Kenya has been in the news for a couple of weeks due to the intense protests by the youths of the country against the government—a protest that was in response to a proposed Finance Bill that significantly increased the tax burden of the people. While the government has acceded to the demands of the people by agreeing not to proceed with the 2024 Bill, the victory of the protesters was further strengthened when the court of appeals nullified several sections of the Finance Act 2023 that taxed cryptocurrency transactions, declaring it unconstitutional as it did not meet the constitutional mandate of public participation in the legislative process. This is coming just about a year after Nigeria enacted its Finance Act 2023, which taxed cryptocurrency transactions. But the focus here is not on the relative impact of the digital tax laws of these two countries. Rather, this article focuses on the decision of the Kenyan Court of Appeal and its rationale for nullifying the Finance Act 2023—a constitutional matter that is of some relevance to the Nigerian situation.
Constitutional matters hold primacy in the rank of our laws, and any law that is found to be inconsistent with the constitution of the land will be declared null, void, and unconstitutional. This is the same with virtually every written constitution in the world. This is because the constitution, as the foundational law or grundnorm, is the vehicle through which the people transfer their sovereignty to the state and clothe the government with legitimacy to act as its representative. Acting as agents of the people who gave it power, the government, therefore, can’t be acting against its mandate. In this way, it may not encroach on the rights reserved by the people in the constitution. So, it wasn’t difficult for the Kenyan Court of Appeal to hold that the Finance Act was enacted contrary to the laid-down constitutional process. According to the Court, the challenged sections of the Act were nullified because “Parliament failed to provide reasons for accepting or rejecting public proposals during the public participation process, which is a constitutional requirement. This failure rendered the entire Finance Act, 2023, unconstitutional.”
This is interesting because the Kenyan Constitution, in Article 118(1)(b), mandates public participation in the legislative process. It provides that “Parliament shall facilitate public participation and involvement in legislative and other business of the Assembly and its committees.” This is not peculiar to Kenya alone. The South African Constitution has a similar provision, as it equally mandates public participation in the legislative process. Section 59(1)(a) provides that “The National Assembly shall facilitate public involvement in the legislative and other processes of the Assembly and its committees. It further provides in sub-section (2) that “The National Assembly may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.”
On the other hand, a similar provision is missing in the Nigerian Constitution. Although Section 62 and Sections 88–89 bear a semblance to the above Constitutional provisions of Kenya and South Africa, they acutely fall short in relative terms. Section 62 only mandates the National Assembly of Nigeria to constitute committees as part of the legislative process, while sections 88 and 89 confer quasi-judicial investigative powers on the National Assembly, including the power to compel anyone to appear before it pursuant to its powers of investigation. They do not mandate the National Assembly to conduct public hearings or to facilitate public participation in the legislative process. Section 60 even empowers the two Houses of the National Assembly to regulate their own procedures, including the procedure for summoning and recessing the House. This therefore leaves it at the discretion of the Houses to make hearings public or to facilitate the participation of the public in the legislative process.
The closest to mandatory public participation in the legislative process is found in section 14, which falls under the Fundamental Objectives and Directive Policy Of State (FODPOS), which the Constitution itself renders non-justiciable, i.e., incapable of being adjudicated upon by the courts.
Section 14(c) provides that:
(a) sovereignty belongs to the people of Nigeria, from whom government, through this Constitution, derives all its powers and authority; and (c) the participation of the people in their government shall be ensured in accordance with the provisions of this Constitution. (Emphasis mine.)
This provision is, however, handicapped by section 6(6)(c), which renders it non-justiciable.
Although Item 60(a) Part I of the Second Schedule to the Constitution empowers the National Assembly to make laws “to promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in this Constitution”, this power has not been exercised specifically in relation to section 14(c), therefore leaving section 14(c) out of the purview of justiciable rights in the event that the National Assembly fails to involve the public in the legislative process.
But there seems to be an argument that constituency consultation suffices for the purpose of public participation in lawmaking, as legislators can always have consultations with their constituents to know their feelings and opinions about proposed laws. Pursuant to its powers under Section 111 of the Constitution, the Revenue Mobilization Allocation and Fiscal Commission determine the salaries and allowances of legislators, not excluding administrative funds in addition to these. These funds are to run their offices, including constituency offices. Although a good initiative, this has not been utilized for its real purpose. The case of Hon. Aliyu & 5 Ors. v. Speaker, Kogi State House of Assembly & 3 Ors. reveals the beliefs and attitudes of typical legislators towards constituency needs. In this case, the claimants sued for payment of constituency allowance and severance benefit claims for themselves. The Court, however, ruled that a constituency allowance is for the benefits of constituents and not a personal emolument or entitlement of a legislator. And while legislators would usually claim to consult with the people they represent, this may not be true, or the consultation may be grossly inadequate and, thus, not reflective of the true wishes of the constituents.
The effect of dissatisfaction with the uninclusive legislative process was grossly felt in the change of the Nigerian national anthem in May 2024. The process that saw the bill introduced to the Houses and passed within the shortest possible period without as much as a legislative debate was bemoaned by many, most notably Chief Lateef Fagbemi SAN, the honourable Attorney General of the Federation. Before the passage of the bill, the Attorney General warned that the national anthem law should not be passed without adequate consultation with the people in the form of a plebiscite or referendum, which he posited was the global standard. According to the learned silk, “the essence of the foregoing is to secure the buy-in and confidence of the people and to ensure that the anthem meets their collective aspirations and suits their contemporary socio-political conditions.” Notably, the Attorney General’s position is informed by global standards and practices and not by constitutional standards. This is because, under the constitution, legislative debate and public participation are not requirements for the legislative process, unlike what is available in Kenya and South Africa. This grossly represents a paucity in our constitution in this regard.
Conclusively, it is appropriate to say that the growth of a nation’s democracy is hugely dependent on the political vivacity of its citizens. When citizens actively participate in government, it inevitably helps to sharpen governance, thereby improving democracy and the overall polity. It is based on this premise that the present author proposes a constitutional amendment to make public participation in the legislative process a constitutional requirement. It is strongly believed that this will greatly improve the legislative process, as citizens will be actively involved in the legislative process that produces the laws that affect their everyday lives. In the meantime, however, legislative houses are enjoined to make it a point of duty to carry the people along in the legislative process, inviting opinions and dissents from concerned groups on proposed legislation and giving reasons for acceptance or rejection of the same. This way, the laws can truly reflect the will of the people. Additionally, the people will have a sense of belonging to the process that births the country’s laws.
Source: BarristerNG
