Legal Nuggets (52): Offence of Kidnapping and The Competence of a State House of Assembly.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI

NNAH vs. THE STATE(2019)LPELR-47207(CA)

Whether the offence of kidnapping is a matter within the competence of a State House of Assembly

"The second issue challenges the constitutionality of the law under which the appellant was tried and convicted to wit; the Akwa Ibom Internal Security and Enforcement Law, 2009. Before any person can be charged with an offence and convicted for the commission of that offence there must be a written law which can be referred to. Thus, the law must be enacted by the National Assembly or by the State House of Assembly, or a law made by the Local Government Authority or by bye-law which is made pursuant to another law. In addition, the written law should prohibit an act or mandate the performance of the act and same must provide punishment for the transgression either in that law or another written law. See OGBOMOR V. STATE (1985) 1 NWLR (Pt. 2) 223. In ONI V. FAYEMI (2013) 12 NWLR (Pt. 1369) 431 at 457, the Supreme Court has held that the Constitution of the Federal Republic of Nigeria 1999, as variously amended is the ultimate yardstick for determining the validity of any act or decision in relation to any law in the country. Thus, the Court is bound by the doctrine of separation of powers under which the business of law making is in the exclusive domain of the legislature made up of the upper and lower chambers of the National Assembly as well as State Assemblies.

The appellant's main contention here is that it is ultra-vires the power of the Akwa Ibom State House of Assembly to legislate on the subject matter of kidnapping as same is within the domain of the National Assembly relying on Item 2 of the Exclusive legislative list. It was also the appellant's contention that terrorism, kidnapping and hostage taking are matters covered under the Terrorism (Prevention) Act, 2011. It is settled that by the doctrine of covering the field where the National Assembly has enacted a law on a particular subject, a State House of Assembly cannot enact a law on the same subject which is inconsistent with the provisions of law enacted by the National Assembly.
The provisions of Item 2 part 1 of the Second Schedule of the Exclusive Legislative List empower the National Assembly to make laws on Arms, ammunition and explosives. Also Item 68 thereof, gives the National Assembly powers to make laws on any matter incidental or supplementary to any matter mentioned elsewhere in Exclusive Legislated List. A careful perusal of the 66 items listed in the Exclusive Legislative Lists reveals that kidnapping is not one of them. My understanding of Item 68 of the said Exclusive legislative list is that it provides a window for the National Assembly to legislate on ancillary or incidental matters to any of the listed items. For instance, terrorism is nowhere listed but the National Assembly incorporated it first in Section 40 (a) of the EFCC Act and subsequently under a separate and distinct enactment that is Terrorism (Prevention) Act 2011, perhaps using the umbrella of item 2 thereof. The next germane question is whether kidnapping is a recipe of terrorism to which the Akwa Ibom State House of Assembly by the doctrine of covering the field could not have enacted the extant Internal Security and Enforcement Law. To kidnap is to seize and detain a person unlawfully and very often for ransom. Terrorism on the other hand is the deliberate commission of an act of violence to create an emotional response through the suffering of the victims in furtherance of a political or social agenda. The two may have similarity in terms of characteristics but they are not mutually the same. Assuming the National Assembly has in the exercise of its powers under item 68 of the Exclusive Legislative List enacted a law on kidnapping, certainly no State Assembly can going by the doctrine of covering the field also legislate on the same subject matter. This is however not the case here.

I have also gleaned over to the 30 items listed in the Concurrent Legislative Lists as contained in Part II of the Second Schedule to the 1999 Constitution and no reference is made to the subject matter of kidnapping. I cannot but agree completely with the submission of the learned counsel for the respondent that the subject matter of kidnapping is within the realm of the residual matters to which the State Assemblies can competently legislate upon.

In EMELOGU V. THE STATE (Supra), the appellant was charged with, tried and convicted of the offence of armed robbery in the Imo State High Court contrary to Section 1 (2) (a) of the Robbery and Firearm (Special Provisions) Act No. 47 of 1970 and was sentenced to death. On appeal he contended inter alia that the offences were Federal offences and that the Attorney General of Imo State lacked the competence to prosecute such offences. Appellant also challenged the applicability of the rules of procedure applicable to Imo State in criminal cases to the offences created under the Act. The Supreme Court was very emphatic that even though the provisions of Section 6 of the Robbery and Firearms (Special Provisions) Act No 47 of 1970 has been repealed by the Federal Republic (certain consequential Repeals etc) Decree No 105 of 1979, by virtue of Section 239 of the 1979 Constitution, the Criminal Procedure (Miscellaneous Provisions) Edict 1974 of the East Central State become an existing law of Imo State and was the applicable law to the trial of offences under the Robbery and Firearms (Special Provisions) Act No 47 of 1970. By and large, kidnapping is a matter within the competence of a House of Assembly and same having been legislated upon by the Akwa Ibom State House of Assembly; the trial Court retains the jurisdiction of trying the appellant.

The second issue is also resolved against the appellant." Per SHUAIBU, JCA.(Pp.22-26,Paras.A-F).

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