suffocating our fiscal survival as a nation.

“While affirmative action is commendable in relation to women empowerment, I believe the idea of special number for women in Parliament or executive positions will not promote merit but mediocrity. It ought to be rejected. While affirmative action may be encouraged for political parties to embrace, it ought not to be a legislative item.”

The lawyer commended the provision for fiscal autonomy for the legislature and the judiciary.

He said: “A country where the executive dominates the other arms of government cannot be described as democratic or civilised. It cannot even be praised for the rule of law and separation of powers. The abuse to which the office of the Attorney-General has been subjected by political office holders is alarming.

“While the Minister for Justice may be political, the Attorney-General cannot dabble into politics as his loyalty ought to be to the need to do justice and not to do the bidding of an appointor, whether President or Governor. This has unfortunately been the case in Nigeria as Attorneys-General have rather become willing tools in the hands of the executive to persecute political opponents.”

On increment in the retirement age of judges to 70, Adegoke described it as “commendable.”

He said: “Many of them retire when they have more to give having been trained and retrained by the system. I believe this is a positive development.

“Railways and electricity are better off as items on the Concurrent Legislative List. The current structure recognises electricity as an item on the Concurrent List but adjustments need to be made for the States to provide electricity beyond areas not merely covered by the national grid. Positive development in all ramifications is not possible where the simple provision of electricity is not possible. The current system has failed and the states should be encouraged to develop better transportation systems by rail and generate electricity to meet the needs of the people.”

Another SAN, Mba Ukweni, commended the move to devolve power to states and local governments.

Ukweni said: “What is key to me is the issue of devolution of power. I consider it key because the states are just relaxed, just like the local governments; the states are operating the way local governments used to operate. Every month they go and collect money and spend what they are collecting. They are not making any effort to develop whatever resources that are with them, there is no initiative, there is no ingenuity.”

He noted further that merely amending the Constitution to devolve powers is not enough unless the law is implemented.

Ukweni said: “Devolution of power is okay, and it should be applied.”

The lawyer further urged the lawmakers to consider amending the Constitution to provide for restructuring and a national conference.

“We shouldn’t run away from the main basis of our existence, Even in marriage, you accept yourselves, people agree to come together and if the relationship becomes stale, they agree on how they should continue to exist, so to me, that is key.

“If we are to stay together, let us agree that we are to stay together or, agree that we are not going to stay together. If we are staying together, we agree on our basis of staying together. In a particular state or region, there will be competition, if we sit down and decide on our basis of existence, we will see the world begin to move in a particular way. I maintain the fact that there is no part of this country that is not useful to the other. All parts are useful. Just like in the family, every member of the family is useful.”

Chief Louis Alozie SAN also shared his view, reasoning that the voting on the exclusion of VAT from the exclusive legislative list and rejection of immunity for the Senate President and Speaker reflected the nation’s mood.

He said: “The Federal Government has too much on its hands, which render the states unviable. So seeking to take VAT away from states was not good enough. The spirit of federalism doesn’t support weak and poor state governments.

“The issue of immunity has been controversial as it breeds tyranny and arbitrariness on the powers of the president and governors. With the perceived widespread corruption in the system, it is not in the interest of the nation to grant immunity to heads of the legislative arms of government.

“On the issue of financial autonomy for local governments and state judiciary, they are both double-edged swords. They can engender growth and development at the local government level, and independence of the judiciary. The snag there is that local governments are creations of the Houses of Assemblies. So, they can’t have more powers than are granted by the state governments. Again, because he who pays the piper dictates the tune, the Federal Government under a power drunk and autocratic president can take over the control of the local governments and state judiciary. This could lead to anarchy and undermining of the powers of the state governments.”

Alozie was indifferent about the separation of offices of AGF and state AGs from Minister of and Commissioner for Justice.

He said this “may not have much meaning in that the appointing authority would steal retain control of these offices. How many thieving presidents and ministers have been successfully indicted and prosecuted by the Economic and Financial Crimes Commission (EFCC)? It’s like they are afraid of the very big men. This is why those known to be corrupt can contest election to even the highest office in the land. The point being made is that in practical terms, there would be no difference. They have only succeeded in creating more jobs for party loyalists.

“Raising the retirement ages of judges to 70 years is a welcome development. Most of our judges retire when their experience is most needed.

“Finally, voting for states to legislate on railways and electricity seems to me like abdication of responsibility. How many states are viable enough to undertake these ventures?”

 

Battle shifts to states

Both chambers are expected to transmit the bills to the Houses of Assembly by the clerk of the National Assembly for their concurrence.

