SECTIONS 26(2) VIS-À-VIS 42 OF THE 1999 CONSTITUTION (AS AMENDED): CAN THE PROVISIONS OF CHAPTER IV OF THE CONSTITUTION BE USED IN RENDERING INAPPLICABLE OTHER PROVISIONS OF THE CONSTITUTION?[1]
1.0. INTRODUCTION
Section 26 of The 1999 Constitution (as amended)[2] provides for the requirement that must be fulfilled for a foreigner to register as a Nigerian. In doing this, Section 26 surreptitiously conferred on Nigerian men, the benefit of having their wives registered as Nigerians. Section 42 of The Constitution forbids discrimination on the basis of sex. Are these Sections conflicting or can they work together? Can the inequality be corrected?
Section 26 of The Constitution provides that:
Subject to the provisions of section 28 of this Constitution, a person to whom the provisions of this Section apply may be registered as a citizen of Nigeria, if the President is satisfied that –
a. He is a person of good character;
b. He has shown a clear intention of his desire to be domiciled in Nigeria; and
c. He has taken the Oath of Allegiance prescribed in the seventh schedule to this Constitution.
The provisions of this section shall apply to:
a. Any woman who is or has been married to a citizen of Nigeria;[3] or
b. Every person of full age and capacity born outside Nigeria any of whose grandparents is a citizen of Nigeria.
Section 42(1) of The Constitution provides however that: A citizen of Nigeria of a particular… sex shall not, by reason only that he is such a person — be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other … sex are not made subject; or be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other … sex.
Section 24 only permits a Nigerian man to be entitled to have his wife to register as a Nigerian citizen. Section 42 says no law in the Federation can grant privileges to a Nigerian of a particular sex by the mere fact that he is of such a sex. The questions that call for interpretation in the light of the above are:
a. Is there a conflict between the two provisions?
b. If yes, which should bow?
c. If no, what can/should be done to correct the unequal treatment of married Nigerian men and women?
2.0. THE ROLE OF THE JUDEX IN THE INTERPRETATION OF THE CONSTITUTION
The Courts have always been urged that in interpreting the provisions of the Constitution, care should be taken not to overrule a Constitutional provision merely because it seems another provision contradicts it; that is Constitutional provisions are to be interpreted holistically. Thus, in Buhari v. INEC 2009 Vol. 167 LRCN 1 at 82–83, the Supreme Court observed that: “Courts of law, in interpreting the constitution or a statute have no jurisdiction to read into the constitution or statute what the legislators did not provide for, and a fortiori read out of the constitution or statute what is provided for by the legislators. In either way, the courts are abandoning their constitutional functions and stringing into those of the legislature by interfering or interloping with them. As that will make nonsense of the separation of powers provided for in sections 4 or 6 of Constitution, courts of law will not do such thing, whatever is the pressure by counsel.” Eko JSC in Cocacola Nig. Ltd. v. Akinsanya [2017] 5–6 MJSC 120 at 138 further observed that: ‘They are very clear. The courts for a long while now have come to settle on the principle that if the words of the statute are clear and unambiguous they must be followed even if they lead to manifest absurdity. See Queen v. Judge of the City of London (1892) 1 QB 273 at 290. It was stated further in this decision, in the manner of positionism that the court has nothing to do with question whether the legislature has committed absurdity. It is only when the words of the statute are capable of two interpretations: one leads to absurdity, and the other does not, that the court will conclude that the legislature does not intend the absurdity and will adopt the other interpretation that does not lead to any absurdity. The judex neither makes laws nor does it possess any power to amend any statute.’ Furthermore, in the case of Abegunde v. Ondo State House of Assembly,[4] the Supreme Court commended the Court of Appeal thus: “Being a constitutional provision, the courts do not discharge their duty by limiting their scrutiny of the conduct of the appellant by reference only to the particular section of the Constitution. Effective exercise of their interpretative jurisdiction requires examining the Constitution as a whole.”
In the light of this sacred responsibility, what should the court do? Only the words of the two sections under the spotlight can help.
First, I venture to think that the two provisions are not contradictory to the extent that the Constitution is not a law; it stands shoulder above every other law. Thus, it would seem that if a Constitutional provision creates a discriminatory practice that would otherwise be unlawful under Section 42(1), such practice cannot be challenged in court as a case of infringement of Fundamental Rights. It will be out of place to say a constitutional provision is unconstitutional. The words of Section 1(3) of the Constitution cannot be applied beyond its clear purport: If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.
Second, can the provisions of a law render inapplicable the other provisions of that law or another law? Ordinarily, the answer is yes especially where the words of the provisions lead to no other interpretation than its super-imposition over the other provision.[5] Other than in this situation, Courts of law are encouraged to interpret statutes in such a way that effect is given to all provisions of a Statute. In Abegunde (Supra),[6] Fabiyi JSC observed that: “It is apt to state briefly the general principles of law governing the interpretation of the Constitution. The first canon of interpretation is referred to as the broad interpretation or liberal approach or the global view. See Rabiu v. The State (1980) 8–11 SC 130 at 151, 195. The second canon is that related sections of the Constitution ought to be interpreted together so as to produce a harmonious result. See Senator Abraham Adesanya v. President of the Federal Republic & Anor (1981) 5 SC 112 at 134, 321. Thirdly, where the words of any section are clear and unambiguous, they must be given their ordinarily meaning, unless this would lead to absurdity or be in conflict with other provisions of the Constitution.”
Question 2 posed above has thus become merely academic which Courts of Law do not normally bother themselves with. The Supreme Court of Nigeria in Congress for Progressive Change v. Independent National Electoral Commission and 41 ors[7] had the opportunity of defining academic question when per Muhammed JSC, it said, following Tobi JSC in Plateau State v. A.G. Federation[8] that: “A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the Plaintiff even if judgement is given in his favour; suit is academic if it is not related to the practical situation of human nature and humanity… An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on the successful party.[9]”
On question 3, only an amendment of Section 26 of The Constitution can cure the obvious advantage granted to Nigerian men over their female counterparts. Section 9 of The Constitution highlights the steps to be taken in amending any provision of The Constitution.
3.0. CONCLUSION
There seems to be no justifiable reason for only permitting the foreign wives of Nigerian men to register as citizens of Nigerians without extending such benefit to the foreign husbands of Nigerian women.
[1] The author is an Associate at P O Bajowa Chambers and may be contacted via aolulaw17@gmail.com.
[2] The Constitution
[3] Emphasis supplied. In a country that traditionally is against marital/sexual relationship between people of same sex, the citizen must mean a man.
[4] (2015) 61 (Pt. 3) NSCQR 1857 at 1896–1897
[5] See NDIC v. Okem Enterprises Ltd. (2004) LPELR-1999 (SC) at 55 per Uwaifo JSC
[6] At Page 1922–1923
[7] (2011) 2 SC Pt. 5 Pg. 80 at page 153
[8] (2006)1 SC (Pt. 1) 1
[9] See also Nnabude v. GNG (West Africa) Ltd. [2010] 15 NWLR (Pt. 1216) 365 at 391
