Lately, Nigeria has been enmeshed in a firebox of insecurity leading to scores of deaths of innocent civilians, foreigners, some members of the nation’s security personnel, elected officials and many government workers. The insecurity challenge has assumed formidable dimensions forcing the country’s political and economic managers and, indeed the entire nation, to rue the loss of their loved ones, investments and absence of safety in most parts of the country.
The number of violent crimes such as kidnappings, ritual killings, carjackings, religious killings, ethnic clashes, armed banditry and others has increasingly become unbearable in the country.(1) Recent report shows a hike in the number of kidnapping in the nation(2) aside the increase in the number of rape cases and hoodlums activities.(3)
Considering these increased insecurities in the nation, scholars and government official has applauded the innovation of NIN SIM integration as a weapon to end insecurity in the Nation.(4) Thus it is pertinent to examine if the SIM NIN integration is justiciable and could be recognised by the Nigerian courts.
Justiciability however mean any issue that can be examined in court of justice, subject to action in a court of justice, tried in a court of law for presentation of real interests instead of hypothetical or abstract ones.(5) Cognizability, on the other hand, implies matters that could be recognised as legal matter and adjudicated by the court of law.(6)
THE JUSTICIABILITY AND COGNIZABILITY OF NIN SIM INTEGRATION IN THE AGE OF INCREASED INSECURITY IN NIGERIA
An effective national identity management system is critical to the development and security of any nation. It provides a universal identification infrastructure for a country and enables access and means to confirming the identity of individuals residing in a country. Thus, adequate intelligence gathering and a functioning internal and external security architecture will be difficult to achieve in the absence of a robust national identity system (which is usually comprised in a central identity repository or database).
In recognition of the foregoing, the National Identity Management Commission (“NIMC”) was established in 2007 pursuant to the NIMC Act7 to create, manage, maintain and operate a unified National Identity Database for Nigeria.8 To this end, the NIMC, which replaced the defunct Department of National Civic Registration, is required to carry out the registration of all registrable persons in Nigeria and thereafter issue a General Multipurpose Identity Card (“National Identity Card”) to each registered person.9
The Act was created pursuant to the power of the National Assemble to create law for the peace, order and good governance of the state in respect to matters in the Exclusive List (10) and matters in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule of the Constitution to the extent prescribed in the second column opposite thereto.11
It must be noted that Item 8, in the exclusive list12 gives the National Assembly the power to make law for the establishment of machineries for the registration of the citizen of the country. Thus making the establishment of the National Identity Management Commission (NIMC) valid. In order to give enforcement to the provision of the NIMC Act,13 the National Identity Management Commission issued the Mandatory Use of the National Identity Number Regulation.14 As provided in Section 4(1) of the NIN Mandatory Use Regulations, the NIMC is required to ensure strict compliance with the NIN requirement under the NIMC Act, NIN Mandatory Use Regulations and other regulations made pursuant to the NIMC Act, as well as Nigeria Biometrics Standards Regulations, 2017.
Considering the success in the registration by the commission and the issuance of the NIN, the Nigerian Communication Commission alongside the National Information Technology Development Agency issued a directive inter alia that all operators are to require their subscriber to provide a valid National Identification Number to update SIM registration record.15
According to President Mohammadu Buhari, the synchronization of the National Identification Number (NIN) with SIM cards (NIN–SIM) by Nigerians would further strengthen the fight against the worsening insecurity in the country. It was further noted that with the NIN–SIM synchronization, Nigerians and legal residents in the country can be properly identified as this would provide the impetus for effective planning and cover one of the weaknesses in the country’s security architecture.16
The integration of the NIN with the SIM cards has been applauded to be in line with the global best practices of developing a centralized identity management database which can facilitate the reduction in the rate of crime as cases of impersonation and other financial frauds amongst others. However, despite the importance attributed to the NIN SIM integration as a means to an end for insecurity in Nigeria, it will be to no effect without being created with a legally valid directive which will enhance its recognition and enforceability in the court of law. This is because the court will not enforce; and action will not lie on any law or directives that is inconsistent with the constitution.17 It must be noted that the directive for NIN SIM integration was issued sequel to the Nigerian Communication Act18 which specifies the role of the minister to include the formulation, determination and monitoring of the general policy of the communication sector.
However, considering section 4(1) of the NIN Mandatory Use Regulations19 and Section 27 of the NIMC Act,20 neither any portion of the Act nor the regulation made pursuant to the Act states that the NIN can be mandatory used for telecommunication. In addition, despite the fact that section 4(1) of the Mandatory Use of the National Identity Number Regulation makes provision for other regulations made pursuant to the NIMC Act; up till present, no regulation has been made which support the use of the NIN in the telecommunication industry. Thus, it might be difficult to justify the justiciability of the NIN SIM integration based on such grounds.
It must further be noted that the mandatory SIM NIN integration directive has sparked privacy concerns as it may undermine the ability of citizens to communicate anonymously and associate with others, thus infringing upon rights to privacy,21 freedom of association22 and freedom of expression.23 Moreover, any law or directive which is inconsistent with the provision of the constitution will be void to the extent of its inconsistency and will be non–justiciable and non–cognizable.24
Also, aside from the claim that the NIN SIM integration would further strengthen the fight against the worsening insecurity in the country, the Ministry had not been able to give a substantial reason for giving such directive. It must however be noted that it is a trite rule of legal jurisprudence that a law or legal directive must be reasonable, just and universally acceptable by the inhabitants of the society it seeks to govern. A law must also not occasion any form of mischief or cause untold hardship on the populace.
