Nigerian Constitution

By Aliyu Zangina

The people of Kano State woke up to the news of the resignation of the Commander-General of the Kano State Hisbah Board (Hisbah). This came after criticisms directed at some of the activities of the Hisbah Corps by His Excellency, AbbaKabirYusuf, the governor of the state.

The Hisbah Board is a creation of the Kano State Hisbah Law 2003. Its primary responsibility is to advise on and enforce religious morality within the state. Despite this mandate, the corps has been criticized for violating moral codes and secular laws of the land by making illegal arrests, which are a damning affront to human dignity. It is on this premise that I seek to explore law and morality vis-à-vis the arrest in controversy.

THE INTERSECTION BETWEEEN LAW AND MORALITY

Arguments on the relationship between law and morality in the jurisprudential sense have lasted for ages and still rage on. The controversy surrounding Hisbah brings it to the fore.

Laws are loosely defined as enactments by a state, with binding and coercive force on individuals and institutions throughout the state.

While morality can be loosely defined as a proper behaviour in differentiation of what is right and wrong.

The major difference between them is while a breach of law attracts sanction, A breach of morality can only attract moral reprehension. The long age principle of law is that law and morality are poles apart. However, in the celebrated case of R v. Dudley & Stephens (1884)14 QDB 273 DC it was states that

“Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet absolute divorce of law from morality would be of fatal consequence.”

In practice, morality complements the law, as many enactments were propelled by the moral demands of the people. For example, laws prohibiting theft and murder are rooted in the moral consciousness of the fact that taking other people’s property or life is morally wrong. Many laws embody moral principles within them, protecting and guaranteeing fundamental moral values. At the same time, the fundamental force is given by its moral obligation.

ACTIVITIES OF HISBAH

The term Hisbah in Kano has always been associated with controversy from its inception to date. When it is not President Obasanjo accusing the institution of jihadist tendencies, then it is people from the southern part of the country attacking the institution for destroying trucks of alcoholic drinks. The body has always been (in)famous for enforcing morality despite its efforts in curbing social and moral vices.

In November of last year, the Hisbah corps came under attack after raiding several hotels. A video of their operation surfaced on the internet, evidencing male officers harassing and apprehending female suspects and grabbing them in a commando style. Indeed, it was an affront to Islamic moral values. The actions of the Hisbah corps could be qualified as degrading treatment and, hence, unconstitutional. Allusions made to the video by the governor of Kano state prompted the commander-general’s retirement on March 1, 2024.

ARE LAWS REGULATING ARRESTS IN NIGERIA AT CONVERGENCE WITH OUR MORAL VALUES?

Unlike laws regulating search where the search is to be conducted by “persons of the same sex with strict regard to decency” and “reasonable time to withdraw” which must be given to a woman in purdah before a search is conducted on a premise she occupies, the laws regulating arrests in Nigeria have less regards to our moral values and culture as they do not have similar provisions regarding arrests to be conducted by persons of same-sex.

Therefore, the arrest carried out by the Hisbah corps is illegal only to the extent that it was done without a warrant, and their conduct violates the dignity of the suspect. However, the confinement of the female suspects by the male officers with excessive restraint cannot be faulted legally if there was a reasonable apprehension of violence, as our law does not mandate that the arrest of a woman be carried out only by a woman. This is not to serve as a justification for the degrading treatment meted out to suspects by the Hisbah corps during the arrest. They are suspects, not convicts, and even convicts are only deprived of their liberty, not their dignity.

CONCLUSION

“It is tempting to speak of law and morality as if they constitute two completely normative system whose prescriptions sometimes coincide and sometimes conflict. Maybe it is much more exact to consider law and morality as complementary. The complementarity of law and morality belies their separateness even though the two are not parallel streams whose water never mixed at any time.” UZOUKWU V. IDIKA (2022)3NWLR, (PT1818) (P, 462, paras G-H)

Many laws overlap with moral codes in Nigeria. Some laws were enacted to uphold our morality, but where the law does not contemplate our morals, it is our duty to call upon our senses of right and wrong. The Hisbah male officers should not have carried out the arrest of women, even though that alone cannot make the arrest illegal. It is their moral duty to have sent in their female officers to handle the entire scenario with a modicum of professionalism.

