Issues Before the Law Review Committee 

The Advocate

By Onikepo Braithwaite

Committee to Review the Laws of the Federation 2004

The news that the Honourable Attorney-General of the Federation and Minister of Justice, Prince Lateef Fagbemi, SAN (AGF), has set in motion a Committee chaired by former Ekiti State Attorney-General, Olawale Fapohunda, SAN (our Columnist, “Serious Matters”), to review the Laws of the Federation which were last audited and updated in 2004, is not just welcome, but timeous. Aside from the fact that we still have laws that prescribe a fine of N20 upon conviction (which amount was still ridiculous in 2004), some laws are simply outdated, irrelevant/overtaken by events, while others are inconsistent with the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution). 

Outdated  Laws 

Take the Stamp Duties Act (SDA), it has some somewhat outdated punishments for various offences, prescribing fines of N20, N200, N1,000 and the like. For instance, Section 25 of the SDA prescribes a penalty of a N20 fine for denying or obstructing access of authorised Inspectors to examine any document chargeable with stamp duty, to ascertain that it is in full compliance with the SDA. Today, can you even purchase one TomTom sweet or kolanut with N20? I doubt it. Similarly, Section 13(1)(b) of the National Youth Service Corps Act  (NYSC Act) inter alia prescribes a fine of N2,000 for those who fail to show up for NYSC as directed by the Act. Some other laws are no longer applicable, and need to be expunged from the Laws of Federation completely.

Laws that are Inconsistent with the Constitution

Last week, I discussed the inconsistency of Section 396(7) of the Administration of Criminal Justice Act 2015 (ACJA) which allowed a Judge who has been elevated to a higher court to complete part-heard criminal matters, so as not to delay criminal justice, but is contrary to Sections 253, 258 & 273 of the Constitution. It was initially struck down by Gabriel Kolawole J (now JCA) and subsequently, declared null and void by virtue of its inconsistency with the Constitution, by the Supreme Court in Ude Jones Udeogu v FRN, Orji Uzor Kalu & Slok Nig. Ltd (2020) LPELR-57034(SC). 

The Law Review Committee, must examine all the existing laws with a toothpick. And, the truth of the matter is that, even if there isn’t going to be holistic redrawing of the Constitution presently, there may be need for some constitutional amendments for perfect synergy between the Constitution and Statute, for what the country wants to achieve with its legal framework. 

For instance, Section 179(2) of the Constitution sets out the requirements for a Candidate in a Gubernatorial election with two or more Candidates, to be deemed to have been duly elected. And, even though Section 78 of the Constitution donates power to INEC to conduct elections, INEC must do so within the ambit of the Constitution. If for a valid reason INEC has to declare an election inconclusive, then there should be a clear proviso to Section 179(2) of the Constitution (and other similar provisions) allowing it, because the conditions for declaration as Governor in Section 179(2) are clear, unequivocal and categorical. They cannot be varied by the EA, subsidiary legislation or INEC Guidelines, because it is trite that a law cannot be used to amend the provisions of the Constitution; Section 9 of the Constitution sets out the way and manner in which the grundnorm can be amended. 

The scenario that played out in the 2018 Osun Gubernatorial election, is a prime example in this regard. Senator Ademola Adeleke had already satisfied the conditions set out in Section 179(2) of the Constitution to be declared as the duly elected Governor of Osun State. But, then, INEC declared the election inconclusive, making it appear as if INEC’s decision is superior to Section 179(2) of the Constitution. This cannot be so, as Section 1(1) of the Constitution clearly declares the supremacy of the grundnorm and its bindingness on all authorities and persons throughout Nigeria, which naturally includes INEC that is a creation of the same Constitution by virtue of its Section 153(1)(f). In Saraki v FRN (2016) LPELR-40013(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC (now CJN), the Supreme Court confirmed the Constitution as the “supreme law of the land” and “the basic law from which all other laws of the society derive their validity”. 

Last year, there was a hot debate on whether the Minister of Arts and Culture, Hanatu Musawa should be appointed, because she hadn’t quite completed her NYSC programme. But, was she really doing anything wrong? On the face of it, it was easy for all to say she must complete her NYSC, before she was made a Minister. But, constitutionally, NYSC is not a requirement for a Ministerial appointment. Section 147(5) of the Constitution simply provides that a Ministerial appointee must be qualified for election as a member of the House of Representatives. The qualifications and disqualifications for election to the House of Representatives are stated in Sections 65(1)(b), (2)(a) & (b) & 66 of the Constitution respectively, and there’s no mention of the completion of NYSC in those provisions. In fact, in terms of education, all that is required is education up to at least School Certificate level or its equivalent, and School Certificate level defined in Section 318 of the Constitution is as low as Primary School Leaving Certificate – in short, NYSC is not required. 

Section 2(1) of the NYSC Act sets out those who must do NYSC, while Section 2(2) thereof lists the exceptions. It may be best to address the issue of Ministerial appointments in the exceptions, since the matter of Ministerial Appointees and NYSC may be becoming a recurring decimal. There was also a controversy in the case of former Finance Minister, Kemi Adeosun. Or maybe it was just a ruse to get her out of office! Of course, I have always argued that the bar of educational qualifications for elective officers should be lifted, and that Primary School Leaving Certificate is definitely not equivalent to attending School up to School Certificate Level. It is rather bizarre and inexplicable to place an impediment on educated political office holders, by insisting they must have completed the NYSC programme, when their barely educated counterparts only have to attend Primary School to qualify for the same jobs. Anyway, it appears that things like merit, intelligence and education are no longer appreciated in Nigeria; the more unintelligent and uneducated you are, the more progress you can make!

