PARLIAMENTARY SUPREMACY

CONTENTS

1.0      Introduction

2.0      Objectives

• Main Content
• Definition of Terms: The Constitution
  • The Constitution
  • Unwritten and Written Constitution
  • Unwritten Constitution
  • Written Constitution
• Unwritten Constitution
• Written constitution
• Written and Unwritten Constitution
• Sovereignty (or Supremacy)
• Sovereignty or Supremacy in Pre-Modern Nigeria

4.0 Conclusion

5.0 Summary

6.0 Tutor-Marked Assignment

7.0 References/Further Readings

INTRODUCTION 

A System of parliamentary government involves the supremacy of parliament. Republicanism on the other hand espouses the supremacy of the constitution. Military revolution or coup d’etat abrogates, suspends and modifies existing constitutional instrument. The pre-colonial societies had element of permanence and regularity which are the  indices of political society as well as comparative arrangements for the solution of their political, social and economic problems, although they lacked particular institutions of government as we know them today. In this unit, we shall examine the issue of sovereignty or supremacy in pre- colonial Nigeria and during the colonial era.

OBJECTIVES

At the end of this unit, you should be able to: describe a Constitution;

distinguish between sovereignty and supremacy;

identify the institution, however rudimentary, for solution of politico- socio-economic problems in pre-modern Nigeria; and

locate where supremacy or sovereignty resides.

MAIN CONTENT

Definition of Terms

The Constitution

The term “Constitution” may be described in the following ways:

Formal document having the force of law by which a society organizes a government for itself, defines and limits its powers, prescribes relations of its various organs inter se and with the citizens.

Document (or a book) having a special legal sanctity which sets out the framework and the principal functions of the organs of government of a state and declares the principles of governing the operation of those organs (Wade & Bradley).

The means by which a people organize themselves into a political community and define the aims and objectives of their association, the condition of membership, the organs and powers necessary for the conduct of the affairs of the association and duties and responsibilities of those organs to the individuals (Nwabueze, B.).

Organic Law or ground-norm of the people, formulation of all the laws from which the institutions of state derive their creation, legitimacy and very being; the unifying force into nation apportioning rights and imposing obligations on the people who are subject to its operation.

Very important composite document or a group of documents embodying a selection of the most important rules about political authority and power, the location, conferment, distribution, exercise and limitation of authority and power among the organs of state or about the government of the country (de Smith). The rules which regulate the structure of the principal organs of government and their relationship to each other and determine their principal functions. Those laws and practices (as in unwritten Constitution) and the document containing those laws and practices (as in a written constitution) which regulates the exercise and distribution of sovereign powering a state. –“fons et origo of the exercise of  powers, the enjoyment of rights, discharge of obligation” (Karibi Whyte).

There is no hard and fast definition of the term ‘Constitution’. It is a lofty declaration of objectives, description of organs of government in terms of their import (devoid of enforceability), - a legal restraint on government and supreme law and bedrock of constitutionalism. It expressly states the aims and objectives of the people, abolishes the federal or state government, Controls the relationship between the tiers of government, defines and preserves personal liberties even though not justiciable and also makes provisions which enables the government to perpetuate itself. Thus, the constitution is a symbol and instrument of constitutionalism, an instrument of restraint on government and the fundamental law regulating the organization of government.

Unwritten and Written Constitution

A written Constitution, unlike an unwritten Constitution cannot be changed, amended or repealed like an ordinary enactment: (Sokefun J.A.) It is rigid. A rigid constitution is one under which certain laws generally known as fundamental Laws cannot be changed in the same manner as ordinary laws (A. V. Dicey).

Some written Constitutions are not rigid. For example the constitution  of Zealand is written and alterable by a simple majority.

What is of essence is not whether a constitution is written, unwritten, rigid or flexible as such by the people. The Swiss Constitution was adopted by a constituent assembly and ratified in a plebiscite. The United States Constitution was drafted, subjected to venomous discussion on popular platform, then to a referendum, ratification in various states and formal promulgation by pre-existing state authority.  In these states, the constitution is law ordained and established by the people and their force and efficacy to this fact that they can be said to be established by the people to be governed by it.

A Constitution Drafting Committee drafted the Constitution of Nigeria and the supreme Military Council promulgated it into law. They acted as organs of existing political society declaring in its preamble:

“WE THE PEOPLE OF THE FEDERAL REPUBLIC OF NIGERIA DO HEREBY MAKE, ENACT AND GIVE TO OURSELVES THE FOLLOWING CONSTITUTION.”