It is therefore put forward to our legislators that our Administration of Criminal Justice laws be amended to accommodate the model of arrest that will reflect our morals, culture, and dignity, just like the provisions on search.

Aliyu Zangina is a lawyer, and can be contacted via zanginaaliyu96@gmail.com.

By Salihi Adamu Takai 

Religion is the most important thing to live with on earth – and for embracing the ultimate life as the avenue to a – successful life and the last day. As a Muslim, you have been ordained in the religion you have faith in to accommodate everything said therein. Various verses in the Glorious Qur’an have an emphasis on being submissive to the religion completely.

In chapter 2 of the Qur’an, Verse 208, Almighty Allah asks the believers to enter Islam to the fullest extent of its laws, adhere to the Book – and refrain from transgressing to everything disliked therefrom. This has encompassed the extent of being surrendered in anything of the Almighty Allah.

Contemporaneously, we interact in a secular world where religious belief is becoming disliked by some people who deem themselves “humanists”. But, there had been a generation that had manifested the idea of religion and propagated the natural school of thought. They believed that the world should be controlled by the Lord against manmade laws.

Nowadays, secularism allows for democracy, reduces the power of religion, and empowers manmade laws. To them, religious law undoubtedly must be in conformity with manmade laws. This is, of course, stated in every Constitution of every secular state.

Section 10 of the 1999 Constitution of the Federal Republic of Nigeria mentions that ” The Government of Federation or of a State shall not adopt any religion as State Religion. This is the same as in the 1995 Constitution of the Republic of Uganda, Article 7, in which the Constitution says: “Uganda shall not adopt a State religion”.

Moreover, the same Constitutions give the right to practise a religion in both countries, Nigeria and Uganda. Section 38 of the 1995 Constitution of the Federal Republic of Nigeria gives the right to a religion in both countries, Nigeria and Uganda.

Section 38 of the 1995 Constitution of the Federal Republic of Nigeria gives the right to a religion. Also, in Article 29 of the 1995 Constitution of the Republic of Uganda, the right to religion has been protected. But the Constitution of Uganda, in the aforementioned Article, continuously says that the practice of the religion shall be in a manner consistent with the Constitution as it’s said in Article 2 ( Supremacy of the Constitution).

Nigeria, as a Federal State that encompasses diversity in tribe, culture and religion, indirectly gives room for the adoption of a religion but not to the extent of its laws. The establishment of the Shari’a Courts by the Constitution is, of course, a move to the adoption in the Eighteen States of the Northern parts of Nigeria. The Courts are not yet as powerful as the conventional courts of the Country.

The Sharia Courts are limited to hearing only Islamic Personal matters – not other crimes. Section 277 (1) of the 1999 Constitution of the Federal Republic of Nigeria says: “The Sharia Court of Appeal of a State shall, in addition to such other jurisdiction as may be conferred upon it by the law of the State, exercise such appellant and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law which the Court is competent to decide in accordance with the provisions of subsection (2) of this section.”.

By Salihi Adamu Takai 

Democracy is the system of government that allows room for participation by all people, and it’s the “government of the people for the people and by the people”. This means a thriving democracy always considers the interest of the masses, not the governors. In a democratic society, the governors become the subjects while the masses become the superior. This is proved in the definition of politics given by the late Aminu Kano ( the former Kano State Governor), Nigeria: “Politics is man management.”

The rule of law is one of the characteristics of a successful democracy. So, does it mean there is no existence of democracy if the rule of law is not fully implemented in applying democracy? Yes, it’s not a successful democracy. Professor A. V. Diecy defines the rule of law as the “absolute supremacy or predominance of the regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness or even of wide discretionary”.

Based on the definition given by Professor A. V. Diecy, the rule of law is all about “equality before the law”, and fundamental human rights also ensure this. Therefore, all the characteristics of the democracy are connected. When there is no one, it would be disconnected. 