There are two procedures for a constitution review attempt to succeed.

Four-fifths majority: This is the more stringent process for alteration and it states that for the alteration to be valid it must be passed by the votes of not less than the four-fifths majority of all the members of each House of the National Assembly i.e. the Senate and the House of Representatives.

After it is passed by the requisite majority of the Houses, it must then be approved by a resolution of the House of Assembly of not less than two-thirds of all the country’s states.

The requirement for the four-fifths majority is with respect to Section 8 of the 1999 Constitution which deals with the process of creating a new state or Local Government Area (LGA), boundary adjustment of an existing state or LGA, Section 9 of the 1999 Constitution which deals with the process for altering the Constitution and Chapter IV of the 1999 Constitution which deals with the fundamental rights of all Nigerians.

However, this procedure is not required for the current bills passed by the federal lawmakers.

Two-thirds majority: This procedure is the process that must be followed to alter any part of the Constitution not falling under Procedure above. For the alteration to be valid it must be passed by the votes of not less than two-thirds majority of all the members of each House of the National Assembly i.e. the Senate and the House of Representatives.

After it is passed by the requisite majority of the Houses, it must then be approved by resolution of the House of Assembly of not less than two-thirds of all the states in Nigeria. At present, there are 36 states in Nigeria, therefore the proposed amendments must be passed by resolutions of the House of Assembly in at least 24 States.

After the requisite number of states has approved the alterations, the bills then require the assent of the president, according to section 58 of the constitution.

If the president declines assent to the bills, section 58 of the constitution empowers the national assembly to pass the bills through a two-third majority.

Also, the cycle of the amendment process ends after each legislative tenure.

As a result, this process of amending the constitution cannot go beyond the ninth assembly, nor can deliberations on the current revisions continue when a new assembly is inaugurated.

The Nigerian Bar Association Section on Public Interest and Development Law, (NBA-SPIDEL) has appointed eight Senior Advocates of Nigeria (SANs) and 35 others as planning committee members for its annual conference holding in Sokoto State from May 22-26, 2022.

A statement released by the Publicity Secretary of the Section, Godfrey Echeho, named a former chairman of the Asset Management Corporation of Nigeria (AMCON) Dr Muiz Banire, SAN, as the Chairman of the Planning Committee and Dr. Sam Amadi as his vice.

It added that Ms. Beauty Uwakhoye of the NBA Abuja Branch will serve as Secretary while Ms. Folake Abiodun of NBA Ibadan will act as her assistant.

Some notable members of the committee include Dr Sani Garun-Gabbas SAN; Anthony Malik SAN; Chuka Ikwuazom SAN; Ousegun Ajose-Adeogun SAN; Attorney General, Sokoto State, Suleman Usman SAN; Kunle Adegoke SAN; Ikeazor Akariwe SAN And Emeka Obegolu, SAN.

Others are Princess Frank-Chukwuani, The Secretary of the Council, Emeka Nwadioke, a Council member, Dr Uju Agomoh, the Vice Chairman of Development Law Group of Spidel, Mr Ikhide Ehighelua, Aisha Mohammed, Victor Nwakasi, Kunle Edun, Eze Ajuluchukwu, Daniel Asomeji, Jessee Nwaenyo Iheanacho Uche, Stan Mbaezue, Abdullahi Karaye, Godfrey Echeho, Chisom Onuoha, Gbenga Onyire, Mr President Aigbokhan and Chika Okolie.

Also, included on the list are Simple Dioha, Madu Jo-Gadzama, Folake Abiodun, Aisha Abdullahi, G.C. Madubugwu, Nelson Azunna, Najib Tambuwal, Chioma Ekene, A. J. Ottah, Faith Dukuye, Chief Sunday Panwal, Kelvin Lorzenda, Okey Ohagba and Charles Ajiboye.

The planning committee will be assisted by a local organising committee headed by Mr A.Y Abubakar and Kabiru Abdullahi Illo as Secretary.

According to Echeho, the NBA-SPIDEL Sokoto Conference which has the theme “What is the Role of Law and the Rule of Law in Nigeria?” will be attended by the Chief Justice of Nigeria, Justices of the Supreme Court, Appeal Court, Legal Practitioners, Activists, Professors, Politicians, lawmakers, Ministers, Governors, Government Officials and Political thinkers as Resource persons.

He quoted the NBA-SPIDEL Chairman, Dr Monday Ubani, as advising every lawyer in the country to plan to attend the conference as it will be a memorable event of the year.