YEAR 2022

THE UNIVERSITY OF NIGERIA STUDENTS BAR ASSOCIATION

THE SECOND YEAR LEGAL DEBATE COMPETITION

THE DEBATE ON WHETHER THE PREFERENTIAL TREATMENT BY

THE CONSTITUTION IS A CONTRAST TO ITS PROVISION ON
EQUALITY OF ALL PERSON BEFORE THE LAW

COURT ROOM 2

LEGAL MEMORANDUM FOR:

PROPOSITION TEAM- MAGNAASSOCIATES CHAMBERS

BROUGHT PURSUANT TO SECTION 15 OF THE OFFICIAL RULES OF

THE 2020/2021 UNSBA INTER—CHAMBERS COMPETITIONS (AS

AMENDED)

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 TABLE OF CONTENTS

Title Page—————————————————————--—-0
Table of Contents——————————————————--—-1
Index of Authorities______________________________________2
Debate Question——————————————————––-----3
Question Presented——————————————————-----4
Body of Argument—————————————————–--------5
Summary of Argument———————————————
Address of Service——————————————————

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 INDEX OF AUTHORITIES

STATUTES

Constitution of the Federal Republic of Nigeria, 1999, as Amended.

Section 26(1) (2)—————–————————

CASE LAWS

TEXTS

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 DEBATE QUESTION

PREFERENTIAL TREATMENT BY THE CONSTITUTION IS A CONTRAST

TO ITS PROVISION ON EQUALITY OF ALL PERSON BEFORE THE LAW

TEAM A: PROPOSING

TEAM B: OPPOSING

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 QUESTIONS PRESENTED

1.

DOES THE CONSTITUTION PROVIDE FOR EQUAL RIGHTS FOR ALL

PERSONS

2.

DOES PREFERENTIAL TREATMENT INTRODUCE ITSELF IN THE

CONSTITUTION?

3.

WHETHER PREFERENTIALTREATMENT IS AGAINST EQUALITY OF RIGHTS

4.

WHETHER THE CONSTITUTION NEEDS CHANGES IN THE AREA OF

PREFERENTIAL TREATMENT

BODY OF ARGUMENT

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1.0 INTRODUCTION
The constitution as a foundation is presupposed to be a resting place for all and
sundry-both the makers and the takers. Being the supreme law, it cannot serve only
the privileged few, rather, as a leader, ensure the equal rights of all those who come
under it. The Rule of Law, being the basis of the very democratic society we
operate, pioneers for the equality of all persons before the law. Can we then say
that we practice a democracy without legal equality? It is the firm submission of
the first team that preferential treatment in fact, contravenes equality before the
law.

2.0 DOES THE CONSTITUTION PROVIDE FOR EQUAL RIGHTS FOR ALL
PERSON?
The term equality is not a new term to us humans, be you literate or not. This
principle of law has been used often times to portray that every human being is equal,
not equal in some aspect but equal in all ramification. The first line of the 1948
Universal Declaration on Human Rights (hereinafter referred to as UDHR)
reiterates this principle, it provides that all human beings are born equal. It goes
further to enunciate this principle in Article 7 UDHR which states that "All are equal
before the law and are entitled without any discrimination to equal protection of the
law".
Furthermore, the African Charter on Human and People’s Right also provides
for the equality of all citizens. It provides that every individual shall be equal and
entitled to equal protection of the law. this goes to say that everyone must be treated
equally under the law regardless of race, gender, color, ethnicity, religion, disability or
other characteristics without privilege, discrimination or bias.
It is very pertinent to note that equality is one of the three basic principles of the
rule of law, alongside fundamental human rights and supremacy of the law. Equality
according to The Law.com is the condition of possessing the same rights,
privileges, and immunities, and being liable to the same duties. This means that
everyone is equal, regardless of status, position or pedigree in the society. From the
above, it is deductible that the doctrine of equality is an indispensable component of
a democratic state. Therefore, the Constitution of the land should emphasize