The rule of law propagates “equality before the law” and makes it mandatory for all the affairs of the democratic government. In Nigeria, the 1999 Constitution of the Federal Republic of Nigeria ensures fundamental human rights under Chapter 4. Section 42 (1) ensures the “right to freedom from discrimination”, and this includes “equality before the law”. In accordance with Nigeria’s question, all the citizens of Nigeria are equal before the law. But, in the same Constitution by section 6, the power of the Judiciary to hear any matter is limited. Section 6 (6)(c)(d) limits Judicial power for hearing or questioning any matters related to Chapter 2 of the Constitution ( Fundamental Objectives). Also, the same Constitution immunise some authorities from legal proceedings (criminal) by section 308 (1) ( 3).

Nigeria and all other democratic States apply almost the same principles. In Uganda, the 1995 Constitution of the Republic of Uganda also ensures “equality before the law” under Chapter 4 by Article 21 (1). Clause (3) defines ” discrimination” as “to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability”. Thus, the above definition of the word used, ” discrimination” applies to all. However, the same Constitution by Article 98 (4) excludes the President of Uganda from legal proceedings in any court.

Therefore, considering the conflicting laws of the Constitutions applied in the democratic governments of all the democratic states, I can still say that with the discrimination, there shouldn’t be a successful democracy today.

Salihi Adamu Takai wrote via salihiadamu5555@gmail.com.

By Rabi’u Muhammad Gama

Introduction

The Kano State Hisbah Board (hereinafter referred to as “the Board”) has been an object of controversy, particularly on social media, for quite some years – probably right from the inception of the Board. The controversy usually surrounds the way and manner by which the Board, or more properly, the foot soldiers of the Board (the Hisbah Corps), carry out its, supposedly, statutory responsibilities (functions), ranging from matchmaking, reconciling civil disputes between persons and/or organisations, seizing and destroying bottles of alcohol, imposing a certain mode of dressing on people to waylaying young people, especially males, when they seem to have a certain objectionable hairstyle considered to violate Islamic morals.

Even though some historical accounts of the philosophical underpinnings behind the evolution of Hisbah will be very rewarding for a better appreciation of the topic, this article restricts its scope to the constitutional status and the functions of Hisbah as provided for in the Kano State Hisbah Board Law No. 4 of 2003.

The Constitution of the Federal Republic of Nigeria

The Constitution of the Federal Republic of Nigeria, 1999, (hereinafter referred to as “the Constitution”) is the Supreme Law of the Land. It is the Law over and above which there is no other law. As such, if any other law, either deliberately or by necessary implication, happens to be inconsistent with the provision of the Constitution, the Constitution shall always prevail, and that other law shall, to the extent of its inconsistency, be void and of no effect whatsoever. See Section 1(1)(2)(3) of the Constitution.

The Constitution is not only the Biggest Law of the Land, but it is also the  Fountain Law of the Land from which all other laws flow. It (the Constitution) distributes legislative powers between the federal and state legislatures. Section 4(1) confers on the National Assembly(which comprises the Senate and the House of Representatives) the power to make laws for the whole country or any part thereof. Section 4(6) likewise empowers the State House of Assembly to make laws for the state or any part thereof. However, these powers are to be exercised within some certain constitutional limits: the National Assembly cannot legislate outside the Exclusive Legislative List and the Concurrent Legislative List, while the State House of Assembly cannot, and shall not, trespass upon the Exclusive List. This clear distribution of powers forms the foundation of the debate as to the legality of the Hisbah Board Law, but that should be a topic for another day.

In response to the then prevailing circumstances and mounting agitation for the reintroduction of Shari’ah in the State, which was sparked by the reintroduction of Shari’ah in Zamfara State, the Kano State House of Assembly exercised the powers given to it by Section 4(6) of the Constitution by enacting a law known and cited as “The Kano State Hisbah Board Law No.4 of 2003, which brought the Hisbah Board into existence.

