Benedict Oregbemhe 1 The Mandatory Use of the National Identification Number Regulation 2017: How Constitutional?

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1 Agency & Regulatory Matters 31 st January 2018 Benedict Oregbemhe 1 The Mandatory Use of the National Identification Number Regulation 2017: How Constitutional? Introduction: The National Identity Management Commission ( the Commission ) was established by the National Identity Management Commission Act 2 ( the Act ). The Commission is a body corporate with perpetual succession and a common seal and may sue and be sued. 3 The operation of the Commission is run by a governing board, with representatives from various offices, agencies and commissions. 4 The Commission is charged with the following statutory functions, among others, to: 5 (a) (b) create, manage, maintain and operate the National Identity Database established under section 14 of the Act including the harmonisation and integration of existing identification databases in government agencies and integrating them into the National Identity Database; carry out the registration of citizens of Nigeria into the National Identity Database; LL.B., (University of Benin), B.L. (Nigeria), LL.M., (University of Lagos): Senior Associate in the Dispute Resolution Department, SPA Ajibade & Co., Lagos, Nigeria. Section 1(1), Cap. N154, Laws of the Federation of Nigeria Section 2 ibid. Section 2 ibid: a part-time chairman and a representative each of - the Independent National Electoral Commission, the National Health Insurance Scheme, the Federal Road Safety Commission, the Federal Inland Revenue Service, the National Pension Commission, the Nigeria Police Force, the Nigeria Immigration Service, the Office of the National Security Adviser, the National Population Commission, the Central Bank of Nigeria, the State Security Service, the Economic and Financial Crimes Commission, the Chief of Defence Staff, the Corporate Affairs Commission; and three persons who are knowledgeable in Information Communication Technology or identity management to represent the public interest. Sections 5 ibid. 1 of 5

2 (c) issue a General Multi-purpose Identity Card to any person registered pursuant to paragraphs (b) and (c) of this section; The Act empowers the Commission to make regulations for the effective operation of the Act and the due administration thereof. In the exercise of these powers 6, the Commission has recently issued the Mandatory Use of the National Identity Number Regulations, ( the Regulations ). This regulation has such broad and extensive reach, that in our view its scope exceeds the powers of the commission to legislate upon. We examine a few of these provisions and explain why we hold the view that the Commission has exceeded its authority under its enabling law and under the 1999 Constitution. The Constitutionality of Some Provisions of the Regulations: The Constitution is supreme and its provisions have binding force on all authorities and persons throughout the Federal Republic of Nigeria. 8 The legislative power of the Federal Republic of Nigeria is vested in the National Assembly which consists of the Senate and a House of Representatives. 9 The power of the National Assembly to enact laws for the peace, order and good government of the federation is with respect to the matters listed in the Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution and the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to the Constitution. 10 The legislative power of the National Assembly to enact laws for the peace, order and good government of the federation with respect to the matters contained in the Exclusive Legislative List is to the exclusion of the State Houses of Assembly. 11 The National Assembly is also empowered to enact laws with respect to any matter in the Concurrent Legislative List 12 and if any laws enacted by a State House of Assembly in respect of such matters is inconsistent with any law validly enacted by the National Assembly, the law made by the National Assembly shall prevail, and the State law shall to the extent of its inconsistency be void. 13 The Exclusive Legislative List has 68 items over which the National Assembly has power to make laws for the peace, order and good government of the Federation or any part thereof to the exclusion of the State Houses of Assembly. The Concurrent Legislative List contains Sections 27 and 31 ibid. The Mandatory Use of the National Identity Number Regulations, 2017, Gazette No. 121, Vol. 104 of 13 th November Section 1(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 4(1) ibid. Section 4(2) ibid. Section 4(3) ibid. Section 4(4)(a) ibid. Section 4(5) ibid. 2 of 5

3 30 items for which both the National Assembly and the House of Assembly of a State have concurrent legislative power to make laws applicable within the Federation of Nigeria and the respective States. Any items not listed in the Exclusive and Concurrent Legislative Lists are within the legislative competence of the State Houses of Assembly. The National Assembly lacks the constitutional competence to make laws outside its legislative domain which are by implication residual matters reserved for the State Houses of Assembly. The National Assembly cannot, in the exercise of its powers to enact some specific laws, take the liberty to confer power or authority on the Federal Government or any of its agencies to engage in matters that ordinarily fall within the responsibility of the State Houses of Assembly, a State Government or its agencies. This would be to allow the National Assembly, the Federal Government or its agencies to encroach upon the constitutional authority conferred on the State Houses of Assemblies under their residual legislative power. 14 We are of the opinion that some of the items listed in the Regulations 15 for which mandatory use of the national identification number is required are items over which the State Houses of Assembly have exclusive competence to legislate on to the exclusion of the National Assembly. For example, hospitality services, 16 save for tourist traffic, 17 are within the exclusive legislative competence of the State Houses of Assembly 18 and not for the National Assembly to regulate, neither does the Commission have the constitutional authority to make regulations for the registration, provision and use of hospitality services in Nigeria. The Regulation requires a mandatory use of the national identification number in an application for the adoption of an infant, child or person under applicable laws. 19 Adoption of an infant or child is neither listed in the Exclusive nor Concurrent Legislative Lists of the 1999 Constitution; thus, it remains a residual matter within the exclusive legislative competence of the State Houses of Assembly. The National Assembly or the Commission cannot legislate or make Regulations on the practice and procedure of adoption in Nigeria. It AG Federation v. AG Lagos State (2013) 16 NWLR (Pt. 1380) 249 at 303, paras.c-d, per Galadima, J. S. C. Regulation 1(1) ibid (n 8). See Regulation 1(a) ibid. The hospitality industry is a broad category of fields within service industry that includes lodging, event planning, theme parks, transportation, cruise line, and additional fields within the tourism industry.... Usage rate, or its inverse "vacancy rate", is an important variable for the hospitality industry. It involves the regulation, registration, classification and grading of hotels, motels, guest inns, apartments, restaurants, cafeterias, fast foods outs, tour operating outfits, travel agencies and other tourist related establishment within a State. Item 60(d) of Part 1 of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended. Tourist traffic applies to any person who moves from one place to another for sightseeing, relaxation and possibly cultural purposes. Such travel may not necessarily be from one country to another but from one town to another within a country. The word also refers to the movement of persons into and within a designated place for visitation or pleasure. But within the context of item 60(d) it connotes that a tourist is an international traveler who travels to another country for purpose of sightseeing etc., and who must thus obtain visa to visit the said other country See AG Federation v. AG Lagos State ibid (n 14). Ibid (n 9). Regulation 1(1)(c) ibid (n 8). 3 of 5

