Balogun Sofiyullahi .O
  1. INTRODUCTION

The House of Representatives was in a rowdy session on the 7th day of June, 2018 as to the propriety of the Presidential declaration on the new Democracy Day as  June 12th  to be observed as a Public Holiday in the stead of the long observed May, 29th , having regards to the Public Holiday Act, which consequently necessitated the House to saddle the Committees on Justice, Rules and Business to advise it on the matter within a short spate of time.

However, this writer intends to argue that the Presidential declaration is valid and in line with the provisions of the Public Holiday Act (hereinafter may be referred to as the Act) Cap. 378 , Laws of the Federation of Nigeria, 2004.

  1. THE PRESIDENT’S POWER AND DISCRETION

Discretion means according to Merriam Webster,  “the right to choose what should be done in a particular situation.”

The President’s power within a Presidential System of Government is indeed very wide but must be exercised within the bound or realms of the Country’s Constitution or the extant Laws enacted by the Legislature for its validity. See A.G. ABIA STATE v. A.G. FEDERATION (2003) 4 NWLR (PT.809)124, (2003) LPELR-SC.227/2002, A-G FEDERATION v. ABUBAKAR  (2007) All FWLR (Pt.375) pg.405

The President of a country is the personification of the State within the Country and her foreign affairs and hence, the concentration of the Executive Powers of the Federation in the holder of such office. Section 5(1) of the 1999 Constitution provides:

Subject to the provisions of this Constitution, the executive powers of the Federation:

  • shall be vested in the President and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and
  • shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.

Based on this provision, the President based on his personal judgment may in his unfettered discretion exercise his power in person or such may be delegated to authorized persons within Section 5(1)(a) above and he is equally meant to  execute and maintain the Constitution and  all Acts of the National Assembly.

  1. DEMOCRACY DAY CELEBRATION IN NIGERIA AND THE PUBLIC HOLIDAY ACT

29th day of  May in every year had always been kept as a Democracy day in Nigeria in order to mark the year of our return to civilian rule since the beginning of the Fourth Republic in Nigeria on 29th day of May, 1999 when the 1999 Constitution effectively  came into force or operation by virtue of Section 320 of the 1999 Constitution which provides:

“The provision of this Constitution shall come into force on 29th day of May 1999”.

See also Section 1(2) of the Decree No. 24 of 1999 or Constitution of the Federal Republic of Nigeria (Promulgation) Decree, 1999.

However, the President of Nigeria by a Press Release declared that 29th day of May henceforth shall merely be kept as a National Public Holiday while 12th day of June shall in its place be maintained as a Democracy day which had sharply divided lawyers on the issue.

Essentially, the Law regulating Public Holiday in Nigeria is the Public Holiday Act which gives the Executive Arm of Government the power to declare some days as a Public Holiday in addition to the ones specifically provided for in the Act.

For ease of reference, Section 1 of the Act provides:

“The days mentioned in the Schedule to this Act shall be kept as public holidays

throughout Nigeria.

Section 2(1) of the Act provides:

In addition to days mentioned in the Schedule to this Act, the President may by public notice appoint a special day to be kept as a public holiday either throughout Nigeria or in any part thereof, and any day so appointed shall be kept as a public holiday.

The Schedule to the Act provides for the following Holidays pursuant to Section 1 above:

“1. New Year’s Day

  1. Good Friday
  2. Easter Monday
  3. Workers’ Day (1st May).

National Day (1st October).

  1. Christmas Day
  2. Such day as the Minister may declare to be a public holiday in celebration of the Muslim festival of Idel Fitr.
  3. Such day as the Minister may declare to be a public holiday in celebration of the Muslim festival of Idel Kabir.
  4. Such day as the Minister may declare to be a public holiday in celebration of the birthday of the Prophet Muhammed (Idel Maulud).”

The question to be asked therefore is that : is there anything like 29th day of May as a  Democracy day within any provision of  the Act or schedule ?

It is respectfully submitted that no such date exists and same cannot be specifically read into the Act or Schedule but at best, it is to  be attributed to the inherent power and discretion granted to the President by virtue of Section 2(1) of the Public Holiday Act to keep a date as a Public Holiday, irrespective of the way it is tagged in so far as it is not inconsistent with the specific ones kept by the Act.

