Preliminary Issues

The idea concerning what contains constitutional law and vice versa, i.e. what constitutional law is all about can simply be defined as the law relating to the constitution of a nation. Constitutional Law can also be referred to as commentaries on the ideologies contained in the provision of the constitution. Certain jurisprudential authors such as Colin Turpin, John Austin and Salmond have defined Constitutional Law and stand to show that the definition of Constitutional Law does not have a single perspective, but many depending on the political brain cap status of the writer. For instance, while Colin Turpin defined Constitutional Law from the perspective of activities in the United Kingdom, Austin defined it in terms of what consolidates sovereignty upon the uncommanded commander. It should therefore be taken to mean that the idea of Constitutional Law is inexistent under a Military administration in theory. It may or may not be inexistent, in practice.

What is a Constitution?

Simply put, the Constitution is the most basic law of a nation. This however, does not effectively attack the thirst for an acute general definition of the term. Thus, different definitions have come to be in place based on different perspectives from different authors. For instance:

According to Holland, "it is often as in England, an unwritten body of custom....". This definition, as can be seen, has an obvious flaw embedded in it. Are all constitutions of the world usually unwritten? To answer in the negative would be the correct position. And so, you are implored to look at different authorial definitions you come across and assess them for inevitable flaws. This would stand to support a universally acknowledged fact, which is that the term "Constitution" has no universally accepted definition.

The term Constitution has also been defined as a set of rules that were not subject to the will of a sovereign authority; a document having special legal sanctity which sets out the framework and principal functions of the organs of government within the state; rules which set out the framework of government; the organic and fundamental law of a nation or state, inter alia.

Certain authorial definitions further include those of Judge Cooley, Peter W. Hoggs, C. H. McWillain, inter alia. You are expected to study their respective definitions.

Classification of constitutions

1. Written and unwritten Constitutions: A written constitution means a set of rules and regulations are contained in a single comprehensive document, often regarded as fundamental and most supreme. An unwritten constitution, on the other hand, is a set of rules and regulations which are found stipulated in several documents and not a single comprehensive document. Nigeria, USA, India are examples of Countries with written Constitutions while Countries like Britain and New Zealand have unwritten Constitutions.
2. Flexible and Rigid Constitution: This class of Constitution has to do with the type of amendment procedure. Where alteration can be done by ordinary legislative enactment, such a Constitution is flexible. Where such procedure is required to be special however, the Constitution is rigid. Section 9 of the 1999 Constitution, for instance, contains the special amendment procedure of the Nigerian Constitution which is rigid, requiring a 2/3rd majority.
3. Monarchical and Republican Constitution: This class deals with the type of recognized leadership. A constitution such as the 1960 Nigerian Constitution or the Canadian Constitution which recognizes a monarch as the head of the country is deemed to be a Monarchical Constitution. On the other hand, a republican Constitution has a President as its recognized head instead.
4. Presidential and Parliamentary: This class is based on the type of relationship between the executive and the legislature in government. In a presidential constitution, the executive and legislative arm are separated strictly and there is only one recognized executive head which is the President. In a parliamentary constitution however, the legislature and the executive are fused and there are thus two recognized heads, being the Prime minster and the President. The Constitution of the UK, the 1960 and 1963 constitutions of Nigeria are examples of Parliamentary Constitutions while the Constitutions of the USA, 1979-1999 constitutions of Nigeria are examples of Presidential Constitutions.
5. Federal and Unitary Constitutions: Under the Federal constitution, there is a division of power between the central and other regional governments, each enjoying some degree of autonomy. For example, the Nigerian, Indian and the United States Constitution. Under a Unitary Constitution, there is only one government, which is at the Centre as in Britain and Gambia.
6. Diarchic Constitutions: Here, there is the division of governmental powers between two or more authorities on a basis other than regional. This type of Constitution was brought about in Nigeria during the Second Republic in order to curb the incessant incursion of the military into Nigerian politics. There was a division of powers between the military and civilians in government.
7. Single and Multiparty Constitutions: Under a single party constitution, only one legitimate political party is recognized as one involved in the politics of the Country. Thus, the provisions are more like mere manifesto of the party. Where the Constitution recognizes more than one party however, it is multiparty and its provisions are general.
8. Military Constitutions: Under the various military administrations, there have been Constitution (Suspension and modification) decrees, usually the first decree promulgated. Nope tags this as Military Constitution. Under the decree, the constitution is suspended and modified to support the rule of the Military. Such decrees do not however occupy any fundamental position and its provisions are not binding on later decrees. It should be taken to note also that dictatorial rule is an aberration.
9. Multinational Constitutions: These are basically charters of international organizations and conventions. The foremost of these conventions came into force on 3rd September, 1953, the European Convention on Human Rights. It has however become necessary to pay a closer attention to these laws in the light of the developments in the European Union.

