Zaria (Zazzau) Emirate Succession Controversy

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Introduction

Seldom in the recent history of one of the oldest Fulani Kingdoms in Nigeria – Zaria (or, more correctly, Zazzau) – has the succession to the throne of Emir been as controversial as the one which trailed the demise of HRH Emir Shehu Idris on the 20th day of September, 2020. It degenerated to the extent that one of the ‘losing’ Princes, the Iyan Zazzau, Alhaji Bashari Aminu, reportedly issued a writ at the High Court to challenge the appointment by Governor Nasir El-Rufai of Ambassador Ahmed Nuhu Bamalli as the successor to the deceased Emir.

While the situation surrounding the litigation (whether it has actually been filed or not) remains unclear; what is beyond doubt is that it was motivated by the disappointment of the ‘Plaintiff’ at being overlooked by the Governor in preference for Ambassor Bamalli, even though three out of the five kingmakers reportedly voted for the former.

Statutory Overview

The aggrieved Prince reportedly based his challenge, on the alleged violation of the provisions of Section 3(1) of the State Chiefs (Appointment and Deposition) Law. Is he right? We shall presently attempt some answers, starting with the States Chiefs Law. Before going ahead, however, it is important to bear in mind that the object of the Chiefs Law – as it’s title suggests – is “to provide for the appointment and deposition of Chiefs”. In other words, it affects the proprietary interests of would-be Emirs, incumbent Emirs and their Kingmakers. This means that the Law is required to be strictly construed (that is, fortissimo contra proferentes). See NDOMA-EGBA v CHUKWUOGOR (2004) All FWLR Pt. 217 Pg. 735 @ 755H, S.C. and EZE v GOV. OF ABIA STATE (2010) 15 NWLR Pt. 1216 Pg. 324.

Now, to the law proper. While Section 2(1) thereof defines a “Chief” as “any person for the time being recognised by the Governor as a Chief and includes an Emir”, Section 3(1) – relied upon by the Iyan Zazzau – provides that: “Upon the death, resignation or deposition of any chief or of any head chief… other than of a kind referred to in Section 4, the Governor may appoint as the successor of such Chief or head chief any person selected in that behalf by those entitled by customary law and practice to select in accordance with customary law and practice”.

Section 3(2) and (3) of the Law provide as follows, respectively:
– “where no selection is made before the expiration of such interval as is usual under customary law and practice, the Governor may himself appoint such person as he may deem fit and proper to carry out such duties incidental to the chieftaincy as it may be necessary to perform”;

– “In the case of any dispute, the Governor, after due inquiry and consultation with persons concerned in the selection, shall have the final say as to whether the appointment of any chief or head chief has been made in accordance with customary law and practice”

Analysis

It can be seen that the law recognises and allocates two sets of powers in the appointment of an Emir: to the Kingmakers (“those entitled by customary law and practice to select in accordance with customary law and practice”) on one hand, and to the State Governor on the other. The question is: what is the precise scope of their respective powers? Are they mutually-exclusive or are they complementary? A close perusal of the relevant provisions reveals that, while it is the duty of the Kingmakers to recommend a suitable candidate or candidates for appointment as Emir to the Governor, the latter possesses the sole prerogative of making the actual appointment. In other words, their respective powers are complementary. However, this view appears to hold water only where the choice of the Kingmakers is non-controversial (or, to use the words of Section 3(3) of the Law, where there is no “dispute” about their choice). If there is, that provision gives the Governor the right of having “the final say” in the choice of Emir.

Did Governor El-Rufai appoint Ambassador Bamalli, in the circumstances envisaged by Section 3(3) of the Law? Was His Royal Highness’ appointment preceded by a dispute as to the choice or choices of the Kingmakers? This is the crucial question, as, if there was no such dispute, the provisions of Section 3(3) would have been inapplicable, and they might not avail. However, this is where the situation gets a bit murky (and, indeed, controversial) because, reports suggest that the Governor had previously rejected the recommendations of the Kingmakers, on the ground that their deliberations excluded at least two interested Princes.

