Introduction
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.
The Amendment
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.
Conclusion
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
Subscribe ToNairalaw News!
Read more why-the-kano-emirs-law-is-invalid-by-abubakar-d-sani-esq/