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Chukwuma Onyekwelu: National Assembly cannot make law on national anthem



By Chukwuma Cosmas Onyekwelu*

The National Assembly was established under Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered).

It is vested with the Legislative powers of the Federal Republic of Nigeria, and it shall have power to make laws for the peace, order, and good governance of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule of the Constitution.

Some of the items in this List, under the Second Schedule, Part 1, include: Arms, Aviation, Currency, Drugs and Poisons, Mines and Minerals, Passports and Visas, Posts, Telegraphs and Telephones, Prisons, Railways, Ammunition and Explosives, Bankruptcy, Banks, Citizenship, Copyright, Patents and Trade Marks, Creation of States, Customs and Excise Duties, Defence and Military, Immigration, Insurance, Labour, Trade or Business Names, Powers of the National Assembly and the Privileges and Immunities of its Members, Regulation of Political Parties. We shall revisit this again, but my dear reader, please pause here and search for “National Anthem” in the Constitution.

For a moment, let us set some background for context. Over the past week, Nigerians have been discussing the National Anthem Act, 2024. An “Act to Provide for the National Anthem of Nigeria, and for Matters Related,” which was passed by the National Assembly and Assented to by the President on 29th May, 2024. For clarification purposes, I am not writing against the National Anthem Act, 2024. I am only challenging the legislative power and processes that brought it about.

At the chambers of the House of Representatives, the law maker who sponsored the Bill remarked, “I have taken time to look at the old anthem and the new, and as a Nigerian who has been involved in the struggle to make Nigeria a better place … I believe that the old anthem, encompasses, contains, exudes the kind of energy, resourcefulness, and a sense of vision that I believe is good for Nigeria,”. In a rethought, a minority lawmaker reportedly asked “While it is our function to make laws, but for every law there must be a spirit to it. If we are asked, what is the essence of this law. What value will it add to us as a nation?

Nevertheless, it is equally reported that President Bola Tinubu had in the past advocated the adoption of the old National Anthem in place of the current anthem. He is quoted to have said “Abandoning the post-independence anthem, which arguably evoked a strong spirit of patriotism and brotherliness, to compose a very drab replacement, is far less inspirational,” at a function in 2011. Perhaps, it is now apparent the work on reintroducing the National Anthem “Nigeria We Hail Thee” was accelerated, and aimed at satisfying the wishes of the President, using it to celebrate his first year in office. So, the speculation that the 10th National Assembly is at the President’s beck and call is materializing?

The paragraph above could be the answer to why there was no due diligence, no adherence to laydown legislative processes, and lack of proper scrutiny in the passage and assent to the law. This is happening at a time when the President, the Vice-President and the Chief of Staff to the President have legislative experiences. One is concerned that the Honourable Attorney General of the Federation who is supposed to guide the federal government in this regard has acquiesced without paying attention to the obvious Constitutional breach and its far-reaching implications.

For something that is meant to be a national symbol, why the urgency? No nationwide consultation to galvanize national consciousness? No public hearing! For the 10th National Assembly that prefers to call itself “the Peoples Parliament”, not minding the misnomer and the inappropriate usage of parliament, why sidestep the people concerned at this crucial episode in history?

The Act makes it mandatory for the anthem to be recited at some of the following events: Opening and closing ceremonies of Federal Executive Council, and State Executives Council meetings. Opening and closing of sittings of Legislative Houses in Nigeria, Constitutional oath-swearing ceremonies, Flag-raising ceremonies, Major celebrations, major award ceremonies, major commemorative ceremonies, national memorial ceremonies and the like, which are organized by MDAs, Major diplomatic activities, Major sporting events, Other occasions as may from time to time, be determined by the minister responsible for education with the consent of the president. Furthermore, clause four forbids the alteration of the lyrics of the anthem.

It is declared under clause 4 that “The Performance and singing of the national anthem shall follow the lyrics prescribed by the Federal Government of Nigeria,”. It equally mandates that “the Ministry responsible for information shall organise the review and approval of the standard for performance of the national anthem and record the official recording of the national anthem to be played. These are not new to Nigerians! It appears we now have a National Assembly that wants to collectively give a literary display of the meaning of the expression playing to the gallery. But the gallery is not amusing at all this time!

Now, let me re-emphasis the import of the title to this piece. The National Assembly lacks the Constitutional power to legislate on the National Anthem of Nigeria. I hope by now my dear reader has thoroughly searched through the Second Schedule, Part 1, the Exclusive Legislative List. Did you see “National Anthem” in the list? Is there any item, any other wording near “Anthem” in meaning? Such is not provided for in the Constitution. Should it be seen as a Constitutional lacuna, is it not correct that an alteration of the Constitution would be required in the first instance before any such power to so act is exercised? In effect, there is no other place from where the National Assembly could have drawn power to enact the National Anthem Act 2024. You cannot give what you don’t have, and you cannot lay something on nothing and expect it to stand!

From the foregoing it is safe to say the National Anthem Act, 2024 is unconstitutional, simply because the constitution has not provided for it. However, section 24 (a) of the Constitution states “It shall be the duty of every citizen to – (a) abide by this Constitution, respect its ideals and its institutions, the National Flag, the National Anthem, the National Pledge, and legitimate authorities. I stressed the phrase “National Anthem” because that is the only place one could find such in the entire document containing the Constitution. It is a duty imposed on the citizens, but there is no provision on how the anthem may be issued.

Assuming the National Assembly is vested with the power to act here, it breached its legislative processes in doing so. Already, some citizens have declared opposition to the reintroduced anthem. A group known as the Association of Legislative Drafting and Advocacy Practitioners, (ALDRAP) has indicated interest in approaching to Federal High Court to challenge the Act, citing among others, that “The expenditures associated with the National Anthem Act, 2024 (which was done on 29th May 2024 and on other dates) were not captured in the Budget of the Federal Republic of Nigeria Act, 2024 (as can be attested to by the Accountant-General of the Federation) and therefore the said National Anthem Act, 2024, should be declared illegal.” It added that going by Supreme Court decision in Attorney-General of Bendel State vs. Attorney-General of the Federation (1981) “any law that fails to comply with each stage of the legislative procedures of law-making as prescribed under the 1999 Nigerian Constitution, would be declared null and void and of no effect.”

I hereby submit that it is not the duty of the National Assembly to make any law on the National Anthem. The right thing to do now is that the federal government should consult the records of history on how the previous anthems were composed, adopted, and used as National Anthems. There is no record it was ever made through the Legislature, except in 2024!

*Chukwuma Cosmas Onyekwelu is the founder of Wunderbar Global Legal Practice. He is accessible on e-mail: [email protected].


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