CONSTITUTIONAL SUPREMACY
CONTENTS
1.0 Introduction
2.0 Objectives
- Main Content
- Independence Constitution 1960
- Republican Constitution 1963
- Military Dictatorship
- Constitution of Federal Republic of Nigeria, 1979 and 1999
- Where Lies Sovereignty or Supremacy
- Benchmark of Sovereignty or Supremacy
- Sovereignty or Supremacy in relation to Nigeria
- Legislative
- Executive
- Judiciary
4.0 Conclusion
5.0 Summary
6.0 Tutor-Marked Assignment
7.0 References/Further Readings
INTRODUCTION
In his Poetics, Aristotle had argued that good government would exist only when the powers of government are divided. He was one of the exponents of Constitutional philosophy – separation of powers of government bodies, which now consists of the Legislative, Executive and the Judiciary. You will note that the motive for agitating for separation of power was to prevent the exercise of arbitrary power inherent in executive and judicial powers as it were in his time and to save people from autocracy. (Myer’s V US 1767).
In the same vein, John Locke agued that:
It may be too great a temptation to human frailty apt to grasp at power for the same persons who have the powers of making law to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they made and suit the law, both in its making and execution to their own private advantage.
Montesquieu also argued that men entrusted with power seem to abuse it; that political liberty is to be found only when there is no abuse of power and no liberty if the power of the judge is not separated from the legislative and executive power. In orthodox theory, separation extends beyond functions and avenues to the personnel of agencies [what the idea of separation of power is not]:
- To promote efficiency
- To avoid friction
What the idea of separation of power is:
To prevent arbitrary exercise of power To save people from autocracy.
To prevent law makers, executives from exempting themselves from observing the law or facing the consequence of breach.
To prevent them from making self-serving laws. To prevent abuse.
To keep to the minimum powers which are lodged in one single organ.
To be able to oppose one organ or another or other organs.
To enable the legislature exercise checks on executive powers, and vice versa and the judiciary also
To exercise checks on both executive and the legislature.
As you proceed with this unit, you should occasionally hold you breath and ask:
In the scheme of things, where has supremacy or sovereignty resided?
Is supremacy resident in the people (electorate), Constitution, Legislative, Executive or the Judiciary or the President; or a combination of two or more or all of them?
OBJECTIVES
When you would have completed this unit, you should be able to:
distinguish between Parliamentary supremacy and Constitutional supremacy; and discuss issues of supremacy in a democracy and under a military dictatorship.
MAIN CONTENT
SOVEREIGNTY (OR SUPREMACY) IN MODERN NIGERIA
In Pre-colonial times, the traditional ruler legislated, administered and adjudicated. He was the legislature, the chief executive and judge. In the Colony and protectorate of Nigeria, the very keystone of Constitutional law and concept of parliamentary sovereignty is that the Queen – in – Parliament is competent to make or unmake any law whatsoever on any matter whatsoever and no court of law in the land is competent to question the validity of such Act of Parliament. Every other law making body either derives its authority from Parliament or exercises it at the sufferance of Parliament; it cannot be superior to or even coordinate with, but must be subordinate to Parliament. What then is the position of sovereignty or supremacy in modern Nigeria; Commencing from 1960 when Nigeria became an independent and sovereignty state?
The Independence Constitution
The Independence Constitution 1960 marked the beginning of self-rule but it retained some vestiges of colonialism. Some of the Changes brought about by the Constitution are:
The Status of Nigeria Changed from ‘the Colony and Protectorate of Nigeria’ to ‘Nigeria’.
The Nigerian Legislature assumed power to enact its laws or even extra territorial legislations, repeal or amend any Act of the United Kingdom Parliament extending to Nigeria.
The Executive comprised elected members of the legislature.
The Queen of England remained queen of Nigeria and was sovereign.
Legislation in Nigeria was in the name of Her Majesty, the Queen. The Government and its institutions in Nigeria were the Queens.
A non-executive Governor General represented the Queen in Nigeria. Appeals from the decisions of the Federal Supreme Court lay to Her Majesty’s judicial committee of the Privy Council sitting in London.
The Republican Constitution, 1963
Further changes were carried out in 1963, namely:
The Republican Constitution, 1963, consolidated Nigeria’s Independence; the Queen of England ceased to be Queen and Head of State of Nigeria; Appeals to the judicial committee of the Privy Council also ceased; Political independence with its accompanying sovereignty was accordingly restored.
SELF-ASSESSMENT EXERCISE 1
Differentiate between sovereignty or supremacy in 1960 – 1963 and 1963 – 66 constitutions.
Military Dictatorship
The military seizure of political power has been discussed elsewhere. Suffice it to say that in 1966; the military regime:
- Suspended the Legislative and Executive institutions in the Regions and at the
- Vested state powers on the Supreme Military
- Invested on itself, the power to make laws, for the peace, order and good government of Nigeria or any part thereof, with respect to any matter
- Legislated by decrees (Federation) and edicts (regions). Federalism was abolished and replaced with Unitary Structure in May 1966. On July 2, 1966 a second military coup d’etat restored the federal structure.
