Why the Kano Emirs Law is Invalid
The controversy generated by the purported 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 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 that suit. 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 recognises such laws only to the extent to which they are consistent with it (vide Section 315). Of all its12-odd Sections, Section 11(1)(a) of the law, 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 v 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. See also Article VII of the African Charter on Human and Peoples Rights. There is no reason why the same fate, should not befall this provision of the Law under review.
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 –
(a)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 (b)contains no provision making the determination of the administering authority final and conclusive”. In BAKARE v L.S.C.S.C. (1992) 10 S.C.N.J. 173, the Supreme Court held that, both stipulations are in the alternative and are 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 2, 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 2 is simply the definition clause, while 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. The Schedule to the Law lists the Local Governments comprised in each Emirate as follows:
(i) Kano:- Tarauni, Dala, Nassarawa, Fagge, Gwale, Kumbotso, Ungogo and Kano Municipal;
(ii) Bichi Emirate:- Bagwai, Tsanyawa, Kunchi, Makoda, Bichi, Dambatta, Dawakin Tofa, Minjibir and Tofa;
(iii) Rano Emirate:- Bunkure, Kibiya, Takai, Sumaila, Kura, Bebeji and Garun Mallam;
(iv) Gaya Emirate:- Ajingi, Albasu, Wudil, Garko, Gaya, Warawa, Gezawa, Gabasawa and Dawakin Kudu;
(v) Karaye Emirate:- Rogo, Gwarzo, Kabo, Karaye, Rimin Gado, Madobi, Kiru and Shanono.
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 16 other members, some of whom are ex-officio. Another controversial innovation made in Section 4(2) of the Law, as amended, is the provision 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 five 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 valid, than the absence of any obligation on the part of the Government, to consult those directly affected by the Law. Foremost in this regard, 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 eight 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 dignifyingly, Kanawa) in the streets, were 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, this violates the principle of natural justice. See ADIGUN v 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 v ABIOLA (1995) SCNJ 283.
The foregoing, is amplified by the ouster clause in Section 11(1)(a) of the Law. The effect of this provision is that, any decision of the Governor under the law is final, and cannot be challenged in a court of law. It is obvious that, this blatantly violates the right of fair hearing of both an 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 v DUKE (2007) 16 NWLR pt. 1059 pg. 22 at 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.
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 v 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, as amended, 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 fundamentally defective, and ought to be jettisoned and replaced with a new one which respects civil liberties, particularly the rights of fair hearing and access to the courts.
“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”