It is to be noted that it is a cardinal principle of statutory construction that the most elementary rule of interpretation is the Literal Rule of interpretation which postulates, according to the Supreme Court in the case of Dankwambo v. Abubakar (2016) All FWLR (pt.823) @ 1801 that :

 “where the words used in a statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute. If the words of the statute are precise and unambiguous, no more is required to expound them in their natural and ordinary sense. The words of the statutes alone in such circumstances best declare the intention of the law maker.” (emphasis mine).

See also the cases of A.G Abia State v. A.G Federation (2005) 12 NWLR (pt. 940)452; Ifezue v. Mbadugha(1984) All N.LR 256;(1984) LPELR-SC.68/1982, ABUBAKAR V. NASAMU(2012) All FWLR (PT. 630)1207 SC, ATTORNEY GENERAL OF NASARAWA V. ATTORNEY GENERAL PLATEAU STATE(2012) All FWLR(PT. 630) 1262 SC

A learned writer by name  Mr. Emeka Nwadioke, ESQ argued on this issue  that:

“Indeed, it is my considered view that a presidential proclamation is incapable of altering May 29 as a public holiday. The Public Holidays Act bars Mr. President from altering the holidays set out in the schedule to the Act, given the unambiguous wording of the enabling provision which enacts that any such holiday by the president must be ‘in addition to the days mentioned in the Schedule to this Act.’ The only option open to the president as of right is to declare June 12 as an additional public holiday.

I find the above submission intriguing and consequently befuddled because it leaves one with  more to desire because May 29th   itself is no where found in the Public Holiday Act and the interpretation laced on the words “in addition” in Section 2(1) of the Act is wholly inaccurate because:

  • May 29th is customarily kept by virtue of long usage and  appointed as a Public Holiday by the Federal Government of Nigeria since 1999 ,
  • The Public Holiday Act contains nothing like May 29th ,
  • The President has the power to appoint any day as a Public Holiday, whether   termed as a “Democracy day” or not,

The issue to my mind would have been different and the declaration accordingly marked as a usurpation of legislative function by the President, had it been one of those Public Holidays specifically listed in the Schedule was alterated by removing, changing and/ or striking out as a Public Holiday by the President.

Similarly, since the tenure of the Office of an elected President begins to run the moment he is sworn in on 29th day of May and ends on the successive 29th day of May after four(4) years, I hold the considered view that no Presidential declaration is capable of altering that date to 12th of June as regards swearing in because to so do would amount to elongating the four years term  prescribed by the Constitution with the addition of two weeks which to my view would be unconstitutional , which is not the case here.

The Supreme Court in the case of   MARWA & ORS. v. ADMIRAL MURTALA NYAKO & ORS  (2012) LPELR-SC.141/2011 (CON)  held through Per Onnoghen (JSC, now CJN) thus:

“It is settled law that the time fixed by the constitution for the doing of anything cannot be extended. It is immutable, fixed like the rock of Gibraltar. It cannot be extended, elongated, expanded, or stretched beyond what it states”

See also ANPP V. GONI (2012) LPELR-SC.1/2012 (Consolidated), NYAKO v. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR-41822(SC), PDP V. CPC(2011) LPELR-SC.272/2011 (CON).

Therefore, I hold that Section 2(1) of the Act  gives the President in person, the unilateral power of appointing a day as a Public Holiday “In addition to days mentioned in the Schedule to this Act….” without any corresponding amendment of the Public Holiday Act for such to be valid by the National Assembly.

For clarity of mind, the words “in addition” mean according to Merriam Webster dictionary:

The act or process of joining something to something else: the act or process of adding something.

It is my humble view that the insertion of the words “in addition” as used by the Legislature in Section 2(1) of the Act cannot be taken for granted or as a mere cosmetic surplusage  because the Legislatures are known to be mindful with words in an enactment and every word of theirs that has been doled out must be given operative effect and meaningful construction. See FAWEHINMI v. I.G.P.(2002) 7 NWLR (Pt.767) 606

  1. CONCLUSION

However, it is the conclusive submission of this writer that the following contentions are of no moment, outrightly unfounded and without basis, viz:

  • The Presidential declaration on June 12th as a Democracy day is invalid and illegal because an amendment has to be made by the National Assembly,
  • That the President can only add June 12th as a Public Holiday and not substitute May 29th for it.

With the above submissions, I am of the honest view that the President’s declaration of 12th of June to be henceforth kept as a Democracy Day and May 29th as a National Public Holiday is valid in Law.

BALOGUN SOFIYULLAHI writes from Faculty of Law, Ahmadu Bello University, Zaria., @balogunsofiyullahi@gmail.com or 07032676039

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