The controversy over the amendment to the Kano State Emirs (Appointment and Deposition) Law 1984 appears to have focused more on its motives than its substance. Before proceeding further, however, a word of caution: the alleged non-compliance of the amendment with the age-old tradition of a single Emir appointed on the recommendation of kingmakers as well as the rules of the State House of Assembly is presently the subject of litigation at the Kano High Court. Accordingly, it would be inappropriate to comment on the merits or otherwise of those suits. This intervention will, therefore, strictly be limited to other reasons which, in my view, make the validity of the law suspect. I intend to demonstrate this presently, starting with . . .
The Principal Law
This legislation was enacted as a military edict in 1984. The 1999 Constitution recognizes such laws only to the extent to which they are consistent with it (vide Section 315). Of the 12-odd clauses of the Emirs Law, Section 11(1)(a) is particularly problematic. It provides that:
“Notwithstanding the provisions of any other law to the contrary, no court shall have jurisdiction to entertain any civil cause or matter instituted for the determination of any question relating to the selection, appointment, installation, deposition or abdication, of an Emir”.
This ouster clause obviously flies in the face of Section 272(1) of the 1999 Constitution which provides, inter alia that, “the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue”.
To the extent that the Emirs Law is a State law, the Kano State High Court ordinarily ought to have jurisdiction to entertain any civil action arising from or relating to anything done or purported to have been done pursuant to it. Alas, the said ouster clause precludes such an inquiry. Is it valid? That is the question. In LEMBOYE vs. OGUNSIJI (1990) 6 NWLR pt. 155 pg. 210 @ 225 the Court of Appeal struck down a similar provision in Section 47 of the Land Use Act which purported to oust the jurisdiction of the court to inquire into any question concerning the amount or adequacy of compensation payable under the Act. There is no reason why the same fate should not befall this provision of the Law.
Beyond this, however, I believe that the entire law suffers from a more profound and fundamental defect in the sense that it violates the right of fair hearing under Section 36(2) of the 1999 Constitution. This clause provides, inter alia;
“A law shall not be invalidated by reason only that it confers an any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person of such law –
- provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person;and
- contains no provision making the determination of the administering authority final and conclusive”.
In BAKARE vs. L.S.C.S.C. (1992) 10 S.C.N.J. 173, the Supreme Court held that identical provisions in the 1979 Constitutions were in the alternative and not cumulative. In relation to the law under review, I submit that none of its clauses meets the requirements of this constitutional provision. I believe that this is particularly the case with Sections 3 and 4 of the Law, which were the subject of the amendment effected by the Kano State House of Assembly on the 8th day of May, 2019. We shall presently review them.
Section 3 declares, inter alia, the area of authority of the Council of Chiefs and confers it with legal personality. The most significant and controversial innovations are the provisions of Section 3(3) & (4) which establish five separate Emirates for the State where hitherto there was only one. They are Kano, Bichi, Rano, Gaya and Karaye. Section 4 of the amended law sets out the composition of the Council of Chiefs, which, apart from the Emirs themselves, includes the Chairmen of all the Local Governments in the State and sixteen (16) other members, some of whom are ex-officio.
Another controversial innovation made by Section 4(2) of the Law, as amended, which provides for a rotational chairmanship of the Council “who, shall serve for a period of two (2) years, sequence of which (sic) is to be determined by the Governor”. The law is silent on which of the Council members is eligible to be its Chairman. Is it restricted to only the five Emirs, or is it open to all its 21-odd members? This appears to be a lacuna or omission, because it is inconceivable that any of the “common” members of the Council will preside over their Royal Highnesses in any meetings of the Council.
Critique of the Law
The amended law may legitimately be questioned on a number of fronts. None of them is more compelling than the absence of any obligation on the part of the Government to consult those directly affected by the Law. Foremost in this regard (apart from the kingmakers), is the erstwhile sole Emir, Muhammadu Sanusi II, whose hitherto exclusive dominion over the entire State (all 44 Local Governments thereof) has now been whittled down to just 8 Local Governments. To make matters worse, His Highness must now endure the indignity of sharing the Chairmanship of the Council with people who, hitherto, were his subjects. However, this is not all about Emir Sanusi, as even the ordinary talakawa (or more correctly, Kanawa) in the streets was not consulted (there was no public hearing) prior to the creation of the new Emirates. Admittedly, this was the position under the principal law and the amendment merely maintains the status quo.
The absolute prerogative of the State Governor over the appointment of an Emir is reiterated in Section 4(4) of the law, as amended, which maintains that “all selections by the Kingmakers in the respected (sic) Emirates are subject to” his approval. The same, presumably, applies to the deposition of an Emir: the Law denies his subjects a say in the process. I believe that not only does this violate the provisions of Section 36(2) of the Constitution, it breaches the principle of natural justice. See ADIGUN vs. ATT-GEN. OF OYO STATE (1987) 1 NWLR pt. 53 pg. 678 where the Supreme Court held that where a person’s legal right and/or obligations are called in question, he should be accorded full opportunity of being heard before any adverse decision is taken in relation to those rights or obligations. See also FRN vs. ABIOLA (1995) SCNJ 283.
The foregoing is amplified by the said ouster clause in Section 11(1)(a) of the Law. The practical effect of this provision is simply that any decision made by the Governor under the law (appointment or deposition of an Emir) is final and cannot be challenged in a court of law. It is obvious that this a blatant violation of the right of fair hearing of both the affected Emir in any given case, and his subjects at large. As previously stated, this right is not merely a common law principle or based on natural justice; it is codified in Section 36(2) of the 1999 Constitution. In GLOBAL EXCELLENCE vs. DUKE (2007) 16 NWLR pt. 1059 pg. 22 @ 48 the Supreme Court held that access to court is a constitutional right which can only be taken away by a provision in the Constitution.
Finally, yet another flaw in the law is the inclusion of Local Government Chairmen in the membership of both the Council of Chiefs at the State level and the Emirate Council in each of the five Emirates vide Sections 3(1), 4(1)(v)(d) and 4(5)(i)(b), respectively, of the Law as amended. In ATT-GEN. OF BENDEL STATE vs. ATT-GEN. OF THE FED. (1983) NSCC 181 @ 201, the Supreme Court held that the National Assembly cannot unilaterally confer functions or impose duties on a State functionary. A fortiori, I submit that a State House of Assembly cannot unilaterally confer a function on a local government functionary, in this case, its Chairman.
The flaws in the Kano State Chiefs (Appointment and Deposition) Law, transcend the perceived animosity between Governor Abdullahi Ganduje and HRH Emir Sanusi, which supposedly motivated its recent amendment. I believe that, for the foregoing reasons, the law is incurably defective and ought to be jettisoned and replaced with a new one which respects civil liberties, particularly the rights of fair hearing (consultation of relevant stakeholders) and access to the courts.
Abubakar D. Sani, Esq. writes from Kano
16th May, 2019
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