It should conclusively be taken to note that these classifications are not in any manner watertight or absolutely efficient in aiding the understanding of Constitutions. This is because the characteristics of Constitutions overlap according to these classes. For instance, the Nigerian 1979 and 1999 constitutions are presidential, rigid, written, republican, Multiparty and federal in nature.

Rule of law

This Constitutional concept is one of the most basic in Public Law. It is often regarded as a synonym for law and leader. Its roots can be found in ancient Greek philosophies and the obsession with governmental powers of Greek philosophers and in the theories of natural justice. Origins and justification were also going for it in John Locke's Theory of Social Contract. When natural law became obsolete, its legitimizing and restraining function was taken over by the Common Law in England and a written Constitution in North America and France.

The last stage in the development of the Concept came with the writings of A. V. Dicey, who gave it three meanings:

1. Absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and exclusion of the existence of arbitrariness of prerogative, or even wide discretionary powers on the part of the government. This includes discretionary powers often wielded by administrative authorities which has been heavily criticized.
2. Equality before the law, or equal subjection of all classes to the ordinary laws of the land administered by the ordinary law courts. He however allowed for some modification due to the existence of political, social and economic inequalities in society.
3. The existence and enforcement of certain minimum rights usually guaranteed by the Constitution.

It should be noted that Dicey's work was written partly as a Criticism of the French ‘Droit Administratif’ under which a special court was established for administrative purposes. Per H. R. Wade, Dicey's conclusion was a misconception as the French had not established these special courts with the aim of neglecting the rights of private citizens, but for the rights to be adjudicated upon in those courts. Also, it is worthy of note that Dicey's theory has contributed to the emergence of various Schools of thought on the nature of Rule of Law. These include:

1. Procedural Justice Theory: This recognizes the supremacy of the law and the need for it to be administered with procedural safeguards.
2. Law Enforcement Theory: This defines Rule of Law as no more than adherence to a supreme law, which justified the existence of rule of law in advanced dictatorial state.
3. Material Justice Theory: This recognizes the rule of law as a dynamic concept which should be employed to safeguard and advance the will of the people.

The above role of the rule of law stipulated in the Material Justice Theory can be found in the Fourteenth Amendment to the Supreme Constitution of the United States. In Nigeria, the role is performed by a Supreme Constitution.

In Balewa v. Doherty, the Commission of Tribunal and Inquiry Act No. 26 of 1961 had a Commission created by the Prime Minister with various powers to compel witnesses, impose fines and imprisonment and punish for contempt and so on. The plaintiffs sought a declaration that the Act was generally unconstitutional or if not, those sections conferring judicial powers were. The courts held them as unconstitutional as they purported to exercise authority not belonging to the federal government.

In Aoko v. Fagbemi, the Court held that nobody could be punished for an offence that was not part of our laws at the time it was committed. In Attorney General of the Federal (AGF) v. Attorney General of Bendel State, the Court held that the procedure adopted by the National Assembly in passing the appropriation bill was unconstitutional. Also in A.G. Abia v. A.G. Federation, the Supreme Court held that no Law enacted by the National Assembly can validly increase or alter the tenure of Local government officers except in relation to the Federal Capital Territory, Abuja.

The military rule and the rule of law

It should be noted first and foremost, that the manner of coming into power of the military negates the principle of supremacy of law. See section 1(2) of the 1999 Constitution which states:

The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.

Upon coming into power then, the promulgation of decrees also negates the principle of constitutionalism, and of course the rule of law. There is also the reduced status of the Judiciary as watchdogs of the people's rights. This is usually achieved by ousting the jurisdiction of the Courts in specified matters by the principal decree. For example, section 5 of Decree 17 of 1985, similar to Decree 107 of 1993 provides:

No question as to the validity of this or any other decree or any edict shall be entertained in any court of law in Nigeria.

The initial reaction of the courts, especially the Supreme Court, to the state of rule of law under military rule originally tended towards declaring that a coup does not necessarily affect the rule of law. This was consolidated in the court's statement in the case of Lakanmi v. AG Western region:

But if in this pursuit, the government however well-meaning in effect, passes judgement and inflicts punishment or in other words, erodes jurisdiction of the courts, in a manner that the dignity and freedom of the individual, once assured are taken away, the courts must intervene.

The Supreme Court however eventually accepted the legislative supremacy of the military and the fact that the decree dictated the rule in the new legal order created by it. Even with the acceptance of the military laws, the courts continued to demand strict compliance with the provisions of a decree or edict.

Separation of powers

This constitutional concept was used to protect the rule of Law and to prevent exercise of arbitrary powers by the sovereign. The concept stemmed from the writings of John Locke on the situation in England in the 17th century. He argued that it was foolhardy to give lawmakers the power to make law and execute them. The reason for this argument is because in the process, they may exempt themselves from the observance of the law. He thus proposed a threefold division of governmental powers into:

1. Legislative powers.
2. Executive powers.
3. Federative powers which concern making of war or peace and external relations.