The Hisbah Board Law

The Kano State Hisbah Board Law, 2003 (hereinafter referred to as “the Law”) came into force precisely on the 7^th  day of November 2003. The law is relatively short: it has 17 Sections only. Section 3(1) of the Law establishes for the State “…a Board to be known as the Kano State Hisbah Board”. “This Board”, says Section 5 of the Law, “shall be responsible for general policy-making as well as coordination of activities between State and…Local Government Hisbah Committees”.

Section 7(1) of the Law empowers the Board to establish the State “Hisbah Corps”, who, according to the Section, may be eligible for appointment as Justices of Peace. By virtue of Section 7(2), the Corps so established shall be under a Commander who shall be appointed by the State Governor. And the duty of the Commander of the Corps, by virtue of Section 7(3), shall be the general administration of the Corps.

According to Section 11(1) of the Law, the Board shall have a Secretary who shall be appointed by the State Governor. The Secretary to be appointed shall be a legal practitioner with not less than 6 years of post-call experience. That Secretary shall be both the legal adviser and the head of the legal department of the Board.

It is important to assert, at this juncture, that the Kano State Hisbah Board, in spite of the raging debate going on in the legal cycle, is a legal and lawful organisation/institution which is duly and validly created by the Kano State House of Assembly pursuant to Kano State Hisbah Board Law No.4 of 2003. See also the case of Yahaya Farouq Cheɗi v. A.G Federation (2006) 13 NWLR (Pt.997) 308  (CA).

Duties of the Hisbah Corps

The Hisbah Corps, created by Section 7(1) of the Law, is the most active arm/department of the organisation. The Corps is the foot soldiers and the chief executor of the responsibilities of the organisation. For the sake of clarity and precision, below are the functions, or rather, responsibilities of the Hisbah Corps, as provided for under Section 7(4) of the Law. According to the said Section, the Hisbah Corps shall have responsibilities to:

Render necessary assistance to the Police and other Security agencies; encourage Muslims to unite in their pursuit of justice; encourage kindness to one another; advise against acquiring of interest, usury, hoarding and speculation; encourage charitable deeds, particularly the payment of Zakkah; give advice on moral counselling; encourage orderliness at religious gatherings; encourage general cleanliness and environmental sanitation; reconciling of civil disputes between persons and/or organisations where parties are willing; assisting in traffic control; emergency relief operations; assisting in any other situations that will require the involvement of Hisbah.

Anything other than the above is beyond the statutory functions of the Hisbah Corps. This begs the question: can the Hisbah Corps give itself powers or functions that are not given to it by its enabling law? The answer is “No”! And one fundamental thing that can be deduced from the above functions is that the Corps seems not to have any “actual power” to execute anything. The Law seems only to empower the Corps to “advise”, “encourage,” and “assist”, nothing concrete and definite! The Hisbah Corps clearly has no power to arrest, detain, waylay or force anybody to do anything against his or her will. The Law could not be clearer, and it is there for all to see.

Conclusion

The Constitution of the Federal Republic of Nigeria, 1999, is the first and the ultimate law of the country, the Grundnorm of the Land, so to speak. It creates and empowers the Kano State House of Assembly to make law for the peace, order and good government of the State or any part thereof. It is in the exercise of these powers that the Kano State House of Assembly made the Kano State Hisbah Board Law No. 4 of 2003, which brought into existence the Kano State Hisbah Board. The Kano State Hisbah Board Law, 2003, also creates the Hisbah Corps and empowers it with some specific functions and/or responsibilities.

It is the view of this writer that any act, no matter how noble or well-intentioned, done by the Board or the Corps must be in accordance with the provisions of the Kano State Hisbah Board Law, 2003; otherwise, the act is illegal, unlawful and ultra vires. And where an act of the Hisbah Board, or the Hisbah Corps,  happens to be in conformity with the Kano State Hisbah Board Law, 2003, but not in conformity with the Constitution of the Federal Republic of Nigeria,1999, or any other law validly made by the National Assembly, then the Constitution, or the law of the National Assembly, shall prevail and that act stands unlawful and illegal, no matter how religiously rewarding or well-intentioned the act is. See the case of Musa v. INEC (2002) LPELR-11119 (CA).