The NCC’s new directive when considered under this jurisprudential microscope, is an exercise in impracticability and unreasonableness. It lacks empathy and consideration and is the absolute opposite of what good law should portray and hence could not be justiciable or cognizable. However, despite the aforementioned arguments which may render the NIN SIM integration non–justiciable and non–cognizable, even despite its importance to the fight against insecurity in Nigeria, it must be noted that its cognizability and justiciability can be upheld on the grounds that the directive was made pursuant to the Nigerian Communication Act25 which is a law validly enacted by the National Assembly.26 And based on the power of the of the Minister of Communication and Digital Economy to make such directive.27
Also, though telecommunication is not part of the areas where Mandatory Use of NIN is required,28 however, integration of NIN has been made part of the telecommunication industry rule. In an appeal recently filed before the Supreme Court in the case of APC & Anor. v Marafa & 17 Ors29 where a preliminary objection was raised on the ground that, by the provisions of Section 1(1)(u) of the NIN Mandatory Use Regulations and the NIMC Act; the use of the NIN is a precondition for filing and registering criminal and civil actions in courts or other arbitration processes in Nigeria.
In overruling the preliminary objection, the Supreme Court held that Section 27 of the NIMC Act and its regulations are not part of the rules of the court and can therefore not apply to the processes filed there–in. however, if it is part of its rule, even if it is not stated in any part of the NIMC Act, it will still be applicable. In addition, Section 45(1) of the Constitution30 states that: Nothing in section 37, 38, 39, 40 and 41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society
(a) In the interest of defence, public safety, public order, public morality or public health or
(b) For the purpose of protecting the rights and freedom of other persons
The implication of this is that, the fact that the NIN SIM integration might violate the freedom of privacy, association, or expression of certain persons does not invalidate the directive or render it non–justiciable and non–cognizable since it has been validly justified on its purpose for public safety and order in the age of increased insecurity in Nigeria.
Considering the arguments that may render the NIN SIM integration non–justiciable and non–cognizable vis–a–vis the legal propositions and arguments which renders the NIN SIM integration justifiable and cognizable. It could be validly concluded that the directive made pursuant to the NIN SIM integration is valid and thus the NIN SIM integration is justiciable and cognizable based on its major purpose which is to ensure public safety and order in the age of insecurity in Nigeria pursuant to the provision of section 45(1) of the Constitution.31 It is thus believed that the relevant agencies would actually adopt the database for the purpose of enhancing public safety and order in Nigeria.
1 Onifade Comfort ‘Addressing the Insecurity Challenge in Nigeria: The Imperative of Moral Values and Virtue Ethics’, (2013) 3(2) Global Journal of Human Social Science and Political Science <https://core.ac.uk/download/pdf/16701001.pdf> accessed 25 May 2021.
2 Festus Iyorah ‘Nigeria Booming kidnap–for–ransom Enterprise’ Aljazeera (23rd of March, 2021)
<https://www.google.com/amp/s/www.aljazeera.com/amp/news/2021/3/23/nigeria–booming–kidnap–for–ransom–enterprise–threatens–security> accessed 25 May 2021.
4 Peter Oluka ‘Nigeria: How National Database Can be used to fight Insecurity’ (Techinfluencers, 28 April
2021) <https://www.google.com/amp/s/techeconomy.ng/2021/04/nigeria–how–national–database–can–be–used–to–fight–insecurity–sodiya/amp/> accessed 25 May 2021.
5 E. Azinge, Justiciability and Constitutionalism: An Economic Analysis of Law (NIALs, 2010) 245.
6 B. A. Garner (ed); Black’s Law Dictionary, (9th edn, West, Thomas Reuters 2009)
7 National Identity Management Commission Act No. 23 of 2007
8 ibid, s 5(a).
9 ibid, s 5(d).
10 1999 Constitution of the Federal Republic of Nigeria (as amended), s 4(2).
11 1999 Constitution of the Federal Republic of Nigeria (as amended), s 4(4).
12 Second Schedule, Exclusive List of the Constitution of the Federal Republic of Nigeria (as amended)
13 National Identity Management Commission Act No. 23 of 2007
14 Mandatory Use of the National Identity Number Regulation 2017, Gezette No.121, Vol 104
15 NCC Media Team, ‘Press Statement: Implementing of New Sim Registration Rule’ (2020) <https://www.ncc.gov.ng/media–centre/new–headlines/928–press–statement–implemention–of–new–sim–registration–rules> accessed 25 May 2021.
16 Samson Abayomi ‘Nigeria to Tackle Worsening Insecurity Crisis through NIN–SIM Synchronization’ (2021) <https://www.naija247news.com/2021/05/08/nigeria–to–tackle–worsening–insecurity–crisis–through–nin–sim–synchronization/> accessed 25 May 2021.
17 Sanni Abacha v Gani Fawehunmi (1996) 9 NWLR (pt. 475) 710.
18 Nigerian Communication Act 2003, s 23(a).
19 Mandatory Use of the National Identity Number Regulation 2017, Gezette No.121, Vol 104.
20 National Identity Management Commission Act No. 23 of 2007.
21 1999 Constitution of the Federal Republic of Nigeria (as amended), s 37.
22 1999 Constitution of the Federal Republic of Nigeria (as amended), s 40.
23 1999 Constitution of the Federal Republic of Nigeria (as amended), s 39(1).
24 1999 Constitution of the Federal Republic of Nigeria (as amended), s 1(3).
25 Nigerian Communication Act 2003, s 23(a).
26 1999 Constitution of the Federal Republic of Nigeria (as amended), s 4(2); Second Schedule, Exclusive List of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
27 Nigerian Communication Act 2003, s 23.
28 National Identity Management Commission Act No. 23 of 2007, s 27.
29 (SC. 377/2019); LOR (24/05/2019) SC
30 1999 Constitution of the Federal Republic of Nigeria (as amended)