A Constitution may be written or unwritten.

Unwritten Constitution

The Great Britain has an unwritten Constitution. However there are certain statutes which though are not different from others are held with peculiar veneration. Examples are:

• The Margna Carta 1215
• Petition of Rights 1628
• Acts of Settlement 1701
• The Act of Union with Scotland 1706
• The Parliament Act, 1911 -49
• The Supreme Court of Judicature Acts 1873-1925
• The Statute of Westminister 1931
• The Ministers of Crown Act. 1946 – 75
• The Nigerian Independence Act.

Written Constitution

Among countries with written constitution are Nigeria, United States of America, the Common Wealth of Australia, and Canada etc. A written constitution was adopted for African in order to launch them into their new independent existence and impose checks against  majority power in the interest of ethnic, racial or religious minorities. To this end, their constitution is an act of conscious creation in a written form, a purely political (not legal) act, not having been enacted through its regular procedure for law making. The drafters may be regarded (or at least regard themselves) as organs of existing political society.

SELF-ASSESSMENT EXERCISE 1

What do you understand by the term Constitution?

Sovereignty or Supremacy

Sovereignty refers to:

• Supreme dominion, authority or rule
• Supreme political authority of an independent state
• Person (e.g. Absolute Monarch), body (e.g. Parliament, national or state Assembly
• or supernatural entity (as in theocracy), vested with independent and supreme authority or power to make and enforce laws and demand obedience of subjects supremacy, the right or demand obedience and exercise
• One or a body who is obeyed because he is acknowledged to stand at the top, whose will must be expected to prevail, who can get own way and make others so his because such is the practice of the country.
• Etymologically means merely
• Sovereign or sovereignty. This connotes different things. Dicey says that the Queen in council is the legal sovereign; the electorate, the political sovereign; the state, a national sovereignty and parliament, parliamentary sovereignty. Some writers for this confusion, prefer the term “Supremacy”.

SELF-ASSESSMENT EXERCISE 2

1. What do you understand by the term “Sovereign; Sovereignty”?
2. Who is a sovereign?

Where Lies Sovereignty or Supremacy

Let us attempt to locate where sovereignty or supremacy resides. To do so, we have to under-take, in a nutshell, an exploration of Pre-colonial, Colonial and Modern Scheme of things.

Power in Pre-Colonial Nigeria

In Pre-colonial times, what is today called Nigeria was an aggregation  of self-sufficient, widely disintegrated and uncoordinated non-urban independent and hostile settlements. These settlements by absorbing one another in the process of growth and by conquest grew into great hierarchical kingdoms and empires like the Oyo Empire, Kanemi – Bornu, and Sokoto Caliphate. Subjects submitted to their family heads, family heads to clan-heads, clan heads to village heads and  village heads to their monarchs in areas with a Chief or to the - Aro Chukwu Oracle and other governing bodies in areas without a Chief.

The Monarchs are supreme, and all powers legislative, executive and  the judiciary resided in them. These were checks. For example, a Monarch may by reason of misrule be asked to open the calabash which is an invitation to commit suicide.

SELF-ASSESSMENT EXERCISE 3

Sovereignty was hierarchical in pre-colonial times. Discuss?

Attempt to locate whose sovereignty lay in pre-colonial times in the  area now called “Nigeria.”

The sovereignty or Supremacy in Colonial Times

Colonial rule commenced in 1861 and terminated at independence in 1960 – a period of nearly 100 years. This period may be broken down into phases:

1. Total dependence on Imperial Parliament (1861-1921). The British Crown acquired Lagos by the Treaty of Session, 1861, the Sokoto Caliphate, Benin and Aro Chukwu by Conquest and most to the rest of Eastern native states by bilateral arrangements. The implication is that Lagos or the Yoruba Empire, and the Northern Provinces became mere extension of the British Isles; while the native states east of the Nigeria were British Protected. The Imperial Parliament empowered the Crown to legislate by order – in-Council for the colony, protectorates and foreign states.

The combined effect of the supreme court ordinance, 1863, southern Nigeria order-in-Council 1899 and the Northern Nigeria order-in- Council 1899 was to establish English type of courts and empower them to observe, apply and enforce the common law of England, Equity, Statutes of General Application as at 1874 (later Varied to 1900) as well as native laws and custom which were not repugnant  to natural justice, equity and good or incompatible with any local enactment. Appeal from certain courts (Native courts and Provincial court) lay to the Resident and the High Commissioner respectively, and later to the Lieutenant Governor.