The modern form of the concept of Separation of Powers is due to the writings of Baron de Montesquieu, who argued that the secret of the English Constitution was that power was not concentrated in the hands of an individual or group. According to the doctrine, a person or body must not exercise more than one of the powers of government, one arm of government must not control or interfere with the others and one arm of government must not exercise the functions of another.

In the 1999 constitution of Nigeria, section 4 vests legislative powers in the National Assembly and State Houses of Assembly, section 5 vests executive powers in our Presidents and Governors and section 6 vests judicial powers in the courts. There is also section 147(4), which provides that a member of the Legislature appointed as a Minister of the Federation must vacate his seat in the Legislature. Note that section 148(4) of the 1995 draft constitution did not have this requirement, and so a legislator would not have needed to vacate his seat to be a Minister of the Federation also.

Is a strict compartmentalized Separation of Powers possible? No. This was observed by the Constitutional Drafting Committee of the 1979 constitution. Per Professor Abiola Ojo, a complete Separation of Powers is neither practicable, nor desirable, for effective government. For examples, see section 32, sections 58 & 59, section 147(2), section 88, section 132, section 4(8), inter alia. What these provisions show is the fact that a strict division is not practicable in modern government, and so birthing the idea of checks and balances.

The Courts have extensively pronounced on the existence and enforcement of the principle of Separation of Powers in the following cases: Lakanmi and others v. AG Western Region, Gov. of Kaduna State v. House of Assembly, Kaduna State, Senator Adesanya v. President of Nigeria, Hon. Gideon Jideonwo v. Gov. of Bendel State and others, inter alia.

Military rule and the separation of power

There is no doubt that organization of government under military rule is automatically contrary to the concept of Separation of Powers, traditional or modern. The military, in its purpose, methods and functioning seen from the composition of the various military governments and contained in their promulgated decrees, operate contrary to this principle.

See Decree No. 1 of 1966 for example, where the Supreme Military Council was constituted as the legislative body and the Federal Executive Committee as the Executive body. The SMC was composed of the Head of State as Chairman, service chiefs, military governor and Attorney General. The FEC was similarly composed of military governors. Such a composition derogates evidently from the concept of Separation of Powers. This was also evident in the fact that the Head of State whose signature turned decrees into law was also vested with executive authority.

There was also Decree No. 1 of 1984 where the Head of State was Chairman of all the bodies and the Chief of Staff Supreme headquarters, was also a member of all the bodies. Thus, there was also no clear demarcation between the executive and legislative powers of the Federal Military Government.

Under all the various constitutional decrees, ranging from Decree No. 32 of 1975 to Decree No. 17 of 1985, the Judiciary continued to enjoy a separate existence, though its fundamental powers of judicial review were often curtailed. A comprehensive national body tagged the Advisory Judicial Committee was formed under the various decrees and consisted of the Chief Justice of Nigeria as the Chairman.

With the foregoing stated thus, the only appropriate conclusion that can be reached is that Separation of Powers is a myth under military rule which often exercises concentration of the powers of government in one body or one man.

Supremacy of the Constitution

This Concept basically means that the Constitution as a legal document is the ultimate of all laws and that all laws must conform to it before they can be regarded as valid. This concept is very visible in countries with written constitutions such as Nigeria and India, inter alia. This is because it is the backbone of the rule of law for these said countries. See section 1(1-3) of the 1999 Constitution.

Per Udoma JSC in Rabiu v State, "it is the duty of this court to bear constantly in mind the fact that the present constitution has been proclaimed the Supreme law of the land... has superiority to and over and above any other Constitution ever devised for the governance of this country."

Any act or law executed is contrary to the provisions of the Constitution would be held null and void by the courts in upholding the supremacy of the Constitution.

In Balewa v. Doherty, Ademola CJF held that the provisions of section 3(4) of the Commission of Tribunals and Inquiry Act, which ousts the jurisdiction of the Courts, was contrary to section 21, 31 and 108 of the 1960 constitution and is thus, null and void.

In Adewole v. Jakande, the ministry of Education proposed the abolition of private primary schools. The proposition was then challenged by the plaintiff as contravening some of their fundamental human rights. The court assented to this and so declared the proposition void.

In AG Bendel State v. AG Federation, the Court declared unconstitutional the procedure by which the appropriation bill was passed by the National Assembly.

In Ibidokun v. Adaralode, the court held, among other things that since the provisions of section 41 of the Land Use Act is contrary to section 272(1) of the 1999 Constitution in that it purports to exclude the jurisdiction of the High Court in relation to Land matter in rural areas, it is null and void.

