This directive which has been nullified by the Court of Appeal will be considered from two perspectives:

  1. What is the law making body of each state? Can the Governor of a state validly make laws to govern the activities of a state?
  2. Can the laws made by a state override the express provisions of the Constitution of Nigeria?

What is the law making body of each state? Can the Governor of a state validly make laws to govern the activities of a state?

In Nigeria, there are basically three arms of government that ensure that laws are made, executed and interpreted. These are the Legislature, the Executive and the Judiciary respectively. The three arms of government are essential in the nation as they ensure that democracy in Nigeria is maintained. The importance of these arms of government is established by the Constitution of the Federal Republic of Nigeria, 1999 {as amended} which sequentially outlines these arms and states the functions of each of them. This is found in Sections 4, 5 and 6 of the Constitution.

The legislative powers of the Federal Republic of Nigeria are vested in the National Assembly for the Federation consisting of a Senate and a House of Representatives. The laws made by the National Assembly are called Acts. On the other hand, the House of Assembly of a state makes laws for that state and these are called Laws. The laws made by the National Assembly are for the entire Federation while those made by the House of Assembly of each state are to govern the affairs of each state. This marks the difference between a Federal Act which is universally applicable to all parts of Nigeria and a state Law which is peculiar to the state that made such law. So, an Act is regarded as being superior to a state Law. Section 4(5) of the constitution states that if any law enacted by the House of Assembly of a state is inconsistent with any law validly made by the National Assembly, the Law made by the National Assembly shall prevail, and that other Law shall to the extent of the inconsistency be void. This has also been highlighted in a plethora of cases, an example of which is AG Federation v AG of Lagos State (2013) LPELR – 20974 (SC).

Emphasis will be laid on the provisions of the Constitution relating to the state government as the Lagos State Environmental Sanitation Law is the focus of this article. By Section 4{6} of the Constitution, the legislative powers of a state of the federation are vested in the House of Assembly of the state.  This basically involves making laws for the peace, order and good government of the state.

In applying the above provision of the Constitution to Lagos state, the House of Assembly of Lagos State is empowered by the Constitution to make laws for the peace, order and good government of the state. To this extent, the Environmental Sanitation Law 2000 is a law made by the House of Assembly of Lagos State to provide for environmental sanitation in Lagos state, to establish the environmental sanitation corps and for connected purposes.

Furthermore, Section 5 of the Constitution is to the effect that the executive powers of a state are vested in the Governor of that state and subject to the provisions of the constitution and any law made by a house of assembly, may be exercised by the Governor directly, or through the deputy governor and commissioners of that state or officers in the public service of the state. The executive is empowered to execute and maintain the constitution, all laws made by the house of assembly of the state and all matters upon which the house of assembly has the power to make laws.

From these provisions, the executive basically executes/implements those laws which have been made by the legislature. Again, in applying this to Lagos state, the Lagos state Governor {who belongs to the executive arm of government in Lagos state} has the responsibility to execute the Constitution and all laws made by the House of Assembly of Lagos State.

Apart from the above, there are so many factors to be considered in making laws that a directive by a Governor of a state will not suffice in constituting valid law. Some of these factors are: practicability of the law, problem areas or challenges that may be faced where the law is applied and existing laws on the same subject. Failure to put these factors and many more into consideration will lead to making laws that do not align with the reality of human existence and society.

Having considered the body with the power to make laws in the state, the Governor of the state has no such powers to make laws. Thus, where the law in force {Environmental Sanitation Law of Lagos state} does not in itself restrict movement of people within the state between 7am and 10am of every last Saturday in each month, then any statement restricting movement of people between same hours is unconstitutional and void.

Can the laws made by a state override the express provisions of the constitution?

Even if an argument arises to the effect that the Governor can validly make laws, the validity of the law on restriction of movement is again put before the beaming eyes of the Constitution of the Federal Republic of Nigeria, 1999 {as amended}.

Section 41 of the Constitution states that every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part of Nigeria. This provision is however not absolute. It is qualified to the effect that laws may be made imposing restriction of movement on a person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria.

There is no provision of the exception to the right to freedom of movement as failure to obey state sanitation laws or failure to remain in one’s residence between 7am and 10am every last Saturday in every month.

Therefore, any law that restricts the movement of citizens of Nigeria in any way except as provided by the Constitution is inconsistent with the provision of the Constitution. Consequently, the Constitution shall prevail rendering such other law void to the extent of the inconsistency. This is the position of the Nigerian Law on freedom of movement and the supremacy of the constitution of the Federal Republic of Nigeria.

Conclusion

In light of the foregoing, the recognized law making body of the state {the house of assembly of the state} should be left to carry out its function effectively without interference from either the executive or the judiciary. The executive should limit itself to the implementation of the law. Right to freedom of movement is a fundamental human right of every Nigerian citizen. This should not be toyed with for any reason outside that provided by the Constitution of the Federal Republic of Nigeria. The constitution is supreme and has binding force on all authorities and persons throughout the Federal Republic of Nigeria. Although the Lagos state Environmental Sanitation Law is laudable in its contents, its implementation should be in line with its contents and ultimately the constitution of the Federal Republic of Nigeria.

*Appellant means a person who is discontent with the decision of a lower court and applies to a higher court for its reversal.

* Respondent is a defending party in an action brought by the appellant; usually the one in whose favour a decision was reached in the lower court.

*Arms of government are also known as branches of government.

REFERENCES

7th November 2016.

  • Environmental Sanitation Law 2000: Chapter E6. Laws of Lagos State of Nigeria 2015.
  • AG Federation v AG of Lagos State (2013) LPELR – 20974 (SC).
  • The Constitution of the Federal Republic of Nigeria, 1999 (as amended).