The Mandatory Use of the National Identification Number Regulation 2017: How Constitutional?

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In this article, Okhuofu Oregbemhe examines the constitutionality of the mandatory use of the national identification number, concluding that in certain circumstances, the use is unconstitutional, like in the case of items for which only the State Houses of Assembly have the exclusive competence to legislate upon, for instance, for items like adoption of children

The National Identity Management Commission (“the Commission”), was established by Section 1(1) of the National Identity Management Commission Act (“the Act”). The Commission is a body corporate with perpetual succession and a common seal and may sue and be sued. The operation of the Commission is run by a governing board, with representatives from various offices, agencies and commissions.

By virtue of Section 5 of the Act, the Commission is charged with the following statutory functions, among others, to:

(a) create, manage, maintain and operate the National Identity Database established under section 14 of the Act, including the harmonisation and integration of existing identification databases in government agencies and integrating them into the National Identity Database;

(b) carry out the registration of citizens of Nigeria into the National Identity Database;

(c) issue a General Multi-purpose Identity Card to any person registered pursuant to paragraphs (b) and (c) of this section;

The Act empowers the Commission to make regulations for the effective operation of the Act and the due administration thereof. In the exercise of these powers, the Commission has recently issued the “Mandatory Use of the National Identity Number Regulations, 2017” (“the Regulations”). This regulation has such a broad and extensive reach, that in our view, its scope exceeds the powers of the Commission to legislate upon. We examine a few of these provisions, and explain why we hold the view that the Commission has exceeded its authority under its enabling law, and under the 1999 Constitution.

The Constitutionality of Some Provisions of the Regulations

The Constitution is supreme and its provisions have binding force on all authorities and persons throughout the Federal Republic of Nigeria. The legislative power of the Federal Republic of Nigeria is vested in the National Assembly which consists of the Senate and a House of Representatives. The power of the National Assembly to enact laws for the peace, order and good government of the Federation, is, with respect, to the matters listed in the Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution and the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to the Constitution.

The legislative power of the National Assembly to enact laws for the peace, order, and good government of the Federation with respect to the matters contained in the Exclusive Legislative List, is to the exclusion of the State Houses of Assembly. The Na-

“ANY REGULATIONS PURPORTEDLY ISSUED BY THE COMMISSION, REQUIRING THE MANDATORY USE OF THE NATIONAL IDENTIFICATION NUMBER IN THE FILING OF, AND REGISTRATION OF CRIMINAL AND CIVIL ACTIONS IN THE STATE HIGH COURTS OR ANY COURTS ESTABLISHED BY THE LAW OF A STATE HOUSE OF ASSEMBLY, IS ULTRA VIRES THE COMMISSION AND THEREFORE, NULL AND VOID”

THE MANDATORY USE OF THE NATIONAL IDENTIFICATION NUMBER REGULATION 2017: HOW CONSTITUTIONAL?

tional Assembly is also empowered to enact laws with respect to any matter in the Concurrent Legislative List, and if any laws enacted by a State House of Assembly in respect of such matters is inconsistent with any law validly enacted by the National Assembly, the law made by the National Assembly shall prevail, and the State law shall to the extent of its inconsistency be void.

The Exclusive Legislative List has 68 items over which the National Assembly has power to make laws for the peace, order and good government of the Federation or any part thereof, to the exclusion of the State Houses of Assembly. The Concurrent Legislative List contains 30 items for which both the National Assembly and the House of Assembly of a State have concurrent legislative powers, to make laws applicable within the Federation of Nigeria and the respective States. Any items not listed in the Exclusive and Concurrent Legislative Lists are within the legislative competence of the State Houses of Assembly.

The National Assembly, lacks the constitutional competence to make laws outside its legislative domain, which are by implication, residual matters reserved for the State Houses of Assembly. The National Assembly cannot, in the exercise of its powers to enact some specific laws, take the liberty to confer power or authority on the Federal Government or any of its agencies to engage in matters that ordinarily fall within the responsibility of the State Houses of Assembly, a State Government or its agencies. This would be to allow the National Assembly, the Federal Government or its agencies, to encroach upon the constitutional authority conferred on the State Houses of Assemblies under their residual legislative power. See the case of AG Federation v AG Lagos State 2013 16 NWLR Part 1380 Page 249 at 303 paras C-D per Galadima JSC.

We are of the opinion that, some of the items listed in the Regulations for which mandatory use of the national identification number is required, are items over which the State Houses of Assembly have exclusive competence to legislate on, to the exclusion of the National Assembly, the Commission or any other agency of the Federal Government of Nigeria. For example, hospitality services, save for tourist traffic, are within the exclusive legislative competence of the State Houses of Assembly, and not for the National Assembly to make laws, neither does the Commission have the constitutional authority to make regulations for the registration, provision and use of hospitality services in Nigeria.

