Aug 4, 2019

Reviewing Nigeria’s Constitutional Arrangement: A Few Considerations (1) | Fifehan Ogunde


Nigeria has a very unique constitutional arrangement. It incorporates several compromises designed to suit the multi-ethnic and multi-religious nigerian state. However, we need to reconsider the current constitution and assess its usefulness to the nigerian society.

CONSTITUTION IN CONTEXT
LEGISLATIVE LISTS

Under Sections 4 and 5 of the Constitution, legislative powers are divided between the National Assembly and the State Houses of Assembly. Matters under the exclusive list are within the legislative purview of the National Assembly and matters under the concurrent list can be legislated upon by both the National and State Houses of Assembly. Matters not contained in either list are regarded as ‘residual matters’ and any Act passed by the National Assembly in these ‘residual areas’ are inapplicable in states that have not incorporated them into domestic law. These lists are largely similar to those contained under the 1979 constitution. Different global, regional and domestic  developments have necessitated the review of these lists. Some matters need to be clearly outlined as belonging to either lists e.g human rights and criminal justice. Other matters may.need to be divided between the federal and state to ensure excess power is not concentrated in either of the legislative houses



STATE RELIGION

Section 10 prohibits the Nigerian Federation or any State from adopting any religion as state religion. However, criminal legislation of certain states in Northern Nigeria remain rooted in Islamic law. As a matter of fact, the Sharia Penal Code governs the conduct of Muslims in about 12 Northern States with the state Penal Code applicable to non-Muslims. Furthermore, Section 260 and 276 establishes Sharia Courts of Appeal in the Federal Capital Territory and in states that ‘require it’. These courts regulate matters relating to Islamic personal and criminal law. No other religion in Nigeria enjoys such a great deal of constitutional protection. This position itself violates the spirit of Section 10 and needs to be reviewed.  The integrity of the constitution as the Supreme law making instrument in Nigeria also depends to a large extent on the representation of the constitution as treating all Nigerians fairly and equally without discrimination on grounds of religious belief or affiliation. This does not represent the current position of the Nigerian Constitution.





COURT JURISDICTION

Aside from the fundamental rights granted to Nigerian citizens under Chapter IV of the constitution, there are ‘fundamental objectives of government policy’ listed under Chapter 2 for which the government has a duty to pursue. However Section 6(6c), in granting jurisdiction to the Courts, does not extend the jurisdiction of the Courts to ‘any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution’. Chapter 2 covers the vast majority of economic and social rights (right to work, right to education, right to health, environmental rights etc). Under Chapter 2 (Section 17) for instance, the state is to direct policy towards ensuring that ‘children, young persons and the age are protected against any exploitation whatsoever, and against moral and material neglect’. However, Section 6(6c) suggests that the Court’s jurisdiction under the Constitution is not extended to matters that relate for instance to actions being taken by the government to prevent children from hazardous labour. It may even arguably imply that even if the government is failing in this regard, the Courts do not have jurisdiction to make orders in this regard against the government. Some scholars have argued that the constitution can be interpreted otherwise but in any case, there is no reason why the government of a country that seeks progress in matters relating to economic and social rights such as the right to education or freedom from the worst forms of child labour for instance should not be held accountable in this area. There is no justification in my view for the duties listed under Chapter 2 to remain mere ‘fundamental objectives of government policy’. They must be incorporated as fundamental rights under Chapter IV which can be duly enforced in the Courts without any procedural impediments, particularly such as is related to jurisdiction.





FUNDAMENTAL RIGHTS



Section 38 of the Constitution provides for the right of Nigerians to hold opinions and impart information without interference. However, Section 39 provides that laws which are ‘reasonably justifiable in a democratic society’ may be imposed to regulate wireless broadcasting, television and cinematography. The question of what may be ‘reasonably justifiable’ is presumably a question for interpretation by the Courts. There is however no reason why the constitution cannot contain provisos as to what may not be ‘reasonably justifiable’. Section 42 deals with non-discrimination and further to Section 42(1), a person shall not be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which other individuals are not subjected. It must however be noted that the question of discrimination extends to matters relating to unjustifiable differential treatment of other individuals on these prohibited grounds. A person may not necessarily be subject to disabilities or restrictions but can still be a victim of discrimination if others enjoy privileges not available to the individual in circumstances which cannot be justified. This is especially evident in matters relating to proprietary rights under customary law. The definition of discrimination under Chapter IV is also problematic and in need of review.



GENDER ISSUES



For an individual born outside Nigeria to apply for citizenship under Section 28, such an individual must be of Nigerian ancestry (grandparents being Nigeria) or a woman married to a citizen of Nigeria, irrespective of their ancestry. This excludes non-Nigerian men who are married to Nigerian citizens. There is no reason why such a provision should exclude these category of people. Furthermore, Section 29(4) deems a woman who is married ‘of full age’ for the purpose of renouncing citizenship. In 2013, protests were held in different parts of the country with respect to the effect of this provision, particularly in relation to the age of marriage of women in the country. While Section 29(4) may not validate child marriage as some scholars or activists opine, it remains a problematic provisions which in reality serves little positive purpose as it currently stands.



TO BE CONTINUED



Fifehan Ogunde

Oluwafifehan Ogunde is an research specialist and consultant with research interests in human rights law, criminal law and constitutional law. He has a Master’s degree in Human Rights Law from the University of Nottingham and a Bachelor’s degree from the University of Sheffield. He is also a barrister and solicitor of the Federal Republic of Nigeria, having been called to the Nigerian Bar in February 2012.


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