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equality, respect for fundamental human rights and dignity of every citizen under
the law.
3.0 DOES PREFERENTIAL TREATMENT INTRODUCE ITSELF IN THE
CONSTITUTION?
The Constitution, being the grundnorm, is supreme and binding on all persons and
authorities throughout the Federal Republic of Nigeria pursuant to section 1(1) of the
Constitution of the Federal Republic of Nigeria, 1999, as Amended. (hereinafter
referred to as “the constitution”). Preferential treatment is defined according to
Law insider.com as the treatment of one individual or group of individuals in a
manner that is likely to lead to greater benefits, access, rights, opportunities or status
than those of another individual or group of individuals.
The very social order which the Constitution builds on is freedom, equality and justice,
as provided for in section 17(1) of the Constitution. This means that the constitution
was enacted on the basis of the rule of law and the the principle of equality of all
person is heavily represented. Despite this clarity, it can still be found in the
constitution certain languages connoting preferential treatment of certain persons and
this will be discuss accordingly;
First, the language used in the Constitution is glaringly masculine, and it is no mistake.
After a thorough search through the constitution the proposition team make bold to
say that the language of the constitution is evidently masculine. One instance of this
can be found in section 26 of the Constitution, which provides for citizenship by
registration. This section violates the preamble of the Constitution which provides for
equality of all persons. It provides for citizenship by registration, how do you start off
with "every person" in subsection (1) then still make provisions for "a woman" in
subsection (2) (a) of that same section? Does that mean that women are not part and
parcel of this group of persons being referred to in the former? It stipulates the
requirements for acquiring citizenship through these means, using the pronoun “he”.
One cannot defend it by saying it is a general application, as the Constitution
distinctly points out a requirement for a woman. This implies that the Constitution
favours the masculine pronoun, and deems it fit enough to be of both general
application and specific application. That also means that a woman cannot be
registered unless she's married to a citizen of a Nigeria, but her male counterpart can.

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Secondly, Section 308(1) and (3) of the Constitution of the Federal Republic of
Nigeria, 1999, as Amended, is preferential at best. It provides against suing an
executive for any offence during his period of office, and the rationale behind this is
that it impedes productivity on the part of the executive. This is not enough to excuse
this preferential treatment, as various countries have effectively allowed for the suing
of their presidents. In America for instance, various persons sued Donald Trump, and
won, without needing to drag the president through tedious court processes. America
remains well-run, and strikes out the rationale behind this immunity, baring it as
preferential.
Thirdly, a conditional preferential treatment with a weightless condition, are sections
175 (1), (2) and 212 (1), (2) of the Constitution. These sections provide for the
prerogative of mercy, and a condition given for this is consultation with a council.
Again, the Constitution makes no mistake on this, as it clearly states where approval
is needed section 80(3) of the Constitution. It does not provide for a check to this
prerogative, enabling its preferential nature. How can a convicted criminal be freed to
the detriment of the others.

Fourthly, the Constitution additionally allows certain Acts to be on par with it,
pursuant to section 315 (5) of the Constitution. One of such Acts include the Land
Use Act. This means that the governor of a state while exercising the right and
duties assigned to him by the land use act can violate the constitutionally provided
rights of the citizens. This is indeed unfair. Such duties such as the right to enter
into a premises for the purpose of investigation and the fact that no claim arising
from right annexed to land can be brought to court without first taking it to the land
use and allocation committee.

4.0 WHETHER PREFERENTIAL TREATMENT IS AGAINST EQUALITY

OF RIGHTS

The constitution of Nigeria was birthed from the doctrine of rule of law to prevent
impartiality and arbitrary rule. The setting up of the Willinks commission in 1957 to
allay the fears of the minority is a proof that the essence of the constitution is to
ensure equality of persons and this equality is encapsulated right from the preamble

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to section 15. 17 and 42 of the Constitution of the Federal Republic of Nigeria,
1999, as Amended the preamble of the constitution says amongst other things thus-"
to provide for a Constitution for the purpose of promoting the good government and
welfare of all persons in our country, on the principles of freedom, equality and
justice, and for the purpose of consolidating the unity of our people".

Preferential treatment as previously defined by Law insider.com as the treatment

of one individual or group of individuals in a manner that is likely to lead to greater
benefits, access, rights, opportunities or status than those of another individual or
group of individuals. The first question which has already been answered is whether
some provisions of the constitution are preferential? The second question is - are
these preferential treatments a contrast to its provisions on equality- Of course!. The
word preferential is a direct contrast to equality -its like expecting justice and
injustice to cohabit, light and darkness cannot coexist, when light comes darkness
must give way. This is not on found in the constitution of the federal republic of
Nigeria but is manifestly seen to be done in the country. Some of the instances where
these preferential treatments play out are as follows.

First, the immunity clause which is provided for in section 308 of the Constitution
has been a hindrance to our desire for genuine equality, agreed it has its use, it's not
like we can afford to have our executives responding to court summons everyday but
unfortunately this immunity is so severe that it has made some people "untouchable
rabbits", being untouchable is not even the problem, the problem is committing a
crime and still be unprosecutable. In the END SARS protest so many people were
injured or killed but still the offenders have not been brought to book because of
"immunity". In the case of FRN v James Ibori (2011)LCN/4605(CA) the former
Governor of oil rich Delta State was accused of stealing funds worth 290 Pounds by
Economic and Financial Crimes Commission but they were not able to prosecute him
when the evidence where glaring and after he has left of the case against didn’t hold
water . In fact, it is interesting to note that in 2007, a United Kingdom Court froze
assets belonging to Ibori worth $35m. Ibori could not be tried for all these allegations
while he was in office because of the immunity he enjoyed, and even when he was
tried in December 2007, he was cleared by the Federal High Court sitting in Asaba of
170 charges connected to alleged money laundering because of lack of evidence. It

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however took the intervention of the United Kingdom Court in May 2010 to arrest
him in Dubai and extradite him to the United Kingdom to answer for the alleged
corruption charges. Recently, to make mockery of our judicial system, Ibori was
sentenced to 13 years imprisonment in the United kingdom Court after pleading
guilty to charges of financial misappropriation Nation Newspaper 17 April, 2012). It
is not only the cases of Ibori, Alamiesigha, and Joshua Dariye that the immunity
clause has been abused. Governors and their deputies had always faced charges after
leaving office.