Adoption of Children The Regulation requires a mandatory use of the national identification number, in an application for the adoption of an infant, child or person under applicable laws. Adoption of an infant or child is neither listed in the Exclusive nor Concurrent Legislative Lists of the 1999 Constitution; thus, it remains a residual matter within the exclusive legislative competence of the State Houses of Assembly. The National Assembly or the Commission, cannot legislate or make Regulations on the practice and procedure of adoption in Nigeria. It is the National Assembly and the Commission, to make provisions for the mandatory use of the national identification number for applications with respect to adoption of an infant or child under the relevant State enactments. Federal Courts By virtue of the Regulation, filing and registration of criminal and civil actions in court or other arbitration processes, now require the mandatory use of the national identification number. The National Assembly, has the legislative competence to legislate for the practice and procedure of the federal courts, or such other courts and tribunals established by an Act of the National Assembly or for which the National Assembly has power to make laws. Thus, the National Assembly, would, in the circumstances, have legislative competence to enact laws regulating the practice and procedure of the Federal High Court, National Industrial Court of Nigeria, High Court of the Federal Capital Territory, Abuja, National or Federal Tribunals, Court of Appeal, and Supreme Court.

State Courts However, the National Assembly does not have the constitutional competence, to legislate for the practice and procedure of State High Courts or such other courts or tribunals as established by a State House of Assembly. In the same vein, the Commission cannot make Regulations requiring the mandatory use of the national identification number, in courts established by the law of a State House of Assembly. The Regulation requiring the mandatory use of the national identification number in filing and registration of criminal and civil actions in States Courts, is not just inconsistent with the 1999 Constitution, but to the extent that it makes mandatory provisions concerning the practice and procedure of other courts established by the law of a State House of Assembly, it is null and void.

Presently, no law of any State House of Assembly or any State High Court Civil Procedure Rules, provides for the mandatory use of the national identification number in filing and registration of criminal and civil actions, therefore, litigants and practitioners before those courts, cannot in the circumstances resort to or be compelled to affix on their court processes, the national identification number as required by the Regulations.

Since the National Assembly cannot legislate for the practice and procedure of the High Court of a State (Fashakin Foods (Nig) Ltd v Shosanya 2006 10 NWLR Part 987 Page 126 at 145), the Commission cannot make Regulations for the practice and procedure of those courts, by requiring a mandatory use of the national identification number in processes filed and registered in those courts. Any Regulations purportedly issued by the Commission, requiring the mandatory use of the national identification number in the filing of, and registration of criminal and civil actions in the State High Courts or any courts established by the law of a State House of Assembly, is ultra vires the Commission and therefore, null and void.

Arbitration Furthermore, the Regulation requires the mandatory use of the national identification number, in arbitration processes in Nigeria. Arbitration is a private dispute resolution mechanism, and is regulated by the Arbitration and Conciliation Act 2004 and the Lagos State Arbitration Law 2009. Arbitration being a private dispute resolution mechanism, party autonomy is vital. In the view of this writer, if parties decide to arbitrate under the Arbitration and Conciliation Act, being a federal enactment, then, the mandatory use of the national identification numbers may become mandatory, imperative and binding. However, if parties choose to arbitrate their dispute under the Lagos State Arbitration Law 2009, which is a State law, the use of the national identification number becomes optional, and not mandatory, binding or compulsory for the parties.

Probate The Regulation requires the mandatory use of the national identification number with respect to filing, processing and obtaining of probate documents. Filing, processing and obtaining of probate documents, is within the exclusive legislative competence of the State Houses of Assemblies, and not the National Assembly. Filing, processing and obtaining of probate is neither listed in the Exclusive nor Concurrent Legislative Lists of the 1999 Constitution; therefore, it is a residual matter for the State Houses of Assembly to legislate upon.

The pedestal upon which the Regulation is anchored, is sections 27 and 31 of the Act. The National Assembly or the Commission, does not have constitutional or statutory competence to enact laws or regulations with respect to filing, processing and obtaining of probate documents in the States. Having regard to the fact that filing, processing and obtaining of probate, generally, is a residual matter, the requirement for a mandatory use of the national identification number in filing, processing and obtaining documents in the State High Court Probate Registry, becomes unconstitutional and beyond the powers of the Commission.

The constitutionality of any enactment by the National Assembly or any government agencies, must be measured against the backdrop of sections 4(6) and (7) of the 1999 Constitution. In light of the above, the power of the National Assembly or any government agencies to legislate on a given matter, must be traceable to the 1999 Constitution, either the Exclusive or Concurrent Legislative Lists. If the National Assembly or any government agencies legislates on any matter not within its legislative competence or outside the ambit of the said constitutional provisions, such enactment is invalid and shall have no effect at law.

Conclusion In conclusion, we contend that some provisions of the Regulations reviewed above, to the extent that they seek to regulate areas within the exclusive legislative competence of the State Houses of Assembly, are null and void.

Okhuofu Benedict Oregbemhe, Senior Associate, SPA Ajibade & Co., Lagos

“WE ARE OF THE OPINION THAT, SOME OF THE ITEMS LISTED IN THE REGULATIONS FOR WHICH MANDATORY USE OF THE NATIONAL IDENTIFICATION NUMBER IS REQUIRED, ARE ITEMS OVER WHICH THE STATE HOUSES OF ASSEMBLY HAVE EXCLUSIVE COMPETENCE TO LEGISLATE ON, TO THE EXCLUSION OF THE NATIONAL ASSEMBLY, THE COMMISSION OR ANY OTHER AGENCY OF THE FEDERAL GOVERNMENT OF NIGERIA”