CONSTITUTIONAL SUPREMACY

CONTENTS

1.0 Introduction

2.0 Objectives

• Main Content
• Meaning of Constitution
• Constitutional Supremacy
• Constitutional Supremacy & Some Human Rights
• Importance of Constitutional Supremacy

4.0 Conclusion

5.0 Summary

6.0 Tutor-Marked Assignment

7.0 References/Further Readings

INTRODUCTION

Constitutional supremacy is closely related to the rule of law. The latter is general while the latter is particular. Constitutional supremacy is a concept that rejects the rule of  man  but  prefers the management of the affairs of men and things by institutions established  in accordance with law. It seeks to avoid a situation where the whim and caprice of man would determine the nature or character of benefits or burdens available before any person or groups of persons.

In the CFRN, the concept is alive and well especially when  we  look  at  the  detailed  provisions of Chapter IV which provides for  the  fundamental human  rights  of  the citizens. We must recall that these provisions are to be read or understood in the light of judicial interpretation.

The concept is particularly significant for Nigeria in so far as it seeks to assure everyone including the minority groups of equal protection as can be deciphered through provisions on human rights and on Federal Character.

OBJECTIVES

At the end of this Unit, you will be in a position to:

• Assess constitutional supremacy against the background of the CFRN
• Apply the concept in your  dealings  with  your  family  members,  colleagues, business partners

MAIN CONTENT

Meaning of Constitution

Constitution  is  a  document  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 governing the operation of those organs. In other words, Constitution is the supreme document of a politically organized State. For example, the  Constitution  of  the Federal Republic of Nigeria (CFRN) 1999 is such a document. Constitution can best be defined or described by its utility as follows:

• It is the basic document of a State which guides the relationship amongst the three arms of government in their management of the affairs of State;
• It regulates the rights and duties and privileges of public officials,
• It governs the relationship between these governmental actors on the one hand and the citizens on the other; and
• It codifies the corpus of rights of citizens.

Constitution may be written or unwritten. A State which governs its  citizens on  the basis  of  the above fundamental legal concepts codified in a document is said to operate a written Constitution. States in this category include the US, India, Canada, and Nigeria. On the other hand, a State which administers the affairs of its territory without any such  document  is  claimed to run an unwritten Constitution. A ready example is the United Kingdom. The advantage that the written Constitution has over the unwritten  one  is  that  it  is  easily accessible to everyone. In other words, it is a convenient document of reference.  Whether written or otherwise, the Constitution is a roadmap meant to guide the legislature,  the  executive, the judiciary and the administrative agencies in their governance of the State.

Constitutional  Supremacy

The term ‘supremacy’ indicates the highest authority or rank and could even be known as being in an all-powerful position. The concept of constitutional supremacy is predicated on the Constitution. It is a specie of the doctrine of rule of  law.  The relationship between the two is that the latter is the ultimate precursor of the former. Constitutional  supremacy  is,  as  the phrase implies, the rulership or sovereignty of the Constitution. Inherent supremacy stems from the generic character of the constitution. The constitution is the authoritative statement of the law on a subject; where a legislative authority claims to legislate in addition to what the constitution had enacted, it must show that, and how, it has derived its legislative authority to do so from the constitution. The content of the constitution is not determined by compliance with any natural legal requirements or preceded by other binding material legal instrument. The constitution is the primacy regulator of basic social relations. The supremacy of the constitution in a contemporary nation has been recognized to be the constituent component of the constitutional state founded on the rule of law. In constitutional supremacy, it is  the  constitution.

Constitutional supremacy refers to the system of government in which the law-making freedom of parliamentary supremacy cedes to the requirements of a Constitution. It refers to the system  of government in which the law making freedom of parliamentary sovereignty abandons to the requirements of a constitution as the constitution is supreme. It could be inferred that all laws passed has to be in line with the constitution.

Under the Kenyan constitution, Article 2 (1) provides for the supremacy of the constitution that : the constitution is the supreme law of the republic and binds all persons and state organs at both levels of government.

Article 2 (b) provides that : the validity of the Constitution is not subject to challenge by or before any court or any other state organ.

Further by section 2 (4), any law, including customary law that is inconsistent with the constitution is void to the extent of its inconsistency and any acts or omission in contravention of the constitution is invalid.

There are several implications that constitutional supremacy has for citizens.