Rabi’u Muhammad Gama is a Law student; he writes from the Faculty of Law, Bayero University, Kano, BUK. He can be reached via rabiuminuwa327@gmail.com.

By Muhammadu Sabiu

President Muhammadu Buhari has been chastised for pardoning two former governors who were imprisoned for corruption.

Recall that on Thursday, the Council of State granted 159 convicts presidential pardons, according to reports.

Former governors of Plateau State, Joshua Dariye, and Taraba State, Jolly Nyame, imprisoned for stealing N1.16 billion and N1.6 billion, respectively, were among the released convicts.

However, speaking at the 1st anniversary of late Afenifere’s spokesman, Yinka Odumakin’s Lecture and Book Presentation, Mr Femi Falana (SAN), a human rights campaigner, encouraged the Federal Government to extend the presidential pardon to individuals serving sentences for minor offences. Falana argued that this would reflect fairness and equity for all.

“All petty thieves in our prisons should be released. Under Section 17 of the 1999 Constitution, there shall be equality and equal rights for all citizens.

“Section 42 of the Constitution says there shall be no discrimination on the basis of class and gender, so you cannot take out a few people on the basis that they belong to a category or section of the society.

“I can assure you that if the government did not release others, I am going to call on lawyers whose clients are left in custody to come to court and challenge the discriminatory treatment of their clients,” Mr Falana was partly quoted as saying.

By Rabiu Muhammad Gama

For a start, protest is something that you do to show publicly that you think something is wrong and unfair. Protest is an expression of disapproval; it’s done in different forms and on any day; it can be verbal or physical or via social media. In a democratic society like Nigeria, protest is an effective and legitimate tool, usually the only tool, that citizens can use to express their displeasure concerning some government measures or policies publicly. For example, when the government fails to discharge its duties, the citizens can hit the streets to register their grievances against the government. The nagging question, which this article sets out to answer, is: must people get a permit from a state governor or the Police Commissioner before convening a protest?

The Constitution of the Federal Republic of Nigeria, 1999 (as amended), is the fundamental law of the land. It is the law on top of which there is no other law. It is over and above any law, body or authority. It has been aptly submitted that the Constitution of any country, and don’t forget Nigeria is still a country, is the embodiment of what the people desire to be their guiding light in governance – their supreme law – the “grundnorm” of all their laws.

By virtue of Section 1(3) of the 1999 Constitution, any law, and that ‘any’ does mean ANY, that is inconsistent, or in conflict with a provision of the Constitution, that law is invalid and utterly useless due to its inconsistency with the Constitution. Please, permit me to draw an analogy; whenever there is a boxing match in a ring (read: court of law) between the Constitution and any other law, the referees (judges) always rule, and will undoubtedly continue to rule, in favour of the Constitution. No law can knock out the Constitution, no matter how strong and powerful its muscles are. The Constitution always prevails.

The Constitution provides for Fundamental Human Rights, precisely from Section 33 to Section 44, and these sections are in Chapter Four of the Constitution. These Fundamental Human Rights are simply those Rights that every human is entitled to simply because he is human. Therefore, these Rights cannot be taken away or restricted except in full compliance with Section 45 of the Constitution and some other relevant provisions therein.

Section 39 and Section 40 of the 1999 Constitution provide for the Right to Freedom of Expression and the Right to Freedom of Association and Peaceful Assembly, respectively: merging these two Sections gives us the Right to Protest. In the light of the foregoing, it is safe to submit that Right to Protest is a Fundamental Human Right that is clearly guaranteed and enshrined by the 1999 Constitution. Hence it cannot be restricted by anybody, including the DSS or the Police, or rather particularly the DSS or the Police. It is only the Constitution that can restrict that Right.

