The Constitutionality of Ganduje’s Ban on Persons of Opposite Sex Boarding Same Commercial Tricycle
By Ebi Robert
The Governor of Kano State, Abdullahi Umar Ganduje, has placed a ban on persons of opposite sex from boarding the same commercial tricycle in the state. According to available reports, the development was disclosed by the Commander General of Hisbah Board, Harun Ibn-Sina, who represented the Governor at the closing ceremony of the 77th Annual Islamic Vacation Course (IVC) organized by Zone-A Muslim Society of Nigeria (MSSN) held on Wednesday, the 25th of December, 2019. It was added that defaulters are liable to imprisonment on terms and some lashes as well.
The report also reveals that the reason for the ban is premised on the fact that the state government is committed to upholding Islamic values. The ban is expected to take effect from January, 2020.
The said Executive Order or directive has generated mixed reactions from advocates at all quarters. Some believe that it will surely uphold the tenets of Islamic teachings, and improve decency, or what could be called, “public morality” in the state. Recall that the former governor of Kano State, Ibrahim Shekarau had earlier introduced the “A daidaita Sahu’ as a means of transporting, only, women after banning commercial motorcyclists from conveying women. Despite how convincing this directive may be, what really is the legal implication of the said order?
The law is trite that executive directive or order which prescribes certain acts as crime, but has not been transmitted into a written law is null and void and of none-effect, having no legal weight whatsoever. This was the holding of the court in the case of Faith Okafor v. Governor of Lagos State & Anor (2016) LPELR-41066 (CA). In the said case, Faith Okafor was arrested, her freedom restricted, and then accused of violating the Governor’s directive by walking during the sanitation exercise in the state. It was contended that the Governor’s directive can be equated to a law which is to be obeyed, failure which will attract the prescribed penalty so stated. The Court in relying on S. 36 (12) of the Constitution of the Federal Republic of Nigeria, faulted the directive for being in violation of the provisions of the grundnorm, the Fons et Origo of the land. Excerpt of the holding reads:
“I find worrisome the contention of the Respondents that the directive of the Governor can be equated to a Law for which criminal sanctions will lie, and a person tried and convicted for the offence of violating the directives of the Governor. The Respondents submitted as follows in Paragraph 4. 1. 20 of the Respondent’s Brief. 4. 1. 20. My lords, it is humbly submitted that this particular provision of the law settles all the displeasures that may have erupted in the appellant with regards to her arrest and trial before the Special Court. It also explains how even though the law that all residents of Lagos State must remain in their houses to observe the monthly sanitation may not be resident in any written law, same still remains valid, having been directed by the Governor. It is worthy of note that the appellant at no point contested the existence of a directive restricting the movement of persons and vehicles on every last Saturday of the month within the State, save for the fact that is not contained in any law. I shudder at this submission which in its elastic ramification takes us back to the dark ages of the Hobbesian state of nature. Section 36 (12) of the 1999 Constitution provides that a person shall not be convicted for a criminal offence unless that offence is defined and the penalty therefore prescribed in a written law. The Respondents while conceding that there is no written law restricting movement of persons on environmental sanitation days and making it an offence argue that the restriction still remains valid having been directed by the Governor. I find it shocking that the disobedience of the directive of the Governor in this regard has been elevated to a crime for which criminal sanctions attach, as in the conviction of the Appellant and the fine imposed on her." Per OGAKWU, J.C.A. (Pp. 18-20, Paras. F-G)”
Applying the above decision of the Pen-Ultimate Court to the Ganduje’s case, one cannot but conclude that the directive of the Governor will not hold water since it is a mere directive without legal backing. Assuming it is but one directive so translated into a written law, with a definition of the act being a crime and penalty so attached, one must consider whether it is justifiable having regards to the provisions dealing with freedom of religion. Everyone is entitled to freedom of religion, in line with the extant laws. Except for those who subscribe to the directive in line with their faith, Non-Muslims who see this against their faith cannot be subject to it. Thus, the said directive apart from being constitutionally null and void for having no legal backing, cannot also enjoy general applicability. The case of Provost, Kwara State COE, Ilorin & 2 Ors v. Bashirat Saliu & 2 Ors Appeal No CA/Il/49/2016 is instructive in this regard.
Ebi Robert (LLB, BL, LL.M in view) is an attorney, author, legal researcher and Human Rights Activist. He currently practices in Yenagoa, Bayelsa State, Nigeria.
You can reach him at: email@example.com