First, it signifies the rule of law as  opposed to  the rule of  man. The further implication of  this is that everybody is equal  before  the  law;  and  no  power  can  be  exercised arbitrarily over the citizens. Again, it means that the citizens benefit from the human rights provisions of the Constitution. For example, Chapters IV and II of the CFRN

1999 respectively provide for civil and political rights, and social,  economic  and cultural  rights. Note that while Chapter IV is enforceable, Chapter II  is  not.  But  we must keep  in  mind that that a right is not enforceable today does not detract from the possibility of its being enforceable in the future. And, in any case, the mere fact that it is codified will assist rulers and the ruled alike in their conduct of private and public affairs.

The meaning of the constitution as a fundamental law and as a supreme judicial act has been established ever since the time of F. Lassal in Continental Europe as well – albeit with some degree of inconsistency, in view of the Magna Carta Act since the reign of King Edward III in England.

Constitutional supremacy has a universal effect encompassing all physical and legal persons within the nation state territory. Therefore, compliance of legislation to the Constitution is an immediate effect of constitutional supremacy.

Constitutional supremacy was made abundantly clear in the case of Ukpe v. Nkem (2003) AHRLRL 208 NgCA2000) per Wali JSC in 442 B when he said:

“I have no hesitation in coming to the conclusion that any customary law that sanctions the breach of an aspect of the rule of law as contained in the fundamental rights provisions guaranteed to a Nigerian in the Constitution is barbarious and should not be enforced by the court”.

Pats-Acholonu JCA also said;

….time was when the law governing the native community was force of custom – good or bad, and whether repugnant or not. Now in the 21^st century, we are governed by a living law

– the Constitution fashioned after the Constitution of the older democracies”.

In  A.G.  Abia  State  v.  A.G.  Federation [2002] 6 NWLR (Pt. 763) 264,       the Supreme Court, referring to S. 1(1) & (2) reiterated the hierarchy of our laws as follows:

The Constitution is what is called the Grundnorm and the fundamental law of the land.  All  other legislations in the land take their  hierarchy from the provisions of  the Constitution. By the provisions of the Constitution, the laws made by the National Assembly come next to the Constitution; followed by those made by the House of Assembly of  a  State.  By virtue  of  S. 1(1) of the Constitution, the provisions of the Constitution take precedence over any  law enacted by the national Assembly even though the National Assembly has the power to amend the Constitution itself.”

In the same vein, the Court of Appeal in the case of Amaechi v.  INEC [2007] 9 NWLR (Pt.  1040) 504 at 533 said as follows:

“The Constitution of the Federal Republic of  Nigeria  is  the  grundnorm of  the country.  It is, in fact, the  “fons  juris”  from  which  all  other  laws  flow  and derive  their  validity.  It  is the organic law which prescribes rights, duties, powers and responsibilities of all  the organs derivable from it. Courts are organs created by the Constitution and it is the Constitution majorly and principally that defines their jurisdiction. It is the substantive law which makes provisions for the procedural laws or other statutes applicable in the various courts established by it.”

Also, in the case of INEC v. Musa (2003) AHRLRL 192 (NgSc), it was held per Emmanuel Olayinka Ayoola that:

“Firstly, all powers, legislature, executive and judicial, must ultimately be traced to the constitution. Secondly, the legislative powers of the legislature cannot be exercised inconsistently with the Constitution. Where it is so exercised, it is invalid to the extent of its inconsistency. Thirdly, where the constitution has exhaustively in respect of any situation, conduct or subject, a body that claims to legislate in addition to what the constitution has enacted must show that it has derived the legislative authority to do so from the constitution. Fourthly, where the constitution sets the condition for doing a thing, no legislation of the National Assembly or of a State House of Asembly, can alter these conditions in any way, directly or indirectly unless of course, the constitution itself as an attribute of its supremacy expressly so authorized.”

What the Supreme Court has restated is that the  CFRN  tops  the  hierarchy of  the Nigerian legal order. Paraphrasing Kelsen, the Constitution is the basic norm, or the grundnorm, which occupies the highest position in the normative legal order. Every other  law  within  the normative system of norms must be validated by the grundnorm, that is, such law must not be inconsistent with the grundnorm. Any inconsistent law is, to the extent of such inconsistency, null and void. Simply put, the Constitution is superior  to  all  other  laws.  Thus,  in  the Nigerian legal system, all laws including Acts of the National Assembly are inferior to the CFRN. You should note that this reasoning is unaffected by the  competence  of  the National Assembly to amend or modify the CFRN.

