Constitutionality of the dethronement and banishment of Sanusi II
Constitutionality of the dethronement and banishment of Sanusi II
…vis-à-vis public officer’s protection law
By Christiannah Akindunbi & Kayode Olabanji
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Recently, news filtered in of the dethronement and banishment of the former Emir of Kano by the Governor of Kano State.
It is however necessary to consider the constitutionality of the act of the Kano state Governor in the light of the 1999 Constitution and other relevant laws.
- Can a Governor Dethrone and Banish a Traditional Ruler
The Governor of a State is vested with the executive powers of the State and his powers are derived from the constitution itself.
Lets take cursory look at section 4(7) and 5(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Section 4(7) provides that:
(7) The House of Assembly of a State shall have power to make laws for the peace, order and good governance of the State or any part thereof with respect to the following matters, that is to say:- (a) any matter not included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution; (b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and (c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this constitution.
Section 5(2) provides that:
(2) Subject to the provisions of this Constitution, the executive powers of a State:- (a) shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor or Commissioners of the Government of that State or officers in the State; and (b) shall extend to the execution and maintenance of this constitution, all laws made by the House of Assembly of that State and to all matters with respect to which the House of Assembly has for the time being power to make laws. (3) The executive powers vested in a State under subsection (2) of this section, shall be exercised as not to:- (a) Impede or prejudice the exercise of the executive powers of the Federation; (b) Endanger any assets or investment of the Government of the Federation in a State; or (c) Endanger the continuation of a Federal Government in Nigeria.
Kano State House of Assembly recently passed into law, the Emirate Law 2019 after the previous one was amended, this 2019 Law empowers the Governor of the State to discipline, remove and banish an erring traditional ruler.
So it is not in contention that the State Governor can dethrone the emir in furtherance of any Law validly made by the State house of Assembly.
- Whether or not the due process of Law was followed:
In reversing an unlawful conduct, where such law is validly made the.next thing to look at is wherther or not such body followed the right process of law.
Two fundamental principles of law.
The fastest way to nullifiy any law is if such act violates these two principles of law:
a.)You can’t be a judge in your own case:
It is a trite position of Law that nobody should be a judge in his own case. In law you can’t hold the yam and the knife. In relation to the matter at hand you can’t be the victim and the judge. The Kano State Governor said the Erstwhile Emir was insubordinate to him and that was why he was removed. The Governor was the Victim and also the Judge.
b.) Fair hearing:
Before anybody can be punished for any offense he must have been afforded the opportunity to be heard. The opportunity for him to present his position and be heard without bias.
These two fundamental principles of Law were violated in the removal of the Emir.
The argument of the Kano State Government is that the Emir disrespected lawful instructions from the office of the Governor and this violated part 3 of section 13 (a) – (e) of the Kano State Emirate Law 2019.
It is good to note that the Emir was invited by the anti-corruption committee of the State House of Assembly. This invite, in itself does not translate to the necessary invite needed to validate the action of the Executive Council decision to remove the Emir.
The reason been that the ground upon which the emir was removed was not that of corruption or embezzlement of funds as investigate by the legislative committee.
The erstwhile Emir was not given the opportunity to defend himself neither was he given fair hearing which is against the two fundamental foundation of justice.
3.) Whether the Alleged Act of Banishment is constitutional
Section 35 (1) of the said Constitution provides that:
Every citizen of Nigeria is “entitled to his personal liberty and no person shall be deprived of such liberty” except in the circumstances set out in subsections (a) to (f) thereof.
Section 40 of the same Constitution provides that:
Every person is entitled to assemble freely and associate with other persons”. On the issue at hand.
Section 41(1) of the Constitution is germane and it provides thus:
Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom. (2) Nothing in subsection (1) of this section shall invalidate any law that is reasonably justifiable in a democratic society – (a) imposing restrictions on the residence or movement of any person who has committed or is reasonable suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or (b) providing for the removal of any person from Nigeria to any other country to – (i) be tried outside Nigeria for any criminal offence, or (i ) undergo imprisonment outside Nigeria in execution of the sentence of a court of law in respect of a criminal offence of which he has been found guilty: Provided that there is reciprocal agreement between Nigerian and such other country in relation to such matter.
It becomes quickly clear, from the above section that the banishment and deportation from Kano State by the Governor of Kano State on or about the 9th of March, 2020 of Alhaji Sanusi to Nasarawa State as reported, was both unconstitutional, and illegal.
Although, some persons in certain quarters has put forward the position that, so far the Kano State Emirate Laws provide for Banishment, then any act of banishment on the Emir is Legal.
Putting such provision against the position of the Constitution makes such law void at best, in accordance with section 1(3) of the 1999 Constitution.
I will not bother to belabour myself self on the view that the Law on Banishment how ever subsisting is both Archaic and unconstitutional.
4.) Relevant Public Officers Protection Law and the Limitation of time
Who is a public officer:
Section 318(1) of the 1999 Constitution :
Public service of a state include
A member of any commission or Authority established by this Constitution or any Law validly enacted by the state house of Assembly.
In the case of Fajimolu v. Unilorin(2007) 2 NWLR (part 1017) 74 at 78.
A public officer includes both Natural and Artificial persons. See Aniyom v. A.G Cross River State(2007) WRN 108 at 116 where the court held that the word public officer is synonymous with public departments or bodies charged with duties of public nature.
This makes the occupant of the stool of the Governor as a Public officer.
The Governor been a Public officer brings him within the main of the Public Officer protection Laws. This automatically protects the Governor in relation to the act done in furtherance of a law.
Any action or prosecution of such public officer shall not lie or be instituted unless it is done within 3 months or such other period as stipulated by the section 2 public officer protection law of kano. The import is that if Sanusi was to sue for his right, he must do so within the time frame allowed by the public officers protection law of Kano state.
But a quick perusal of the Fundamental Right Enforcement Procedure Rules 2009, ORDER III – LIMITATION OF ACTION,, provides that:
An Application for the enforcement of Fundamental Right shall not be affected by any limitation Statute whatsoever.
So in this circumstance the right of Sanusi to sue in Court will not be encumbered by the provision of the Statute of Limitation Law of Kano State.
Opatola Victor Esq. is an Abuja based Legal Practitioner