By: Yemi Mohammed, Esq.
I wish to comment on the constitutionality of the Bill currently being proposed or contemplated by the Kogi State House of Assembly, which seeks to enact a rotational principle for Governorship, Senatorial seats and Local Government Chairmanship in the State.
In my respectful view, the proposed law, though well-intentioned, is unconstitutional.
- Historical Context
The rotational principle is not new. It was expressly enshrined in the un-promulgated 1995 Constitution under the Abacha regime, which created six geopolitical zones and mandated rotation of the Presidency among them. The Constitution also had in its purview the rotation of elections to the Senate, House of Reperesentatives, State Houses of Assembly and even local government chairmanship. Unfortunately, that beautiful draft Constitution – beautiful in my opinion because of all the laudable things it had intended to achieve, including the rotational principle for the sake equity and fairness – never came into force. Upon the death of General Abacha, the Abdulsalami regime which produced the 1999 Constitution deliberately abandoned mandatory rotation for elective offices, retaining only the Federal Character principle as a directive for appointments under Sections 14(3) and 14(4). This history is crucial: what the Constitution makers deliberately omitted cannot be smuggled back through the backdoor of State legislation.
- The So-Called Residual List Argument
It is argued that rotation is neither in the Exclusive nor Concurrent Legislative List, and therefore falls under the Residual List within the competence of a State House of Assembly under Section 4(7)(b) of the 1999 Constitution. This is a misconception of the doctrine of residual powers. Residual powers relate to matters on which the Constitution is silent. The offices of Governor, Senator and Local Government Chairman are not silent matters. They are comprehensively regulated by the Constitution itself. Therefore, the doctrine of “covering the field” applies to prevent a State House from exercising legislative power within the same field. It cannot, under the guise of residual legislation, add to, subtract from, or vary the provisions of the Constitution. Any such law is void under Section 1(3).
Briefly, the doctrine of covering the field holds that where there is already in existence a valid Federal law on a particular subject, with respect to which both the Federal and State or regional legislatures have concurrent powers to make law, the State or regional legislature cannot purport to legislate on the same subject. In other words, the particular field or subject of legislation having already been covered by a Federal statute, a State legislature is automatically disqualified and excluded from making any law with reference to the same subject matter. See Attorney-General, Ogun State v. Aberuagba [1985] NWLR (Pt.3) 395 SC; Attorney-General, Ogun State v. Attorney-General, Federation [1982] 3 N.C.L.R. 166 SC; and LAUTECH v. Ogunwobi [2006] 4 NWLR (Pt. 971) 569 CA.
However, the doctrine of covering the field is applicable not only as between the Federal and State legislatures, but also as between the Constitution itself and any legislative authority, whether at the Federal or State level. This is on account of the declared supremacy of the Constitution over and above all persons and authorities in the land. See 1999 Constitution, s.1(1). The supremacy of the Constitution is held to be absolute and inviolate.
Thus, in I.N.E.C. v. Musa (2003) 3 NWLR (Pt. 806) 72, Ayoola J.S.C. (as he then was) explained the position of the law lucidly as follows:
‘Howsoever it is described, where the Constitution has covered the field as to the law governing any conduct, the provision of the Constitution is the authoritative statement of the law on the subject. The Constitution would not have ‘covered the field’ where it had expressly reserved to the National Assembly or any other legislative body the power to expand on or add to its provisions in regard to the particular subject. Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the Constitution had enacted must show that, and how, it has derived its legislative authority to do so from the Constitution itself.’ (Ibid., at p.158.)
Further on in its judgment, the apex Court also said:
‘The supremacy of the National assembly is subject to the overall supremacy of the Constitution. Accordingly, the National Assembly which the Constitution vests powers cannot go outside or beyond the Constitution…’ (Ibid., at p.199.)
The practical advantage or rationale of the adjustment of the relations between the respective legislatures of the centre and the federating units is that it prevents a situation whereby concurrent and cumulative duties and liabilities are imposed on a citizen through laws made by two different legislatures. See Dickson v. The Queen [2010] HCA 30; University of Wollongong v.Metwally & Ors. [1984] HCA 74; (1984) 158 C.L.R. 447 at 457-458 and 476-477; and Croome v Tasmania [1997] HCA 5; (1997) 191 C.L.R. 119 at 129-130.