Similarly, Lucky Igbinedion of Edo State was also charged for looting of Edo
treasury (Thisday Newspaper, 17 October 2006). He was charged with more than 150
counts of embezzlement. He was accused of money laundering and stealing more
than 25 million dollars during his eight years tenure in office but the case was struck
out.

Secondly, the existence of the prerogative of mercy as laid down in section 175 of the
Constitution, is itself a mockery to the principle of equality, why should one criminal
out of a thousand others be pardoned of his offences, if you must pardon why not
pardon all so we know we're indeed equal. For instance, the pardon by President
Goodluck Jonathan of Chief D.S.P Alamieyeseigha, former Governor of Bayelsa State
convicted of several corruption charges. In strict constitutional jurisprudence, the
exercise of pardon power amounts to an interference by the executive with the
exercise of judicial power; in breach of the sacred doctrine of separation of powers.
However, such interference would be allowed when authorised by the same
Constitution that provided for the doctrine of Separation of powers. Presidential
pardons are by design, a check upon the occasional excesses and misjudgements of
the judiciary.

Thirdly, the word of section 26 of the Constitution purely discriminatory and

does not sure equality in any sense. The wordings of that provision connotes that a
married woman cannot confer citizenship on her husband but the husband can, this is
not in tune with the principle of equality.

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Fourthly, in Abdullahi & Ors v Government of the Federal Republic of Nigeria;
the plaintiffs brought an action for a claim for reparation and payment of compensation
to victims of the 20th September 2013, raid of an uncompleted building situated at
Aderemi Adesoji Crescent in FCT of the Federal Republic of Nigeria by officers and
men of the 2nd and 3rd defendants in the course of the raid of the premises in search of
weapons allegedly buried by suspected members of the Boko Haram. This is an
instance where the governor misused the power given to him via the land use act.

5.0 WHETHER THE PREFERENCES CONTAINED IN THE CONSTITUTION ARE

UNDOABLE?
The proposition team dare to answer to the negative, some of the requirements for
occupying sensitive political posts are quite incongruous- section 131(b) of the
Constitution of the Federal Republic of Nigeria, 1999, as Amended is to the effect
that a person must attained 40 years before he can become president, isn't this
tantamount to partiality, people who are not up to 40 can as well do well as president.
Fortunately the not too young to run bill has been passed making it possible for
younger individuals to be qualified for political posts, and accordingly we expect
more of these bills that will herald the required changes to be made.
For instance, Section 308 (1) and (3) of the Constitution of the Federal Republic of
Nigeria, 1999, as Amended, which provides for executive immunity, can be amended
by a bill providing for the suing of executives. In the case of Amaechi v. Independent
National Electoral Commission & Ors. (2007) LPELR-SC.252/2007, it was held that the
above section does not protect a governor from election related proceedings. If
election related petitions can be brought against a governor, why then would a suit
be held to impede his productivity? We canvas that this should be reflected in all the
laws that are preferential.

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 SUMMARY OF ARGUMENT

The constitution of Nigeria was birthed from the doctrine of rule of law to prevent
impartiality and arbitrary rule. The setting up of the Willinks commission in 1957
to allay the fears of the minority is a proof that the essence of the constitution is to
ensure equality of persons. The constitution as a foundation is presupposed to be a
resting place for all and sundry-both the makers and the takers. Being the supreme
law, it cannot serve only the privileged few, rather, as a leader, ensure the equal
rights of all those who come under it. The Rule of Law, being the basis of the very
democratic society we operate, pioneers for the equality of all persons before the
law. Can we then say that we practice a democracy without legal equality? It is the
firm submission of the first team that preferential treatments contained in the
constitution in fact, contravenes equality before the law.

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 ADDRESS OF SERVICE

DATED THIS 3RD FEBRUARY 2022

-------------------usi-------------------------------

UGWU STANLEY, SAUN.

MAGNA ASSOCIATES CHAMBERS,

PROPOSING TEAM,

Law Clinic, Faculty of Law Auditorium,

University of Nigeria, Enugu Campus.

FOR SERVICE ON:

KOSISOCHUKWU NGWU, SAUN.

OLISA AGBAKOBA CHAMBERS,

OPPOSING TEAM,

Law Clinic, Faculty of Law Auditorium,

University of Nigeria, Enugu Campus.

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