The Governor was sole executive. He was appointed by the crown and responsible to the secretary of state. Thus, it can be said that by 1900, the British Crown had acquired full and complete legislative, executive and judicial powers over the hitherto to independent and autonomous native states now constituting Nigeria.

Between 1901 and 1906, the various native states had been merged into two Protectorates – the Colony of Lagos and Protectorate of Southern Nigeria and the Protectorate of Northern Nigeria. Both Protectorates amalgamated in 1914 to form the protectorate of Nigeria in 1914.

SELF-ASSESSMENT EXERCISE 4

1. Describe the constitution the Colony of Lagos and Protectorate of Nigeria.
2. Compare Sovereignty in the traditional legal system and the colonial legal

Emergence of Written Constitution in Nigeria

Nigeria Order-in-Council, 1913 established for Nigeria, a Nigeria Council. It was an advisory and deliberative council. A legislative Council for the Colony of Lagos was also set up. The Legislative, Executive and Judicial structures already in place were more extended  to the whole country. 

Richard Constitution, 1946

This Constitution established for Nigeria (i) a legislative Council and

(ii) Executive Council – comprising officials only. It also vested legislative powers in the governor absolutely but with the advice of the legislative council. Both Legislative and Executive Councils were in 1947 replaced with only one Legislative Council comprising unofficial majority and the governor thereafter legislated with its advice and consent. The supremacy which had been usurped had commended its return journey by installment.

Major reforms of the judiciary occurred in 1933 with the passing in that year of the Supreme Court (Amendment) ordinance. The Protectorate Courts Ordinance, West African Court of Appeal Ordinance and the Native Courts Ordinance. The combined effect was to establish the Magistrates and High Court systems as we have them today and remove from the jurisdiction of Administrative officers matters which are judicial. However, judicial functions remain shared between the executive and judicial organs of government. Additional reforms occurred in 1943 and a separate law for juveniles and juvenile courts were created.

McPherson Constitution, 1951

This Constitution formalized the division of Nigeria into three regions with headquarters in Kaduna, Ibadan and Enugu. It established Central and Regional legislatures controlled by elected majority, a council of Ministers, majority of which were elected. Natives for the first Time began to participate in the legislative process. But the Governor still legislated without advice in specific area and also exercises a casting vote.

In keeping with Lyttleton constitution, 1954, members of the legislative Council and the Executive Council were elected except the Governor-General (Centre), Governors (Regions) and three officials. The Judiciary was regionalized. The Federal Supreme Court  replaced the West African Court of Appeal. Appeals lay to Her Majesty’s Judicial Committee of the Privy Council, UK.

SELF-ASSESSMENT EXERCISE 5

Examine critically how the provisions of the constitutions of 1922 and 1954 affected the Parliamentary Supremacy or Constitutional Supremacy in Nigeria.

From 1957, the executive began to be elected representative; the regional governor appointed the premier and the Governor –General, including the Prime Minister from the majority party. The Regional premiers and the Governor General (or in his absence, the Prime Minister) presided over the Executive Council of the Region and Federation respectively until 1960.

CONCLUSION

In Pre-colonial settlement later known as Nigeria, laws were unwritten and supremacy or sovereignty resided in the monarch. There was no written constitution until 1922 when Clifford constitution was promulgated. Then followed a succession of constitutions one after another, namely; Richards Constitution 1946, McPherson Constitution, 1951, Lytleton Constitution, 1954 and the Independence Constitution 1960. In the colony and protectorate of Nigeria as was as the Federation of Nigeria at independence, the Queen in parliament was supreme.

SUMMARY

In this Unit, you have learnt about the definition and types of constitutions. You should be able to distinguish sovereignty and supremacy and identify where each resided at different stages of development in pre-modern Nigeria.

TUTOR-MARKED ASSIGNMENT

What do you understand by Parliamentary Supremacy?

REFERENCES/FURTHER READINGS

De Dmith. (1977).Constitution and Administrative Law Harmands Worth. Penguin.

Nwanbueze, B. (1973). Constitutionalism; Hurst & Co, London. Sokefun, J. (2002). Issues in Constitutional Law and Practice in

Nigeria, OOU Ago-Iwoye.

Wade and Philips. Constitutional Law :Longman.

 

 

Unit 1             Constitutional   Development   of    Nigeria:    (Pre-colonial Nigeria to British Rule)