We understand that, generally speaking,  each  of  the  arms  of  government  is independent in its own ‘territory. However, that independence does not empower any arm of government to violate or to act inconsistently with the Constitution. The issue arose in the case  of A.G. Bendel v. A.G. Federation & 22 Others. [1982] All NLR 85 SC.

SELF ASSESSMENT EXERCISE 1

1. Explain what is meant by constitutional supremacy
2. The idea of constitutional supremacy is not applicable to ‘internal affairs’ of an arm of government. Do you agree?

Constitutional Supremacy & Some Human Rights

The fertile ground on which constitutional supremacy is usually tested is in relation to the protection or violation of  Chapter  IV  which  provides  for  fundamental  human rights  viz  - the right to life (S.33); right to dignity of human person  (S.34);  right  to  personal  liberty (S.35); right to fair  hearing  (S.36);  right  to  private  and  family life (S.37); right to freedom  of thought, conscience and religion (S. 38); right  to  freedom of  expression and the press (S. 39); right to peaceful assembly and association (S. 40); right to freedom of movement (S. 41); right to freedom from discrimination (S. 42); and right to acquire and own  immoveable  property anywhere in Nigeria (S. 43). We shall take a sample of these specific provisions as interpreted by case law.

Right to Fair Hearing

In connection with the right to fair hearing, S. 36(1) provides:

In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence or impartiality.

Fair hearing comprises so many ingredients. First, it contains the Latin maxims – audi alteram partem and nemo judex in  causa  sua.  Audi  alteram partem  means  that  the other side  must be heard. In other words, a court, tribunal or arbitral body must not determine a matter upon hearing only one side to the dispute. Any decision produced by that approach or process is a nullity. Nemo judex in causa sus means no judge can be a judge in his matter. It is  a  rule  against bias, a rule that disqualifies a person occupying an adjudicatory office from seating in judgement over a matter in respect of which he has an interest. See the case of  Alakija v. Medical Disciplinary Committee[1959] 4 F.S.C. 38.

Here, a medical practitioner alleged that the Medical Disciplinary Committee (MDC) did not conduct the enquiry in compliance with the rules of natural justice in the sense that the Registrar who was actually the prosecutor participated in the Committee deliberations that convicted him. The Supreme Court accepted the  contention  of  the appellant  to  the  effect that the decision of the Committee was unconstitutional for violating the rule against bias.

Under S. 36(5) (c), a person  charged  with  a  criminal  offence  is  entitled  to  defend himself  in person or through the  agency  of  a  legal  practitioner  of  his  choice.  This provision came up for consideration in the case of Awolowo v. Minister of Internal Affairs[1962] L.L.R. 177. The issue was whether the legal practitioner contemplated by this provision could be one from any jurisdiction. In what one may suggest to be an act  of  judicial legislation, the  Supreme Court held that the chosen legal practitioner must be the one who is qualified or competent to practice in Nigeria as of right.

Freedom of Association and Assembly

Pursuant to S. 40, every person is entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.

Under this provision, every citizen can associate or  assemble for  a  common purpose provided it is a peaceful one. In other words, they must not associate or assemble in a manner  as to breach the peace of the land. Nigerians are used to agreeing or disagreeing with one governmental policy or another. One of the avenues through  which  they  vent  their disapproval of a policy is by associating to aggregate their grievances for the attention of the powers that be. Because the government of the day was intolerant of such associations, it had always resorted to regulating or abrogating the associations.  Associations  like National Union of Nigerian Students (NUNS) [which later metamorphosed into the National Association of Nigerian Students (NANS)], Academic Staff Union of Universities (ASUU), amongst others, had experienced one form of ban or another.

In a good faith or bad faith bid to avoid breach of the peace anytime there was a  rally or  protest, the National Assembly enacted the Public Order Act 1979 Cap 42, LFN, 2004.  Pursuant to the Act, the Governor of a State through a Police Officer is empowered to regulate or stop assemblies, meetings and processions. Any person who is desirous of convening any assembly or meeting or of forming any procession in any public road or place of public resort must apply for and obtain the licence or permit of the governor.  Any  violation  was  punishable by fine and imprisonment. It so happened that many genuine applications were turned down by the Police and any rally or protest organized in the absence of such approval was declared unlawful and the organizers arrested and detained.

