The constitutionality of declaring June 12 public holiday (2)

THE Act does not expressly give such power with respect to the categories of holidays mentioned in the schedule. This position is also fortified by the purpose of the Act which is stated as follows: “An Act to repeal the State Laws on public holidays and to make provisions for the whole of the Federation for public holidays and other related matters.”  Clearly then, it is the intendment of the Act to repeal all the state laws on the subject of public holidays. The constitutional doctrine of covering the field declares that once there is a federal act which covers a subject matter, all state laws on this subject matter become otiose. Will a state Governor derive power to declare public holiday if a state legislature gives the power? My answer to that is that the current 1999 Constitution does not give such power to state Houses of Assembly because Public Holidays is under the Exclusive List. The way out is for the constitution to be amended and for public holidays to be placed under the Concurrent List.

The June 12 election as stated earlier was perceived by the local election monitors and international observers as being largely free and fair. A free and fair election is regarded as the expression of the sovereign will of the people. The 1999 Constitution declares: “Sovereignty belongs to the people of Nigeria from whom this constitution derives its      authority.” For the people to freely express their choice of a leader to lead them and for such election and its outcome to be annulled without justification is an assault on this sovereignty. The repression and mauling of the protesters that arose spontaneously after the annulment was also an inhuman act and a violation of the provisions of the constitution that declares that all government actions shall be humane.  The military dictatorship then trampled on all the tenets of democracy  which are the sanctity of elections that were conducted under a free and fair atmosphere, the freedom of the press, the right to freedom of movement and association, the right to hold and impart ideas and opinions etc.

The annulment of the June 12 election and the imposition of an unelected Interim Government by the military dictatorship violated the ideals of democracy. This is the symbolism of June 12. The symbolism of June 12 can be likened to the best definition of Democracy which was given by President Abraham Lincoln at Gettysburg.  Chief MKO Abiola, the presumed winner of that election was arrested by the military dictatorship of General Sani Abacha and imprisoned for treason. He eventually died in custody in June 1998.  Since MKO Abiola’s death however, no national monument has been named in his honour, let alone recognise his role as the father of democracy which the country is now enjoying. What is more poignant about the whole episode is that the civilian government that succeeded him named May 29 of every year as the Democracy Day and declared it to be a public holiday to the observed throughout Nigeria. This is contained in a Federal Republic of Nigeria Official Gazette which declares as follows:  “I, Olusegun Obasanjo, President of the Federal Republic of Nigeria hereby appoint as follows, that is the 29th day of May as Democracy Day and shall be observed as public holiday throughout Nigeria. Dated this ____ day of _____2000.”   There is no significant event that occurred on May 29 other that it was a day the military relinquished power to a democratically elected government. There would have been no May 29 hand over without a June 12 election.

Expressio Unius Est Exclusio Alterius (The Express inclusion of one thing implies the Exclusion of the other)  This is a cannon of statutory interpretation which means that once the is an express inclusion of one thing, the one that is not mentioned is excluded.  The Gazette quoted above expressly mentioned that May 29 shall be observed as Democracy Day throughout Nigeria which by implication excluded the mention of June 12 as Democracy Day. The implication of this is that June 12 is relegated to the background and not given its pride of place. This is unfortunate.  The declaration of the South West Governors to commemorate June 12 by declaring it as a public holiday is therefore in order. What the Governors should now do as a matter of urgency is to pass a bill into law to make June 12 an annually holiday in the states. This should also be followed up with series of activities to mark the day with public lectures and rallies all targeted at immortalising the heroic struggle of Chief MKO Abiola, his wife and all that died in the course of the struggle for the actualisation of June 12 election mandate.

In conclusion, the devolution of powers under the Nigerian federation is skewed in favour of the Federal  Government of Nigeria to the detriment of the states. This is made more poignant in the declaration of public holidays which is conspicuously made the exclusive preserve of the Federal Parliament. This is not supposed to be so. Although the current constitution gives the power to legislate on public holidays to the federal parliament (National Assembly), this writer believes that the state Houses of Assembly ought to have the constitutional power to pass a law to declare public holidays within their state. The states that desire such powers should initiate a bill to pass such laws without delay. By so doing the states will assist the federal government to practice true federalism.

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