The same thing applies with respect to the doctrine as it concerns the relationship between the Constitution and any of the Nigerian legislatures. The following passage aptly captures the general essence of the doctrine:
‘How does inconsistency arise? This involves a reading of the specific provisions of the two laws. Inconsistency comes from contrary provisions in the laws. It may be direct and positive so that the two laws cannot be reconciled. More often it is read from the scope and object of the Federal law as gathered from its provisions; where the Federal law expressly or impliedly shows its intention to cover the field that is conclusive test of inconsistency if the state law enters to any extent upon the same field. – Clyde Engineering Co Ltd v. Cowburn [1926] 37 CLR 466, 489. In other words, if the state law is destructive of the provisions of the Federal law on the same subject, then it is inconsistent with it – The State of Victoria v. The Commonwealth [1937] 58 CLR 618, 627-628. Sometimes the inconsistency may arise from an indirect effect of a state law on a Federal legislation. For instance, where a Federal law has fixed the price of goods, a state tax law which had the effect of increasing the price of the goods (indirectly) was held inconsistent with the Federal law – Attorney-General of Ogun State v. Aberuagba (1985) 4 SC 288, 328. In all other cases where the Federal law does not expressly abrogate the state law but recognises that it can exist side by side with the Federal law, there is no inconsistency – Ex Parte Nelson (No.1) (1928) 42 CLR 209. Mutual obedience, or that it is possible to obey both laws does not remove inconsistency. Co-existence is denied. And when that happens the result is inconsistency – Hume v. Palmer (1926) 38 CLR 441. Situations that give rise to inconsistency are many. Where the same power is given to two different bodies to number houses, the exercise of these powers concurrently by both bodies cannot exist together. Or a Federal law prescribes a figure and a state law stipulates another figure, it is inconsistency – Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466. A Federal law prevails over a state law even though the state law may have been made as part of a legislative scheme which the Federal legislature could not have enacted in all its parts – Colvin v. Bradley Brothers Pty Ltd (1943) 68 CLR 151, 157-158, 159. However, inconsistency does not arise from the fact that both laws fall within the same category or classification of subject-matter. The test of inconsistency is whether a proposed law is consistent with obedience in two directions – Federated Saw Mill v. James Moore & Sons Pty Ltd [1909] HCA 43.’
[See http:tnaidike.wordpress.com/doctrine-of.covering-the-field-in-constitutional-theory/. Retrieved 28 Septembere, 2026. See also R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 C.L.R. 23, a High Court of Australia case dealing with inconsistency between Commonwealth and State legislation, which is the subject of s.109 of the Australian Constitution. The case is a leading example of what is known as the impossibility of simultaneous obedience test.]
Finally, where a State law is found to have been enacted in defiance of its prescription, the doctrine also holds that the State law shall be treated as having become “irrelevant and therefore, impliedly repealed.” See Attorney-General, Ogun State v. Attorney-General, Federation [1982] 2 F.N.R. 4 at p.7 [per Fatayi-Williams, C.J.N.].
However, in spite of having its earliest ancestry in American constitutional law theory and its extensive development and application by the courts in Australia, it is clear that as far as Nigerian law is concerned, the doctrine has its jurisprudential roots in the substantive provisions of the Nigerian Constitution.
- Governorship and Senatorial Seats
(a) Qualification: Section 177 of the Constitution prescribes the exhaustive qualifications for Governorship. In INEC v. Musa (2003) 3 NWLR (Pt.806) 72, the Supreme Court held that neither the National Assembly nor, a fortiori, a State Assembly, can add new qualifications. A law that provides that only a person from a particular Senatorial District can contest in a given year adds a new qualification based on place of origin.
(b) Discrimination: Such a law violates Section 42(1) of the Constitution, which prohibits discrimination based on place of origin. To bar a qualified Kogite from contesting because it is not his zone’s turn is discriminatory and unconstitutional.
(c) Federal Subject: Senatorial seats are federal constituencies created under Section 71 and Item 22 of the Exclusive List. A State House has no legislative competence to determine how a federal seat rotates.
- Local Government Chairmanship
While Section 7 and Section 4(7) give a State House power to legislate on Local Government elections, that power must be exercised in conformity with Sections 42 and 40 (freedom of association) and Section 7(4) which guarantees democratic participation. A mandatory rotational disqualification would still fall foul of Section 42.
- What is Constitutionally Permissible?
The Constitution does not forbid rotation as a political arrangement. Political parties, in exercise of their freedom under Sections 40 and 223, may zone their tickets. This is a political convention, not a legal compulsion. Furthermore, Section 14(4) enjoins the State Government to ensure its appointments reflect diversity. The State can therefore enact policies to ensure spread in appointments. What it cannot do is enact a justiciable law that disqualifies a citizen from contesting an election.
- Conclusion
The proposed Bill, if passed, will be declared null and void for inconsistency with Sections 1(3), 14(4), 42, 65, 106, and 177 of the 1999 Constitution (as amended). It does not fall within the residual list because the field is already covered by the Constitution itself. I would advise the Kogi State House of Assembly to consider a non-justiciable Charter of Equity or a resolution encouraging rotation among political parties, rather than a mandatory statute. Better still, the idea of rotational principle should be escalated to the national level and championed thereat with a view to getting it enshrined in the Constitution via a constructional amendment. That seems to me to be a safer path to achieving the laudable objectives of Kogi State House of Assembly. Again, to my mind, telling those who may not like the idea of rotation to go to court is a clear invitation to futility and therefore unwarranted. The House will definitely come back to square one, so to speak, after undergoing futile sojourns in the courts.
– Yemi Mohammed, Esq., a Legal Practitioner, writes from Lokoja.