It also transpired that, in the aftermath of that rejection, the Kingmakers conducted no fresh poll (to include the new aspirants), but simply reviewed the latter’s written applications, and reportedly affirmed their previous recommendations. Did this position, if true, invalidate the process? Did it entitle the Governor to conclude that a dispute had thus arisen, which entitled him to intervene? At all events, did that intervention justify him, in the circumstances, in naming Ambassador Bamalli as the new Emir? Does resolving a dispute in the selection of an Emir by the Kingmakers, authorise the Governor to unilaterally appoint an Emir – let alone one who was not short-listed by the Kingmakers? Did the Governor exceed his powers under the Law, or did he usurp the powers of the Kingmakers?

In answering the foregoing questions, it will be pertinent to bear in mind the provisions of Section 31 of the Interpretation Law of Kaduna State which stipulate that: “where in any law, power is given to any person to enforce the doing of any act or thing, all such powers shall be understood to be given as are reasonably necessary to enable the person to do or enforce the doing of the act or thing”:. See ATT-GEN. OF CROSS RIVER STATE v OJUA (2011) All FWLR Pt. 594 Pg. 151 @ 169F. Was appointing Emir Bamalli directly (as Governor El-Rufai did), reasonably necessary to enable him to exercise the power given to him by Section 3(3) of the Law of having “the final say” in resolving the presumed dispute over the appointment of the Emir? That is the question.

Once again, in answering this question, it will be worthwhile to bear in mind the admonition of the Apex Court that: “one of the basic principles of interpretation of our Constitution and statutes is that, the law-maker will not be presumed to have given a right in one section and taken it away in another”: OSADEBAY v ATT-GEN. OF BENDEL STATE (1991) 1 NWLR Pt. 169. pg. 525. Beyond this, however, it does appear that both of the foregoing precepts depend on the construction which is given to the words “may” and “shall” used in relation to the powers conferred on the Kingmakers and the Governor, in the provisions of Section 3(1) & (3), respectively, of the Chiefs Law.

In this regard, it is settled that, there is no hard and fast rule whether those words convey either a permissive or a peremptory mandate, respectively. That is, whether they are merely directory (in the case of “may”) or mandatory (in the case of “shall”). As the Apex Court held in AMOKEODO v I.G.P. (2001) FWLR pt. 33 pg. 344 @ 358F: “In each case, the intention of the Legislature must be ascertained by looking at the whole scope of the statute, and, in particular, at the importance of the provisions in question in relation to the general object to be secured.”

Conclusion

The controversy that trailed the appointment of HRH Ambassador Ahmed Bamalli as the Emir of Zazzau, is clearly rooted in the vagueness of the State’s Chiefs Law and its lack of detail in providing for the situation which has now arisen. While the Iyan Zazzau might appear to have a genuine grievance (given his apparent preference by the Kingmakers), however, who can – in all conscience – begrudge the Governor’s choice, whose dynasty has reportedly been shut out of the Emirship for the past 100 years?

In terms of a solution, the situation appears to transcend the fine print or delicate nuances of either the Chiefs Law, or any other relevant statue or judicial precedent. Given the nature of the particular traditional institution involved (where all the aspirants and the eventual winner are reportedly inter-related either by marriage or otherwise), the way out would seem to be for all the contenders to toe the path of harmony, by regarding the Governor’s choice as a win-win for all – until that is, such a time when a new and more comprehensive Chiefs Law is enacted. Hopefully, this will address the glaring short-comings in the present one – especially in relation to the powers of the Governor vis-à-vis those of the Kingmakers, in the appointment of new Emirs. This would accord with both tradition and custom, as well as the Governor’s pre-eminent position as the Chief Executive of the State pursuant to Section 176(2) of the 1999 Constitution.