Also, in AG Federation v. AG Abia State, the Supreme Court declared null and void, the act of the Federal Government in charging certain special funds, contrary to section 162 of the 1999 constitution.

Military rule and constitutional supremacy

Under the various military administrations in Nigeria, the concept of Constitutional Supremacy was always the first to be abrogated. This is primarily because the military assume power and governance in a way that is prohibited by the Constitution. The Constitution is then suspended and modified in order to suit the dictates of the military government. The Decrees promulgated are the law, and so where the provision of a Decree is contrary to the provisions of a Constitution, the decree will prevail.

For instance, Decree no. 1 of 1966 states that:

Subject to this and any other decree, provisions of the Constitution which are not suspended by Subsection 1 shall have effect subject to modifications specified in Schedule 2 to the decree.

Section 1 of the Schedule thereby provides that Section 1 of the Constitution dealing with Supremacy continues to be in operation, "provided it shall not prevail over any decree and nothing in the Constitution shall render any decree void to any extent what so ever."

What was the status of the Courts under Military rule in relation to Constitutional supremacy? The Courts’ jurisdiction in making a decision on certain acts were usually ousted by the decrees. The initial reaction of the courts was to resist the supremacy of a Decree and insist on the fact that the suspended constitution still maintained the status quo and was still in operation. The Military Government however still insisted on the supremacy of its legislative power. For instance, in the case of Lakanmi v AG Western Region, the Supreme Court's decision was reversed by the provisions of Decree no. 28 of 1970.

Thus, the Courts began to consolidate the supremacy of decrees. And so where the provisions of an edict are contrary to the provisions of a Decree, the courts can declare it null and void. In Ondo State Governor v Adewunmi, the first appellants promulgated Edict no. II of 1984 which was challenged by the respondents as it ousted the Jurisdiction of the Ondo State High Court in Chieftaincy matters. The Supreme Court held the Edict was inconsistent with Decree no. 1 of 1984. Also, in Obaba and others v Military Governor of Kwara State, the courts upheld the 57 State Chiefs (Appointment and Deposition) (Amendment) Edict based on the fact that it didn't go contrary to Decree no. 1 of 1984.

Parliamentary supremacy

This essentially means the Parliament is not subject to any other authority. Per Sir Eskine May: "the parliament can pass laws unjust and contrary to sound principles of government, but it is not controlled in its discretion." Thus, the parliament cannot make any law forever binding on itself or its successors, and is aided in this supremacy by the Common law.

The legal concept of Parliamentary Supremacy is the legacy of the British Parliamentary practice and came about as a result of the Conflict between the Crown and the Parliament and the Settlement of 1688-1689 which ended in victory for the Parliament.

Interpretation of constitutions

The courts generally adopt a purposive approach in which they look at what intent such law exists to see. The courts also tend towards a broad or liberal interpretation of the provisions of the Constitution, except when something in the law indicates a narrower interpretation would best serve the courts. The following stated are some of the modes of interpretation:

1. Liberal Interpretation: The often quoted basis for this approach is in the decision of Sir Udoma JSC in the case of Nafiu Rabiu v State where the Justice stated that the "courts should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution." Obaseki JSC in AG Bendel v AG Federation further stated the fact that a Judge must bear in mind, the broader approach in interpreting the construction of a Constitution. The Liberal approach was also consolidated in the cast of Ukaegbu v AG Imo State. The Liberal interpretation of the Constitution thus looks at interpretation agreeing to what the reader believes the author reasonably intended as conferred by B. O Nwambueze.
2. Literal Interpretation: Where the language of the Constitution is unambiguous and clear, the Courts will give it its natural meaning, or an ordinary, literal interpretation and cannot read into it any implied terms. This was consolidated by the Courts in the cases of Supt Apostle Alao v Apostle Osinowo & Adidas v Onyiwola. Where the words are clear, the law must be enforced or interpreted, however harsh it may be. The case of AG Federation v Abubakar further states this form of interpretation.
3. Noscitur a Sociis rule of interpretation: According to this rule, the obscurity or doubt as to the meaning of particular words may be removed by reference to associated words, and the meaning of a term may be enlarged or restricted by referring to the object of the whole clause of which it is used.
4. Ejus dem Generis rule of interpretation: Here, the court applies the rule in an appropriate case, to confer the scope of general words which follow special words as used in a statute or document or Constitution within the genus of those special words. The general words are therefore to be read as comprehending only those things of the kind as those designated by the preceding particular words or expression, unless there is something to show that a wider sense was intended.

See the case of Alhaji Isa Ojibara, where the court explained the Noscitur a Sociis and the Ejus dem Generis rule of interpretation.

Other ideas exist which aid the courts in the interpretation of the Constitution and they include: The preamble to the Constitution, Constitutional conference Committee decisions, recommendations and resolutions, the mischief at which the law is aimed at, foreign decisions, inter alia.