A Governor can Depose, but not Banish an Emir
TSubjugation of Traditional Authorities by the British
he unfolding events around the deposition of the Emir Kano, highlight the contradictions between traditional authority and State power. One derives its authority from law, while the authority of the other is traditional or religious. Prior to the creation of the modern State, the Emirs and traditional rulers controlled the spiritual and administrative organs of the State or territory. However, and with the advent of structured governance, the traditional institutions lost their pre- eminence and were indeed, in many respects, made subservient to State authority.
The evolution of State power evolved with the British colonialists, who subjugated the traditional authorities and domain to their control. This power also included authority to depose and banish an uncooperative traditional authority. Consequently, it was quite rampant during the colonial era for Emirs and Chiefs to be de-stooled, and for them to be sent to internal exile for security reasons, and a more compliant character installed in their place. It was assumed that, the incumbent traditional ruler did not need to be distracted in the discharge of their new roles and that, in any event, there cannot be two captains or rulers within a particular domain. Banishments were collaterals, to any successful deposition. There are widespread historical accounts where Chiefs, Emirs and Obas were banished or sent on internal exile, without regard to whether the ascendancy to the throne was hereditary or rotational among ruling houses. The Oba of Benin and Lagos were at various times, sent on exile for peace to reign within their domain. See the famous case of
ESHUGBAYI ELEKO v GOVERNMENT OF COLONIAL NIGERIA (1931) AC 662.
The modern Nigerian State inherited these vestiges of colonial rule, by subordinating the traditional authority to State authority using the instrumentality of laws and regulations. In effect, almost all States in Nigeria have laws regulating chiefdoms within their domain, and with these laws, the control of traditional institutions including the rulers is made complete, especially where any choice made by kingmakers will have to be ratified by the political authority of the State, either at the State or local government levels.
Under these laws, a traditional ruler could be deposed for variety of reasons, including disrespect to constituted authority or failure to be politically correct. These traditional rulers and institutions were now maintained from the public treasury as the source of revenue from the subjects had now become taxable at the control of the State authority, and so, in addition to political control, the State also had financial control over these traditional institutions. This new reality, greatly reduced the influence and powers of these institutions in their domains.
On account of the very significant reduction in the influence and standing of the traditional authorities, some of them have suggested that they should be given constitutional roles, which makes it more difficult for them to be subject to the whims of a vindictive political authority.
Our constitutional amendments so far has only acquiesced to the creation of house of chiefs without ceding any real authority to the traditional rulers, and it does not appear that any significant concessions will be made to the traditional rulers for reason of the fact that the envisaged roles are contradictory and will result in dysfunctional operations of State, because one is popularly elected while the other is hereditary and or rotational.
Kano
This really is the context of the issues currently at play in Kano, where the ousted Emir of Kano is accused of being disrespectful to the popularly elected government of Kano State.
While the government under the Chieftaincy laws of the respective States have the powers to depose a disagreeable traditional ruler, it does not possess the powers hitherto exercised by the colonial authorities, to send anyone on exile or to banish them to a different location.
Nigeria is a constitutional democracy where the Constitution is superior to any other law or enactment, and all institutions of State are commanded by the Constitution to respect and abide by its provisions. In this regard, the government of Kano erred when it purported to have banished and sent Lamido Sanusi to Nasarawa State, and declaring that he will not have a right to visit Kano or any other location of his choice, as his request to be flown to Lagos was denied.
This is a gross violation of the Constitution, and it is indeed, a throw back to the period and time when the colonial authorities exercised this kind of authority over conquered territories and its traditional authority. The deposed Emir is not a felon or fugitive, to warrant the restriction of his movement to a location that is not his choice. It is important to stress that, while the colonial authorities exercised these powers without any challenge to their authority, these kind of powers are not permissible under this dispensation.
The Governor is not a king or emperor, but is subject to the supreme law of the land.
Court Decisions
In many cases, the courts have had cause to intervene in these matters. The most notable, is the case of
ATTORNEY- GENERAL OF KEBBI STATE v ALHAJI AL MUSTAPHA JOKOLO & ORS 2013 LPELR 22349/ CA
over his deposition as Emir of Gwandu and subsequent banishment to Nasarawa State, where the court relied on several cases, particularly the decision in
STATE SECURITY SERVICES v OLISA AGBAKOBA (1993) 3 NWLR (PT 595) @314 and 373 Conclusion
to hold that,
The matter terminated at the Court of Appeal and the decision of the court reflects the state of our law, in that regard. The court of Appeal compared internal exile to slavery, where the person does not have control over his affairs and is subject to the direction and absolute control of the master, which is the security services and government.
The court further held that, Section 35 (1) and 41 of the 1999 Constitution guarantees personal liberty, freedom of movement and liberty to reside anywhere within Nigeria, and any attempt to abridge this right except in the particular instances referred to in the Constitution, amounts to a violation of the Constitution and had no hesitation that the action of the government in banishing Alhaji Jokolo was unconstitutional and under Articles 4, 5 and 6 of the African Charter on Peoples and Human Rights, which has been domesticated in Nigeria.
It further stated that, banishment amounted in practical terms to degradation of his dignity, liberty and legal status, especially as he has not been convicted of any offence. The case is actually on all fours with the present case of Lamido Sanusi, and the courts will have no hesitations whatsoever in holding that the banishment to a location within Nigeria that is not his choice, is an affront to the express provisions of Sections 35 and 41 of the 1999 Constitution, and the banishment does not fall under any of the exceptions permitted by the Constitution.
It has quite often been argued that, security and public order is the reason why deposed rulers are banished, but it is dangerous to subject the clear and unambiguous provisions of the Constitution, to a definition of security and public order by a Government who is an interested party in the matter. In any circumstance, the Police should be able to deal with any matter of public disorder, without recourse to banishment.
It is obvious that the Kano State Government did not have the powers it purported to exercise, to banish a Nigerian citizen not under any criminal indictment to Nasarawa State. Indeed, the Government has denied that it sent the deposed Emir to internal exile, and if they had the benefit of legal advice on the matter, they should have allowed the Emir to proceed to a location of his choice within Nigeria, and allowed him some dignity. De-stooling of a traditional ruler is not necessarily a crime that would warrant internal exercise as punishment.
In the absence of constitutional provisions which protected rights, the colonial governments could depose and banish for expedient purposes, but under the prevailing system, such powers are circumscribed by the express wordings of the grundnorm, and the courts have clearly stated that banishment is unconstitutional, if it does not fall under the exceptions contained in the Constitution.
JOKOLO
Conflicts between traditional and State institutions will always be inevitable, because the two institutions derive their powers and authority from extreme sources . However, the statutory right to depose, does not extend to powers to impose punishment of torture and banishment, and if it does, it will clearly be unconstitutional on the authority of the case.
In the final analysis, the solution may lie in encrypting a constitutional role for monarchs and religious leaders, that guarantees that they will not be removed from office for reasons as flimsy as disrespect or outspokenness, and sent outside their domain for the rest of their lives. This may really be far fetched in a democracy where power derives from the people through elections, and also because it will almost be impossible to insulate traditional rulers and institutions from politics.
JOKOLO