What is Wrong with the National Identification Number Regulations?

Alot, at least if the views expressed by Mr. Okhuofu Oregbemhe in the ThisdayLawyer of the penultimate week, are anything to go by. In it, he identified at least five distinct provisions of the Regulations which prescribe mandatory use of the National Identification Number (“NIN”) for filing processes in State and Federal Courts, as well as documentation for the adoption of children, probate and arbitration. He premised his opinion on the alleged inclusion of the subject-matter of those Regulations in either the Exclusive or Residual Lists of the Constitution, in respect of which only the National or State Houses of Assembly, respectively, are competent to legislate upon.

Accordingly, his argument goes, even an agency like the National Identity Management Commission, the author of the allegedly ‘offensive’ Regulations - which was established by the National Assembly - is incompetent to prescribe the use of the NIN for filing processes in Federal Courts. Really. This piece challenges the validity of that notion and suggests that, curiously, the entire Regulations, and not just aspects thereof, might be invalid. But, first . . .

Can the National Assembly Regulate the Identification of Nigerians?

There is no doubt, that the answer is an emphatic ‘Yes’. This is because Items 9 and 28 of the Exclusive Legislative List of the 1999 Constitution, expressly include “citizenship” and “identification” within the exclusive purview of the Assembly. By virtue of Item 68 of the same List, this power extends to anything that is “incidental or supplementary” to any other matter contained in the Exclusive List. The jurisdiction, powers, practice and procedure of courts of law, as well as offences, are regarded as incidental or supplementary to the powers conferred on the National Assembly by Items 1 – 67 of the said List: Paragraphs 2(a) & (b) of Part III of the 2nd Schedule to the Constitution.

In his book Federalism in Nigeria Under the Presidential Constitution, Professor Ben Nwabueze, SAN, opined that: “An incidental matter is one which is concomitant or attendant upon another, something which is an accompaniment or adjunct of another”. It is against this backdrop, that I humbly submit that any appraisal of the validity the NIN Regulations ought to be based.

Can the National Assembly Delegate Regulation of Identification?

I believe that this is the real question posed, albeit indirectly, in Mr. Oregbemhe’s piece. This is because, as shown above, the power of the Assembly to regulate identification of persons is a given, and cannot reasonably be open to conjecture. The only question is whether the Assembly should exercise that power directly, and not through an agency like the National Identity Management Commission. The straight forward answer to this, is “No”.

This is because in ATT- GEN OF BENDEL v ATT-GEN OF THE FED (1982) 3 NCLR pg. 1@ 132 the apex court held that delegation by the Assembly of its essential law-making function, is precluded by the Constitution. Even though the court made the pronouncement in relation to the Assembly’s powers to pass money bills or the budget, I posit that the regulation of identification or citizenship in terms of the NIN Regulations, is not an essential law-making function of the National Assembly, and is therefore, delegable.

To that extent, the Assembly acted within its constitutional remit, by empowering the National Identity Management Commission (NIMC) through Section 31 of the NIMC Act to make Regulations for the effective implementation of the Act and its due operation. Accordingly, the NIMC made the NIN Regulations to prescribe mandatory use of the NIN in a wide range of circumstances, including the following:

i. registration for and provision and use of hospitality services including health or medical services;

ii. application for the adoption of an infant, child or person

iii. purchase and registration of aircrafts, ships, boats. motor vehicles and motor cycles;

iv. purchase of travel tickets or tokens for air, rail, road and water transportation;

v. boarding of aircrafts, trains, commercial vehicles, ships and boats; vi.purchase of insurance policies ; vii. acquisition,sale,transferortransmissio nofshares

viii. registration and licensing of cyber cafe operators;

ix. recruitments for temporary and permanent employment;

x. enrolment or registration for internal and external examinations with educational and examination boards;

xi. enrolment into primary, secondary and tertiary schools

xii. registrationandmembershipofprofessionalbodies:

xiii. eligibility and documentation for provision of welfare services by government agencies and other non-governmental institutions;

xiv. registration of companies, sole proprietorships, partnerships and nonprofit organisations and other post-incorporation documentation with the Corporate Affairs Commission :

xv. documentationofarrestedandconvictedpersons;

xvi. filing and registration of criminal and civil actions in courts or other arbitration processes:

xvii. purchase and registration of telephone SIM Cards xviii. issuance of birth certificates: xix. registration of voters : xx. tax identification; xxi. operating bank accounts; xxii.executing contract or business agreement including tenancy agreements:

xxiii.obtaining and processing of probate documents;

xxiv. transactions involving the acquisition, use or transfer of land or landed properties and the transfer of any interest, tangible or intangible;

