Can the President of Nigeria Replace / Change the Flag at Any Time?

Can the President of Nigeria Replace / Change the Flag at Any Time? Daily Law Tips (Tip 819) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction:  

Among the symbols of authority of Nigeria is the flag of Nigeria. The flag has two colours; green and white. The alleged shooting of protesters that had the flag, during the recent #EndSars protest in Lagos, Nigeria, raised many questions about the flag. Among the popular questions were; “Can A Person with A Nigerian Flag Be Shot or Killed?”, “Is there Need for a License, Before the National Flag can be Used in a Public Place?” and “Can the President of Nigeria Replace / Change the Flag at Any Time?”

In earlier publications, the writer discussed and answered the questions; “Can A Person With A Nigerian Flag Be Shot Or Killed?”and “Is there a Need for a License Before the National Flag can be Used in a Public Place?”. This paper focuses on the question; “Can the President of Nigeria Replace / Change the Flag at Any Time?”. It seeks to explain the lawful process and procedure for the change or replacement of the flag of Nigeria as well as the right authority for the change.

 

Understanding the Nigerian Flag:

The Flag of Nigeria is enshrined in the Constitution of the Federal Republic of Nigeria. Expectedly, the Constitution of Nigeria places enormous duties on Nigerians towards the National Flag. By the constitution of Nigeria, it is the duty of Nigerians to respect the National Flag. Aside, the Constitution of Nigeria, there is a federal law (the Flag and Coats of Arms Act) dedicated to the Flag. The law regulates the flag and its uses, as well as creates offences and punishments relating to the flag. Read more on this issue via this link; <https://sabilaw.org/bovi-and-the-nigerian-flag-where-is-the-offence/>.

The first of the six (6) duties of every citizen of Nigeria, is to “abide by this Constitution, respect its ideals and its institutions, the National Flag, the National Anthem, the National Pledge, and legitimate authorities”. This shows how important the Nigerian/National Flag is to Nigeria and every citizen of Nigeria. Click this link to read more on the 6 duties of Nigerian; <https://sabilaw.org/six-duties-of-all-nigerians-in-any-part-of-the-world-daily-law-tips-tip-402-by-onyekachi-umah-esq-llm-aciarb-uk/>

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The National Flag can be flown in a public place in any part of Nigeria. Any person that intends to fly or display the National Flag in any public place needs the approval (license) of the Federal Minister of Interior Affairs, unless the National Flag is being displayed or flown to show patriotism and support for Nigeria. Hence, the National Flag can be flown and displayed in any part of Nigeria and in a private or public place without any permit/approval, in a show of support for Nigeria. Click on this link to learn more about the legal implication of flying Nigerian Flags in public or private place:<https://sabilaw.org/flying-nigerian-flag-and-its-implication/>

There are 36 states in Nigeria with their respective state governments. While the Federal Government of Nigeria has its own national flag, the 36 states in Nigeria are authorized to have their respective state flags. Hence, a state in Nigeria can fly its flag instead of flying the National flag of Nigeria. However, where a state flag and the National flag are to be flown at the same time in a public place, then only the National flag of at least the same size as the state flag will be used and the National flag must fly higher and above such state flag. You may read more on this issue;“Can Any State In Nigeria Own A Flag And Fly It Instead Of The National Flag?”

 

How to Change/Replace the National Flag:

The Constitution of Nigeria made several references to the national flag. By section 24 of the Constitution, every citizen of Nigeria is mandated to respect the National Flag under the “Duties of the Citizen”. Hence, the Constitution of Nigeria recognizes the existence of the National Flag. However, the Constitution does not have any provision on the creation, operation and nature of the National Flag. Since everything and affairs of Nigeria cannot be covered in the Constitution, the Constitution empowers the legislature to make and enact laws over all issues.

In line with the Constitution of Nigeria, the federal legislature has a federal law (the Flag and Coats of Arms Act)made since 1960. The law came into force on 1stOctober 1960 and regulates the display and use of the National Flag, certain other flags and the National Coat of Arms. Like the Constitution of Nigeria, the Flag and Coats of Arms Act is silent on the creation of the National Flag and the process for the change, replacement, alteration or amendment of the National Flag.

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Also, there is another related federal law (the Flags of Nigerian Ships Act) which makes provisions for flags to be worn by Nigerian Ships other than those of the Nigerian Navy or Naval Reserve as evidence of Nigerian nationality. It permits such flags to be worn by ships that are not owned by the military, on all lawful occasions and to be classed as ensigns and distinguished by their respective colours. Such non-military ensigns are regulated by the Federal Minister of Transportation while those of the military are regulated by the Federal Minister of Defence. Surprisingly, like the Constitution of Nigeria and the Flag and Coats of Arms Act, the Flags of Nigerian Ships Act also has not provision on the process for the change, replacement, alteration or amendment of the National Flag.

The National Flag having been enshrined federal laws, one may assume that the federal law creates the National Flag and that as such, changing or replacing the national flag will be through the amendment of the Flag and Coats of Arms Act, or the Constitution of Nigeria or any other federal law, by the federal legislature. Although the Flag and Coats of Arms Act does not expressly specify the process, procedure and authority/officer that can change or replace the National Flag, there are processes, procedures and authorities/officers that can be inferred from the Flag and Coats of Arms Act. Such inference is based on the express roles and powers of some authorities mentioned in the Flag and Coats of Arms Act.

