The constitutionality of declaring June 12 a public holiday (1)

THE election that took place on June 12 1993 was expected to usher in civil rule after about nine years of unbroken military rule which commenced after the overthrow of the democratically elected government of Alhaji Shehu Shagari by the military on 31 December, 1983. The election was annulled by the Military Government headed by General Ibrahim Babangida for not complying with certain guidelines and for other stated abuses. There were violent reactions to the annulment and eventually the military administration headed by General Babangida was forced to step aside. Another military government headed by General Abdulsalami Abubakar eventually handed over to a democratically elected government in 1999.

Since 1999 Nigeria has had uninterrupted civil rule for about eighteen years, the longest since the country got independence from Britain in 1960. The presidential election that was held on June 12, 1993 has been adjudged in some quarters to be the freest, fairest and most peaceful one in the history of Nigeria. This essay examines the constitutionality of some states declaring June 12 as a public holiday in commemoration of the June 12 election and poses a question whether the constitution of Nigeria and relevant laws give to states the power to declare public holidays to commemorate any event or merely to declare work-free days. On June 10, 2017, a national newspaper reported that the states of Ogun, Osun and Ondo declared Monday June 12, 2017 as public holidays to be observed in the three states by all the residents of the states. The publication stated that the declaration was for the purpose of commemorating the anniversary of the June 12 election. The purpose of the declaration as stated in the release is for the celebration of an election which the protagonists have adjudged to be the ‘freest and the fairest’ in the history of Nigeria. Be that as it may, the question that is posed in this article is whether by reference to the 1999 Constitution and relevant laws governing public holidays in Nigeria, a state governor has the power to declare any day as a public holiday in his state.

There are three major lists in a federation corresponding with the devolution of powers- the Exclusive List, the Concurrent List and the Residual list. Under the Exclusive List, only the Federal Government has power to legislative on the items enumerated there. Under the 1999 Constitution there are sixty items under this list and they include items like Arms and Ammunitions, Banking, Currency, Defence, etc. The federal parliament has power to legislate on this items to the exclusion of the State legislatures. The Concurrent List contains items that both the federal and state legislatures have power to legislate upon. There are 38 items on this list under the 1999 Constitution. See part 1 of the First Schedule to the Constitution. The items on the list include education, health, agriculture, roads, power (electricity) etc. Altogether, the federal legislature would have the power to legislate on ninety-eight (98) items both on the Exclusive List and the Concurrent List. The implication of this is that we have an overbearing federal legislature with enormous power being wielded over the state legislature with regard to the distribution of legislative competence.

The Residual List contains items that are neither on the Exclusive List nor on the Concurrent List. Only the state legislature has power to legislate on items on this list. The Residual list consists of items like provision of markets and garages, naming of streets, etc. The Local Government Bye-Law falls under this category.

The consequence of a law being enacted outside the legislative competence of parliament in a constitutional democracy like Nigeria is that such a law becomes null and void to the extent of its inconsistency with the constitution.  In this case of public holidays, it is contained as item 51 under Part 1 of the First Schedule of the Exclusive Legislative List which means only the Federal Legislature could legislate on it. In the exercise of such power, the Federal government enacted into law the Public Holidays Act . Under and by virtue of this Act, the President is vested with the power to declare any day as a public holiday to apply throughout the federation. The President is empowered to do so by publication through notice to the public of a day or days designated as public holidays.  Will the state Governor have such a power using the same Act to declare any day as a public holiday through the same means?  The answer is not so explicit from the act in my opinion. This is borne out of the fact that section 1 of the Act specifically mentions some days to be declared as public holidays to apply throughout Nigeria. The public holidays listed in the schedule to the Act are all national holidays.  Some of these holidays are also religious holidays that are to be declared according to the rites of the adherents of such religions.

The power to declare a day as public holiday by the Governor of a state is not so explicit in my opinion under the Act. To buttress this argument, let us have a look at section 2(2) of this Act: “Subject to section 1 of this Act and subsection 1(1), the Governor of a State may by                public notice appoint a special date to be kept as a public holiday in the state concerned          or any part thereof, and any day so appointed shall be kept as a public holiday.”  The use of the phrase ‘subject to section 1 of this Act and subsection 1 of this section’ presupposes that the Governor can only make the above declaration subject to the exercise of such power by the President of Nigeria with respect to the holidays mentioned in the schedule to the Act. Thirdly the Governor can only declare a day as public  holiday if there is a law empowering the governor to do so.

• Dr. Oyende is a lecturer in the Faculty of Law, Lagos State University, Ojo.