In landmark ruling, Lagos court puts quota system, federal character in jeopardy

A federal high court in Lagos has voided the education policy of the federal government on the use of different cut-off marks for admission into government colleges, otherwise known as Unity Schools.

After Nyesome Wike, former supervising minister of education, recently admitted that the Unity School admission requirements were not in order, as the process is based on “30 per cent merit and 70 per cent other factors”, Olisa Agbakoba (SAN), former president of the Nigerian Bar Association (NBA), filed a public-interest litigation against the policy, suing the attorney-general of the federation and the minister of education.

Agbakoba approached the court under provisions of the Constitution as well as 2009 Fundamental Human Rights Enforcement Rules to contest the legality of using different cut-off marks for Unity Schools based on gender, ethnicity and state of origin.

He described such application as discriminatory and a violation of the fundamental rights to freedom from discrimination guaranteed by the Constitution.

Agbakoba contended that the policy contravened Section 42 of the Constitution, which prohibits administrative or executive actions by government that discriminate between Nigerians on grounds of ethnicity, gender, religion and place of origin.

In a counter-affidavit, the federal government stressed that the admission policy was aimed at fostering peace, unity and amicable coexistence among Nigerians and residents.

The government added that using different cut-off marks was to equitably allocate admission spaces to states that are marginally ahead of others and those marginally behind others.

“This strategically differentiated cut-off mark allows for the diversities of students from different ethnic groups in the Unity Schools,” it argued.

“A single and uniform cut-off mark normally applied would mean that some states would be absent from the Unity Schools.”

The government also argued that Agbakoba lacked the locus standi to file the suit, and that the suit was speculative, hypothetical and academic, which ought to be dismissed with costs.

Deliving the judgement, Justice John Tsoho declared the administrative acts of the federal ministry of education, which prescribe and apply different requirements, including cut-off marks for candidates seeking admission into federal government colleges based on gender, ethnicity, states of origin and so on, as a discriminatory action that contravenes Section 42(1) of the Constitution.

Tsoho, who granted an order directing the respondents to apply uniform admission requirements, especially cut-off marks to all candidates seeking admission into federal government colleges notwithstanding their gender, states of origin and ethnic background, also perpetually restrained the federal government, whether by itself, agents, servants, privies or otherwise howsoever, from further acts of discrimination in admission into government colleges.

He held that the provision of the Constitution, especially Section 1, was superior to any administrative law or policies adopted by the education ministry.

The court also held that the preamble to the 2009 Fundamental Human Rights Enforcement Rules was clear on who had locus standi to file a public-interest litigation, and that Agbakoba qualified to file the instant suit.

The court said the admission policy of the federal government was a clear departure from provision of Section 42 of the 1999 Constitution (as amended), adding that same was discriminatory, null and void.

To implement and enforce the Federal Character Principle of fairness and equity in the distribution of public posts and socioeconomic infrastructures among the various federating units of the Federal Republic of Nigeria, the Nigerian government has a Federal Character Commission (FCC), a federal executive body established by Act No 34 of 1996.

The quota system, an outgrowth of the federal character principle, allows for a wide range of disparate cut-off points for different states of the federation.

While candidates in Yobe and Zamfara state only need to score two points, those from Anambra need to score 139, Osun state 127, Imo 138 and Anambra 139.

The system of admission decision has been severely crticised as antagonistic to excellence.

Below is a table of all 36 states of the federation and the federal capital territory, and their respective cut-off points.