However, in the recent case of some  political parties against the  Inspector General of Police, the Court of Appeal declared that the  Public Order Act  was  unduly restrictive of the freedom of association and assembly and, therefore, unconstitutional. In the suit instituted by 12 political parties, the Federal High Court, Abuja Division, in 2005, had voided the Public Order Act Cap 382, Laws of the Federation of Nigeria 1990. Besides, the Federal High Court  judge  also  issued an order of perpetual injunction  restraining  the  Inspector-General  of  Police,  his agents, privies and servants from preventing aggrieved citizens of Nigeria (including the plaintiffs) from organizing or convening peaceful assemblies, meetings and rallies against unpopular government policies. Dissatisfied with the decision, the IGP appealed.

On Monday, 10 December 2007, a three-man panel of the Court of Appeal, Abuja Division, dismissed the appeal. The presiding justice, Justice Rabiu Danladi Muhammad, JCA, said that the offensive provision of the Public Order Act requiring Nigerians to procure police permit before holding rallies was not only barbaric but also alien to the nation’s democracy.

Freedom of  Movement

By virtue of S. 41, every citizen of Nigeria has the  right  to  move  freely throughout Nigeria and to reside in any part of thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom. However, the facts of Shugaba V. Minister of Internal Affair revealed Federal Government’s brazen violation of this provision when its  agents deported  or  expelled  a   Nigerian   –   Shugaba Abdulrahaman Darman – out of Nigeria in order to satisfy parochial party sentiments. Shugaba, the applicant – who was a member of the defunct Great Nigeria People’s Party (GNPP) and the majority leader in  the  Borno  State  House of Assembly –  was  deported  by  the  Federal  Government  and  its  agents  from Nigeria to Chad on 24 January 1980. In an application brought under the Fundamental Rights (Enforcement Procedure) Rules 1979, the applicant sought the enforcement of his fundamental rights and for redress against his unlawful deportation from his native country and unlawful interference with his freedom of movement in Nigeria.

The Court found that the deportation of the applicant was a  product of  political victimization  by members of a rival political party – National Party of Nigeria (NPN) – and declared the action of the respondents oppressive, arbitrary, unconstitutional, null and void.

Importance of Constitutional Supremacy

The concept is particularly important to a multi-ethnic, multi-religious country like Nigeria where variety is the spice of life. Several segments of the Nigerian society complain bitterly of governmental neglect and marginalization, and claimed that, though they contribute significantly to the baking of the national cake, they are edged out in its sharing. You should recall that some of these bottled up sentiments have frequently found manifestations  in  religious and political crises, in agitations from the Niger Delta, and in outright criminality. In order to ameliorate, if not erase, these perceptions from our national  consciousness  in  a peculiar country where the majoritarian principle of democracy seems  to  unduly  favour persons from the three major ethnic groups to the  detriment of  other  minority ethnic groups, the Constitution provides specially for human rights, and Federal Character, amongst others.

Federal character is an affirmative governmental policies geared towards giving a sense of belonging to every federating State (and, by extension, every citizen) in  the administration of the country. The essence is to guide against a situation where a few persons  or  group  of  persons are placed in the commanding heights of our socio-economic and political administration at the expense of other citizens. They are copiously provided for in the CFRN. The relevant part of S. 14 provides as follows:

(3) The composition of the Government of the Federation or any of  its agencies and the  conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and  also  to  command  national  loyalty,  thereby ensuring that there shall be no  predominance  of  persons  from  a  few  States  or  from a few ethnic or other sectional groups in that Government or in any of its agencies. See also S. 14(4) which comprises equivalent provisions relating to the federating States, local government councils and governmental agencies.