- Maintained that Nigeria is one indivisible and indissoluble sovereign state.
- Curtailed individual rights, and the capacity of the judiciary to execute its jurisdiction and powers, [abrogated pre-existing legal order except to the extent that it was prepared to concede or preserve] and vested, vis et armis, sovereignty on the Federal Military Government.
See the Constitution (Suspension and Modification) Decrees, 1966-84.
The Constitution of the Federal Republic of Nigeria, 1979 and 1999
The Constitution of the Federal Republic of Nigeria 1979 and 1999 provided for distribution of powers and functions among the three departments of governance (Legislative, Executive and Judiciary). There should be no interference except to the extent to which the constitution allows such power of interference.
Where Lies the Sovereignty or Supremacy?
In all these things, who has been the sovereignty?
Has it resided on one person or body of persons all through or on different persons and bodies at different times?
Has sovereignty always been total or slit?
Remember that Sovereignty or Supremacy is concerned with the nature and extent of power and with the question of obedience to power.
On the notion of obedience, consider the following:
Command Nature of Obedience
SELF-ASSESSMENT EXERCISE 2
Where would you say sovereignty or supremacy resides in a Military Regime?
The Bench Mark of Supremacy or Sovereignty
- Bodin has said that the ruler is not totally absolute, but subject to the Constitution because it is the Constitution that makes him a The constitution must, according to him, accord with the “Laws of God and Nature to which all kings and princes are subject.”
Hooker (1554 – 1600), Grotius (1583 – 1645) Hobbes (1588 – 16790 Locke (1632 – 1704) and Rousseau (1712 – 78) enunciated and expanded the social contract theories. They are consensual that man, by contract with fellow men surrendered his personal sovereignty – the “summe” of rights of nature – to the sovereign (the state or a ruler or volonte generale). The compact was in pursuance of man’s quest for a society for his own good (Hooker), to alleviate the ‘solitary, poor, nasty, brutish, and short’ life in a state of nature (Hobbes), to preserve his property, life, liberty and estate of man as he lived in the golden era (Locke) or to defend and protect with common force, the person and goods of each associate. (Rousseau). The surrender was to the Prince (Bodin), ruler (Hooker), sovereign command (Hobbes) general will of the community rather than a single sovereign (Rousseau) or the community which acts through its representatives (the Legislative ), itself a creation of the people (Locke)
Whether the social contract theory is real or a fiction and whether or not it has been borne out by anthropological research is not the issue here. Our concern is their conception of sovereignty or supremacy.
- According to the founder of the English analytical positivist, Jeremy Bentham (1748 – 1832) and his disciple, John Austin (1790 – 1859), the sovereign is a superior, who may be a person or assemblage of persons whose act or command is law and whose subjects are supposed to be in the habit of obeying him. In their view, the sovereignty does not receive order from anybody and is above the Austin believed that every developed state has to have a “sovereign’ who makes laws in the form of commands which are habitually obeyed and whose legal authority is absolute, indivisible and without limit.
- The Sovereignty may be subject to certain checks. Bodin’s Prince is subject to the Constitution which made him Prince and to the law of god and nature. In other cases, the fundamental terms of the compact are over-riding.
If the sovereign (for example) commands a man to kill, wound or maim himself or not to resist those that assault him or to abstain from the use of food, air, medicine, or any other thing without which he cannot live, yet hath that man the liberty to disobey “Locke and Roussean have argued that the Sovereign is the Community, and the government acts in fiduciary capacity, like what the board of directors is to a registered company.
The State must be distinguished from its ruler. When man entered into compact with fellow men and gave up personal sovereignty, the state evolved. (Hooker) Machicavelli (1469 – 1527) saw the preservation and success of that State as an end. There is no independent community (or state) governed by law without some authority ‘whether residing in one person or in several whereby the law themselves are established and from which they proceed.
Bodin in his book Six Books of the Republic wrote:
It is the distinguishing mark of the sovereign that he cannot in any way be subject to the commands of another, for it is he who makes laws for the subjects, abrogates law already made and amends absolute law. No one who is subject either to the law or to some other person can do this. That is why it is laid down in the civil law that the Prince is above the law, for the word law in Latin implies the ‘command of him who is invested with sovereign’.
Wheare concludes saying that Parliament is sovereign and supreme and there is no legal limits on its power of amendment in the United kingdom.
Sovereignty (or Supremacy) in Relation to Nigeria
WHICH IS superior in Nigeria today – the Legislative, Executive, Judiciary or Constitution?