Even though parts of the Regulations (such as those which apply by default to State Courts) seem to fall outside the Exclusive List of the Constitution, and are, therefore, within the legislative competence of States, I submit that the subject-matter of those Regulations can reasonably be argued as being incidental or supplementary to the subject of identification and citizenship within the contemplation of Items 9, 28 and 68 of the Exclusive List of the Constitution. This argument is stronger still, in respect of those Regulations whose subject matter is within the Exclusive List. In other words, so long as the National Assembly can itself make those Regulations, there is no conceivable statutory or constitutional reason, why it cannot delegate that power to the NIMC as it has clearly done.

More substantively, I believe that the absence of any discernible differentiation in the Regulations between State and Federal matters, in terms of their scope or application, simply means that, as Mr. Oregbemhe correctly pointed out, they apply equally in both directions. In such situations, the ut res magis valeat quam pereat rule of statutory interpretation is applicable. It means that where the choice is between two rival constructions, that which would produce unreasonable and inconvenient results should be avoided. See BRAITHWAITE v GRASSROOT DEMOCRATIC MOVEMENT (1998) 7NWLR pt. 557 pg. 307@ 327. I submit that, given the sensitive purpose of the Regulations, i.e., national security, data-gathering and planning, the choice is an obvious one.

So, what, if anything, is really wrong with the Regulations?

Beyond any questions about the competence of either the National Assembly or the NIMC to enact the NIN Regulations, I believe that the real issue is whether the Regulations, as made, are valid. To answer this question, it is essential to review the composition of the Commission under the NIMC Act. By virtue of Section 2(1) of the Act, the Commission shall comprise a Board consisting of a Chairman, a Director-General, fifteen (15) ex-officio members and three other persons knowledgeable in information communication technology or identity management.

As previously stated, the Act empowers the Commission to make Regulations. A regulation is a subsidiary instrument: Section 37(1) of the Interpretation Act. By virtue of Section 27(2) of the Interpretation Act, “where a body established by an enactment comprises three or more persons and is empowered to make subsidiary instruments, any such instrument may be executed under the hand of any two of the members thereof as may be authorised by such body generally for that purpose or specially on any particular occasion”.

It is clear that this provision was observed in the breach in this instance, as the NIN Regulations were executed by only one member of its nineteenstrong Board, its Director-General, Mr. Aliyu Azeez. I submit that, this factor alone might conceivably invalidate the Regulations.

Conclusion For obvious reasons, a comprehensive, accurate and up-to-date data base of the identity of the citizens of a country, is absolutely indispensable. This is the trend globally, and Nigeria cannot be an exception. Indeed, in many ways, Nigeria has come late to the party, as she lags far behind her neighbours in the sub-region in this regard. No matter, better late than never.

An appropriate legal framework, is a pre-eminent sine qua non for any sustainable Scheme for identifying a nation’s citizens. Needless to say, such a Scheme should be fool-proof, if it is to cope with trans-national crimes which recognise no borders and whose perpetrators often have no or multiple identities. Ready examples in this regard include terrorism, arms smuggling and human/drug trafficking.

No matter how sound the technical architecture of such Schemes might be, however, they are only as good as their legal underpinnings - or lack thereof - as otherwise, they would fail the most critical test of all, that of their legal or constitutional validity.

“FOR OBVIOUS REASONS, A COMPREHENSIVE, ACCURATE AND UP-TODATE DATA BASE OF THE IDENTITY OF THE CITIZENS OF A COUNTRY, IS ABSOLUTELY INDISPENSABLE. THIS IS THE TREND GLOBALLY, AND NIGERIA CANNOT BE AN EXCEPTION”