Pursuant to Article 14(3), the Federal Government is very sensitive  to  the  issue  of appointment of ministers, ministers of States, heads of governmental parastatals, etc. What the government does is to try as much as possible to appoint persons to offices on the basis of equality of the federating States. In order to demonstrate the seriousness with which  the principle of Federal Character is viewed, S. 153 of  the  CFRN  sets  up  some  Federal Executive Bodies including the Federal Character Commission. Paragraph 8 of the  Part  1  of the Third Schedule of the CFRN provides for the powers of the Commission as follows:

• In giving effect to the provisions of S. 14(3) and (4) of this Constitution, the  Commission shall have power to –
• work out an equitable formula subject to the approval of the National Assembly for the distribution of all cadres of posts in the public service of the Federation and of the States, the armed forces of the Federation, the Nigeria Police Force and other government security agencies, government owned companies and parastatals of the States;
• promote, monitor and enforce compliance with the principles of proportional sharing of all bureaucratic, economic, media and political posts at all levels of government;
• take such legal measures, including the prosecution  of  the  head  or  staff  of any Ministry or government body or agency which fails to comply with any federal character principle or formula prescribed or adopted by the Commission; and
• to carry out such other functions as may be conferred upon it by an Act of the National

The principle of constitutional supremacy ensures that these special provisions cannot be tampered with so easily. Thus, the procedure for amending certain provisions of the CFRN is rigorous and laborious. For example, under S. 9(3), an Act of the National Assembly for the purpose of altering constitutional provisions, States creation and Chapter IV of the  CFRN cannot ordinarily be passed; it must be approved by not less than 4/5 majority of  the  members of each House of the National Assembly and the resolution of Houses of Assembly of not less than 2/3 (majority) of all the states of the federation. See the following cases:

Adamolekun v. Council of the University of Ibada[1968] N.M.L.R. 25; [1967] 1 All N.L.R. 213 and John Kolade v. A.G. Lagos State [1982] 2 N.C.L.R. 771

From the perspective of administrative law, the significance of  this  constitutional concept can be seen from the fact that its enforcement guarantees the maintenance of the  rule  of  law.  Notice that where there is rule of law or constitutional supremacy, the excesses  of administrative agencies can be curbed. You will recall  that  one  of  the  strong  criticisms against administrative agencies is that, in exercising all the functions of all the three arms of government – they tend to wield wide, wild, if not absolute powers. However, because of the intervention of constitutional supremacy, every authority or agency is mandated to  act  strictly in accordance with the law. This translates to promoting the interests and rights of citizens.

SELF ASSESSMENT EXERCISE 2

1. How meaningful is constitutional supremacy to Nigeria?
2. Nigeria needs good leaders more than it needs constitutional Discuss.

 CONCLUSION

Constitutional supremacy is the opposite  of  parliamentary  supremacy  –  the  subject  that forms the focus of the next Unit. Deriving from the  doctrine of  rule  of  law,  it presupposes  that every conduct by the arms of government (including governmental agencies) and citizens must be justified or validated by the Constitution. The Constitution  is  the  grundnorm,  the basic norm from which all other norms in the normative order derives their validity.

The CFRN, particularly Chapter IV therein, has been the traditional litmus test of  the  supremacy or otherwise of the Constitution. In civilian democracies, the  Courts  have always had no difficulty proclaiming and reiterating the reality of  the  concept.  Undoubtedly, there have been decisions that we may not support. But, irrespective of our personal sentiments, the most important thing is that it  is  the  principle  that  is upheld or claimed to be upheld at the  end of the day. The importance of the concept cannot be overemphasized especially when we realize the sensitivity and the volatility of the Nigerian State as a result of its diversity in  politics, religion, culture, language, etc. more pointedly, the concept serves as a reference point for all and assists in silencing groups who, otherwise, would have applied their base sentiments in handling the affairs of the citizens and of the country.

 SUMMARY

In this Unit, we examined the constitution, constitutional supremacy, and some representative human rights, and the importance of constitutional supremacy in the complex political entity called Nigeria.

TUTOR-MARKED ASSIGNMENT

1. In what way has the CFRN demonstrated the constitutional supremacy in the Nigerian legal system?

 REFERENCES/FURTHER READING

• O Iluyomade & B.U. Eka, Cases and Materials on Administrative Law(Ibadan: Obafemi Awolowo University Press Limited, 1992).

• C.S. Wade & A.W. Bradley, Constitutional Law (London: Longman, 8thEdition, 1970).
• Ese Malemi, Administrative Law (Lagos: Princeton Publishing Company, 3rd Edition, 2008).

• Jadesola Akande, Introduction to the Nigerian Constitution (London: Sweet & Maxwell, 1982).