Legislative
The constitution defines the functions, powers and limits of the legislature, executive and judiciary, constituted some 67 or more important functions in the exclusive Legislative list and made them exclusive to the Federal Government. It can enact any law regardless of its badness, or goodness, morality or immorality and cannot be questioned. By various Constitution (Suspension and Modification) Decrees 1966 – 93, the military concentrated legislative and executive powers in itself, ousted jurisdiction of the court at its discretion, and subordinated the Constitution to its decrees. The Legislature under the Constitution, 1979 and 1999, may impeach the governor of a state or President of the Federation, approve or disapprove ministerial or certain other appointments, criticize or censor the executive or even bring down a government. But the powers of the national and state assemblies are subject to the Constitution.
SELF-ASSESSMENT EXERCISE 3
What is the import of the Constitution of Federal Republic of Nigeria, 1999, Section 4!
Executive
The constitution, 1979 and 1999 united the heads of state and of government in the President and vested him with executive powers of the federation. He is also the commander-in-chief of the Armed Forces. Executive Powers extend to the execution and maintenance of the Constitution and all laws, appointment of minister and Chief Justice of Nigeria among others. The Executive may veto a legislation or even dissolve the legislature. The President in the right of the dignity of his office, enjoys (but rarely exercises) inherent prerogative powers and conventions that are outside the ordinary course of the law and above all persons.
SELF-ASSESSMENT EXERCISE 4
- What does the 1999 constitution of the Federal Republic of Nigeria say of the Executive and its functions?
- What do you understand by Prerogative Powers and Conventions?
Judiciary
The constitution has vested on the judiciary, judicial powers of the Federation. The Nigerian Courts may in certain circumstances legally and legitimately review the constitutionality or legality of an Act of the legislature and propriety of Administrative acts of a quasi – judicial nature; they may declare a legislation unconstitutional and refuse to apply or enforce it.
SELF-ASSESSMENT EXERCISE 5
Write a concise note on section 6 of the 1999 Constitution of the Federal Republic of Nigeria.
You have seen how government functions have been shared among the three organs (Legislature, Executive and Judiciary). Hardly is anyone completely devoid of quasi legislative, quasi executive and quasi judiciary functions.
Hamilton says that this does not by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both and that if the will of the legislature, declared in its statutes, stands in opposition to that of the people declared in the Constitution, the judges ought to be governed by the latter rather than the former.
Obviously, the search for sovereignty within a federal constitutional system is an unrewarding pursuit. However, it seems that in the Constitution of the Federal Republic of Nigeria lies the explanation of Legislative power to make laws, the executive to administer or to enforce and the judicial power to adjudicate. The Constitution then is the primary source of legal authority in Nigeria. We have to live and abide with all its provisions, which have been fashioned for the governance of the people of Nigeria.
According to Tobi JSC:
As our Country is sovereign, so too our Constitution and this court (Supreme Court) will always bow or kowtow to the sovereign nature of our Constitution, a sovereign which gives rise to supremacy over all laws of the land. “(Olafisoye V FRN, 2004), “A government operating under a written Constitution must act in accordance therewith; any exercise of power outside the Constitution or which is unauthorized by it is invalid. The Constitution operates therefore with supreme authority and it is this recognition of the constitution as a superior law that compels the greater obedience, which people are prepared to give it.
It is a striking and fundamental feature of Federation, therefore that its Constitution is supreme and binds all persons, governments and authorities, institutions and among the federating States. The Legislative may pass any law it pleases without legal inhibitions whatsoever. But the court exercises power to decline to apply and enforce any law purportedly passed by the Legislature which violates the Constitution. The constitution is supreme law.
CONCLUSION
You have come to the end of the discourse concerning parliamentary or constitutional sovereignty or supremacy. You have noted the differences between both. Although supremacy is indivisible, its residence has not been static. Rather, its location shifted as the country also drifted from traditionalism, to colonialism, West Minister Parliamentary system, Republicanism, Military dictatorship and back to republicanism.
SUMMARY
In customary jurisprudence, the monarch is considered a divine King or ruler and as such could intercede with physical and spiritual foxes to shape the overcome of events (Wayre Mornson 2006). The positivists and exponent of the same contract theory profess the Queen – in parliament as sovereign as indeed it was in the colony and protectorate of Nigeria (Antia, Locks, Hobbes, Rousseau). Now, however, the constitution is supreme, except under the military when it was subordinated to a decree. (Nwabueze and case law).
TUTOR-MARKED ASSIGNMENT
“Every developed state has to have a “sovereign” who make laws in the form of commands which are habitually obeyed, and whose legal authority is absolute, indivisible and illimitable” (Austin). Discuss with reference to the legal position in Nigeria.
REFERENCES/FURTHER READINGS
De Smith, S. A. (1977). Constitutional and Administrative Law Penguin Books.
Karibi Whyte,A.G. (1987). The Relevance of the Judiciary in the Polity in Historical Perspective, NIALS.
Nwabueze, B.. Military Rule and Constitutionalism.
Ogwurike, C. (1979). Concept of Law in English – Speaking Africa, Nok: Lagos.
Sokefun, J. A. ed. (2002). Issues in Constitutional Law and Practice in Nigeria, Ago Iwoye.
Wade, G. and Bradley (1965). Constitutional Law, Longman.