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Although the Constitution of Nigeria fails to define the National Flag, the Flag and Coats of Arms Act defines the National Flag as the National Flag of the Federal Republic of Nigeria. The definition means that there is no specific colour or pattern known as the National Flag, rather any flag deemed as the flag of the Federal Republic of Nigeria is the National Flag. This is possibly the reason for the failure of the Flag and Coats of Arms Act to define the National Flag in terms of colours, measurements, patters and size of the present-day National Flag made up of green and white colours.

The Flag and Coats of Arms Act gives enormous powers on the executive arm of government to fully regulate the display and use of the National Flag and other flags in Nigeria. For instance, the Federal Minister of Internal Affairs appointed by the President of Nigeria (and any other authority) has the responsibility of granting licenses for the display, use and exhibit of the National Flag and certain other flags in public places. Such licenses are to contain “… such terms and conditions as the Minister may deem fit and may at any time be revoked, amended or altered by the Minister”.Clearly, the executive arm of the Federal Government has the powers to restrict, grant and deny license for the display and use of the National Flag and certain other flags. Furthermore, through the Nigeria Police Force, the Federal Government has the powers to arrest and prosecute persons suspected to have violated the National Flag. Hence, the Flag and Coats of Arms Act has singled out the President of Nigeria (through his Ministers) as the rightful person that regulates the use of the National Flag.

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Aside vesting the regulatory powers over the National Flag on the Executive Arm of the Federal Government of Nigeria, The Flag and Coats of Arms Act at section 3(1)(b) and (d), further made provisions that may suggest that the President of Nigeria or a department/branch of Government may appoint any flag to be flown in Nigeria or must have performed such duties in the past. The concerned provision reads that: “… any flag for the time being appointed to be flown by the President”. Furthermore, the provisions also say: “… a department, or any branch of a department, of the Government of the Federation” may also appoint any flag to be flown in Nigeria.

The Flag and Coats of Arms Act clearly expects the National Flag to be regulated by the Federal Ministers of the Federal Government or through any department or branch of a department of the Government of the Federation. In all, it is the Executive Arm of the Federal Government that regulates the National Flag and not the Judicial Arm or the Legislative Arm. Since the Flag and Coats of Arms Actexpressly vests the powers to regulate the National Flag on the Executive Arm of the Federal Government, it is only logical that the powers to change and replace the National Flag rests also on the Executive arm, after all, there is no contrary express or implied provision.

 

Conclusion:

Although, the legal framework for the National Flag fails to specify a clear and predictable process, procedure and appropriate authority for the replacement or change of the National Flag, the appropriate authority for the change/replacement of the National Flag can be inferred from the Flag and Coats of Arms Act. Drawing from the provisions of the Flag and Coats of Arms Act, it is safe for one to argue and agree that the Federal Executive Government of Nigeria has the statutory powers to appoint any flag to be flown in Nigeria and to regulate the National Flag (including, the change and replacement of the National Flag).

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For clarity, the Federal Legislature is implored to urgently amend the about 61-years old federal law (the Flag and Coats of Arms Act), to clearly set the process, procedure and appropriate authority for the replacement or change of the National Flag. Also, the amendment should increase the punishment for defacing or abusing the National Flag from the present fine of One Hundred Naira (N100.00) to a higher fine (not less than N250,000.00) to deter prospective violators.

Can the President of Nigeria Replace / Change the Flag at Any Time?

My authorities, are:

  1. Section 1, 2, 3, 4, 5, 6, 24, 318 and 319 of the Constitution of the Federal Republic of Nigeria, 1999.
  2. Sections 1 to 10 of the Flag and Coats of Arms Act, 1960.
  3. Sections 1 to 6 of the Flag of Nigerian Ships Act
  4. Onyekachi Umah, “Bovi and the Nigerian Flag; where is the Offence?” (LearnNigerianLaws.com, 22 February 2021) https://sabilaw.org/bovi-and-the-nigerian-flag-where-is-the-offence/accessed 8 August 2021
  5. Onyekachi Umah, “Can A Person With A Nigerian Flag Be Shot Or Killed?” (LearnNigerianLaws.com, 23 October 2020) https://sabilaw.org/can-a-person-with-a-nigerian-flag-be-shot-or-killed/accessed 8 August 2021
  6. Onyekachi Umah, ”Can Any State In Nigeria Own A Flag And Fly It Instead Of The National Flag?” (LearnNigerianLaws.com, 7 November 2018) <https://sabilaw.org/daily-law-tips-by-onyekachi-umah-esq-tip-222-can-any-state-in-nigeria-own-a-flag-and-fly-it-instead-of-the-national-flag/ > accessed 8 August 2021
  7. “Federal Republic of Nigeria” (FOTW, 10 October 2015) <https://fotw.info/flags/ng.html > accessed 22 February  2021
  8. Onyekachi Umah, “Six Duties Of All Nigerians In Any Part Of The World” (LearnNigrerianLaws.com, 28 August 2019) <https://sabilaw.org/six-duties-of-all-nigerians-in-any-part-of-the-world-daily-law-tips-tip-402-by-onyekachi-umah-esq-llm-aciarb-uk/ > accessed 8 August 2021
  9. Onyekachi Umah, “Flying Nigerian Flag and Its Implication” (LearnNigerianLaws.com, 20 October 2020) <https://sabilaw.org/flying-nigerian-flag-and-its-implication/> accessed 8 August 2021
  10. Onyekachi Umah, “BBC Reports our Comment on the Killing of Persons With Nigerian Flag” (LearnNigerianLaws.com, 23 October 2020) <https://sabilaw.org/bbc-reports-our-comment-on-the-killing-of-persons-with-nigerian-flag/> accessed 8 August 2021.
  11. Pic credit: cadres advocacy centre

Can the President of Nigeria Replace / Change the Flag at Any Time?

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