4 is ultra vires the National Assembly and the Commission to make provisions for the mandatory use of the national identification number for applications with respect to adoption of an infant or child under the relevant State enactments. By virtue of the Regulation, filing and registration of criminal and civil actions in court or other arbitration processes 20 now requires the mandatory use of the national identification number. The National Assembly has the legislative competence to legislate for the practice and procedure of the federal courts or such other courts and tribunals established by an Act of the National Assembly or for which the National Assembly has power to make laws. Thus, the National Assembly would in the circumstances, have legislative competence to enact laws regulating the practice and procedure of the Federal High Court, National Industrial Court of Nigeria, High Court of the Federal Capital Territory, Abuja, National or Federal Tribunals, the Court of Appeal, and Supreme Court. However, the National Assembly does not have the constitutional competence to legislate for the practice and procedure of State High Courts or such other courts or tribunals as established by a State House of Assembly. In the same vein, the Commission cannot make Regulations requiring the mandatory use of the national identification number in courts established by the law of a State House of Assembly. In recognition of this fact, the Commission has deliberately defined the court in which the mandatory use of the national identification number is required for filing criminal and civil actions to mean the Federal High Court. 21 Furthermore, the Regulation requires the mandatory use of the national identification number in arbitration processes in Nigeria. Arbitration is a private dispute resolution mechanism, and is regulated by the Arbitration and Conciliation Act 22 and the Lagos State Arbitration Law Arbitration being a private dispute resolution mechanism, party autonomy is vital. In the view of this writer, if parties decide to arbitrate under the Arbitration and Conciliation Act, being a federal enactment, then, the mandatory use of the national identification numbers may become imperative and binding. Since the Regulation requires the mandatory use of the national identification number in filing civil actions at the Federal High Court, it therefore follows that any application for the enforcement of any arbitral awards at the Federal High Court must contain the national identification number of the legal practitioner that signs the processes. However, if parties choose to arbitrate their dispute under the Lagos State Arbitration Law 2009 which is a State law, the use of the national identification number becomes optional and not mandatory, binding or compulsory for the parties Regulation 1(1)(u) ibid (n 8). Fasakin Foods (Nig.) Ltd v. Shosanya (2006) 10 NWLR (Pt. 987) 126 at 145. Cap. A18, Laws of the Federation of Nigeria Cap. A11, Laws of Lagos State of Nigeria of 5

5 The Regulation requires mandatory use of the national identification number with respect to filing, processing and obtaining of probate documents. 24 Filing, processing and obtaining of probate documents is within the exclusive legislative competence of the State Houses of Assemblies and not the National Assembly. Filing, processing and obtaining of probate is neither listed in the Exclusive nor Concurrent Legislative Lists of the 1999 Constitution; therefore, it is a residual matter for the State Houses of Assembly to legislate upon. The pedestal upon which the Regulation is anchored is sections 27 and 31 of the Act. The National Assembly or the Commission does not have constitutional or statutory competence to enact laws or regulations with respect to filing, processing and obtaining of probate documents in the States. Having regard to the fact that filing, processing and obtaining of probate generally is a residual matter under the Constitution, the requirement for a mandatory use of the national identification number in filing, processing and obtaining documents in the State High Court Probate Registry becomes unconstitutional and beyond the powers of the Commission. The constitutionality of any enactment by the National Assembly or any government agencies must be measured against the backdrop of section 4(6) and (7) of the 1999 Constitution. In light of the above, the power of the National Assembly or any government agencies to legislate on a given matter must be traceable to the 1999 Constitution, and fall under either the Exclusive or the Concurrent Legislative Lists. If the National Assembly or any government agencies should legislate on any matter not within its legislative competence or outside the ambit of the said constitutional provisions, such enactment is invalid and shall have no effect at law. 25 Conclusion: In conclusion, we contend that some provisions of the Regulations reviewed above, to the extent that they seek to regulate areas within the exclusive legislative competence of the State Houses of Assembly, are null and void. For further information on this article and area of law please contact Benedict Oregbemhe at: S. P. A. Ajibade & Co., Lagos by telephone ( ), fax ( ) mobile ( ) or (boregbemhe@spaajibade.com) Regulation 1(1)(qq) ibid (n 8). Section 1(3) ibid (n 9). 5 of 5