Laws Must be for the Good Government of Nigeria

Though there is a need to carry the Legislature along and get their cooperation to make the project more effective and successful, the Law Review Committee will submit its work to the Federal Executive Council, and consequent upon deliberation, it will go to the  National Assembly (NASS) for the necessary action,  amendments etc. This may be the time for the Committee to make recommendations, and for FEC and the Legislature to attend to the matter of educational qualifications for elective office holistically. We cannot continue to place Welders, and those who are barely literate – all unequipped to govern, into high offices to mess up Nigeria as they have been doing, due to their lack of knowledge and incapacity. 

It appears that NASS does not always fulfil its constitutional responsibility of making laws for the good government of Nigeria (see Section 4 of the Constitution), and sometimes inadvertently and sometimes deliberately, it makes laws to satisfy certain interests. It is time for NASS to step up to the plate, and be as adamant as it is in fighting for national honours, in enacting good laws. In terms of deliberately enacting laws to satisfy certain interests, examples are the self-serving Section 29(5) of the Electoral Act 2022 (EA) to suit the interest of unqualified political candidates; and the amendment to Section 38(2) of the Central Bank of Nigeria Act 2007 (CBN Act) to suit the interest of the Federal Government in increasing Ways and Means Advances from 5% to 10%; also see Section 38(3)(b) of the CBN Act which prohibited the securitisation of Ways and Means Advances, and has now been by passed to allow the collaterisation of same.  

In terms of possible inadvertence, there is Section 7(2) & (6) of the Nigeria Police Act 2020 (NPA). When I discussed with a Police Officer, among other things, I was made to understand that by the time the Inspector General of Police (IG) is appointed from the rank of Deputy Inspector General, it is unlikely that such an individual has up to four more years to serve in the Police Force, which is the tenure for the IG provided in Section 7(6) of the NPA. Additionally, Section 18(8) of the NPA provides that every Police Officer shall serve for 35 years or until the attainment of the age of 60, whichever comes first. So, invariably, the IG, on appointment, is a serving Police Officer (see Section 215(1)(a) of the Constitution), but ceases to be a serving Police Officer before the end of the tenure. This state of affairs played out in the case of the last few IGs, including the present one, Dr Kayode Egbetokun. 

Of course, the amendment of Section 18(8) of the NPA to allow an IG complete the four year tenure, whether or not the 35 years/age 60 retirement is exceeded, is a deliberate enactment by NASS – the jury is however, still out on whether the amendment is expedient or to serve specific interests. Section 215(1)(a) of the Constitution makes it mandatory that the IG be appointed from among serving Police Officers; it doesn’t expressly state when the IG must retire. See the case of Nwakire v COP (1992) LPELR-2097 (SC) per Philip Nnaemeka-Agu, JSC, on the application of the literal rule of interpretation. However, Rule 020908(i) & (ii) of the Federal Government Public Service Rules (2021 Edition) clearly states that the retirement age of a Public Officer is 60 or 35 years in service, whichever is earlier, and no Officer shall remain in service beyond then. The Fifth Schedule to the Constitution Part II Public Officers for the Purposes of the Code of Conduct Paragraph 9 includes the IG, all other Police Officers and officers of government security agencies established by law, as Public Officers. 

Of course, the Constitution precedes the NPA, and in the past, the office of the IG wasn’t tenured, as it has become since 2020. I had identified the problem in 2018 or so, when even though at the time, the office of the IG wasn’t tenured, Ibrahim Idris Kpotum reached the retirement age, but was kept on a bit longer. With the enactment of the NPA, other IGs, Mohammed Adamu and Usman Alkali Baba, also faced the same retirement age problem, and also stayed a little bit beyond when they should have retired. 

While many complained that the amendment of Section 18(8) of the NPA is self-serving, in that it allows the President’s appointee to have an extension of stay in the Police, others argue that it is the best option, because, usually, if the IG is chosen from the rank of AIG, many experienced, well trained DIGs who have not reached the retirement age are let go, due to the fact that, by convention, they shouldn’t serve under an IG who was hitherto junior to them in rank. During the time of Idris Kpotum, seven DIGs went on forced retirement. This translates to a waste of the country’s resources, because it means that much needed hands are needlessly retired, while their expertise (including training which the Police has paid for) is wasted, by not being put to any use. 

Conclusion 

If the mandate of the Law Review Committee is not just about changing outdated fines from N20 to N2 million, but to actually do a complete audit of our laws in terms of their content, it will be good. It is important for them, to decide what each law is designed to achieve and whether it is actually doing so. Is the Committee going to address touchy issues like that of the Same Sex Marriage (Prohibition) Act 2013 (SSMPA) which prohibits and criminalises same sex relationships, but is silent about men not just cross-dressing as women, but promoting homosexual sexual content which may be dangerously close to offending the SSMPA? Or do laws like the SSMPA breach the fundamental rights of those who choose to go down that road? See Sections 37, 38(1) & 39(1) of the Constitution which guarantee our right to privacy, freedom of thought and expression, respectively. Of course, the supporters of the SSMPA argue that the law falls under Section 45(1)(a) of the Constitution, that is, a law that restricts the aforementioned freedoms in the interest of public morality. The task ahead of the Fapohunda Committee is not a particularly easy one, and we wish them the  best of luck in their endeavours.