Before 2005, there was one undemocratic federal law (Act) that was dripping with dictatorship and some leftovers of colonialism mentality, the Public Order Act. The Law (Act) was initially promulgated as the Public Order Decree 5 Of 1979, and it later became an Act of the National Assembly under Section 274 of the 1979 Constitution. Sections 1 (2) (3) (4) (5) (6), 2, 3 and 4 of the Act required intending protesters to get a permit from the Governor (he can delegate the powers to the Commissioner of Police) of the state where the protest is to be held before they can protest. When the Governor, or the Commissioner of Police as the case may be, thinks that the protest is likely to disrupt public order, he can refuse to issue the permit.

However,  in the celebrated case of IGP v. ANPP (2008) 12 NWLR 65 when Malam General Muhammadu Buhari (as he then was) and his then political party, the ANPP, lost the presidential election in 2003 to Olusegun Obasanjo, requested the Inspector General of Police (IGP) by a letter dated 21^st May 2004, to issue police permits to their members to hold unity rally throughout the country to protest the alleged rigging of the 2003 election. The request was refused.

General Buhari and the rest of them organised the rally without the permits. As a result, there was a violent disruption of the rally organised in Kano on 22nd September 2003, on the ground that no police permit was obtained as required by the Public Order Act. The Federal High Court invalidated the provisions of the Act that required a Police permit before a protest is staged on the ground of their being inconsistent with the provisions of the Constitution, particularly Section 39 and 40, and Article 11 of the African Charter on Human and People’s Rights ( Reification and Enforcement) Act, Cap. 10, Laws of the Federal Republic of Nigeria, 1990.

On appeal, the Court of Appeal also affirmed the decision of the Federal High Court. Right from the Federal High Court, the learned trial judge relied on the decision of the Supreme Court of Ghana in the case of New Patriotic Party v. Inspector General of Police (1992 – 93) GBR 585 – (2000) 2 HRLRA 1 where it was aptly submitted that:

“Police permit has outlived its usefulness, statutes requiring such permits for peaceful demonstrations, processions and rallies are things of the past. Police permits is the brainchild  of [the] colonial era and ought not to remain in our statute books.”

That was how the Court sent those unconstitutional provisions of the Public Order Act to their eternal grave. By the way, it may interest you to know that by virtue of Section 83 (4) of the Police Establishment Act, 2020, where a person or an organisation CHOOSES to notify the police of his or its intention to hold a public meeting, rally or a procession on a public highway, the police officer responsible for the area where the rally will take place shall mobilise personnel to provide security for the rally! The police or the DSS have no powers whatsoever to stop or restrict the Fundamental Right of Nigerians to freedom of expression and assembly once those rights are exercised within the ambit of the law.

As the law stands today, no police permit is required before staging a protest in Nigeria. The right to protest is a Fundamental Human Right given by the Constitution, which cannot be taken away or restricted except in accordance with the provisions of the Constitution.

Rabiu Muhammad Gama is a Law student from Bayero University, Kano (BUK). He can be reached on 09061912994 or via rabiuminuwa327@gmail.com.

By Muhammad Sabiu

All is set for the launch of the copy of the Nigerian constitution (1999), which was translated into Hausa, Igbo and Yoruba by Prince Ade Ajayi Foundation Centre for Constitutional Literacy and Civic Education.

President of the foundation, Mr Ajayi, made the disclosure to journalists in Lagos on Friday.

He said that the translation work into the three languages, whose launch is scheduled to be held on the 25th day of November, took them six years.

According to him, the task aims to promote unity, national orientation.

He added that a book titled ‘I Love Nigeria, My Country’, would also be launched in the hope that national cohesion would be enhanced.

The News Agency of Nigeria (NAN) quoted him as saying: “Of 4,000 Nigerians randomly sampled in urban areas, over 80 per cent had never seen or read in whole or part, a soft or hard copy of the 1999 constitution.

“Of those who had, more than half could not recall what they had read. The statistics in rural areas are abysmal, largely due to literacy levels.

“We believe that the first step in national orientation is adequate civic education. This cannot take place where citizens do not have access to the one document that can most wholesomely, inform them.”