Constitution is the fons et origo ie origin of all other laws in the society. According to the Blacks law dictionary, a Constitution is defined as the fundamental and organic law of a nation or a state that establishes the concept, character and organization of its government, as well as describing the extent of its sovereignty and the manner of its exercise.
Also, a constitution means a document having a special legal sanctity which sets out the framework and the principal functions of the organs of government within the state, and declares the principles by which those organs must operate.
Scope of Constitutional Law
According to one very wide definition, constitutional law is that part of the Law which relates to the system of government of the country or it can also be defined as meaning those laws which regulate the structure of the principal organs of government and their relationship to each other and to the citizen, and determine their main function.
The Constitution can be classified into the following:
- Written and unwritten constitution
- Rigid and flexible constitution
A Constitution is referred to as written according to Hood Phillips, when the most important constitutional Laws are specifically enacted. By this, a specific legislative enactment on the organization of a state and administration of justice, as well as other national constitutional issues are provided for. This usually produces a single document with a limited number of sections which may be amended from time to time to suit the prevailing circumstances.
Where there is a written constitution, such document is taken to be an organic instrument which claims superiority over and above any other document in the state. The constitution thus formed establishes a framework and principles of government in broad and general terms with a view to applying to varying conditions in the several communities in the state.
The clearest characteristic of all written constitutions is that it is possible to point to one document or a combination of documents, as the Constitution. A good example of a combination of documents is the experience of Nigeria when there were four Regions in the country and each Region had its own constitution while there was another for the Federation. Written constitutions are now widespread in the world. Such constitutions invariably spell out the three arms of government namely, the Legislative, the Executive and the Judiciary.
The most fundamental attribute of written constitution is that it cannot be changed, amended or repeated like an ordinary enactment. Thus it may have the characteristic of rigidity. Examples of countries with rigid constitution are: Nigeria, USA, South Africa, e.t.c.
Great Britain remains the most often referred to nation with an unwritten constitution. In Britain, it is difficult to point at a single document as the constitution of the country as is usually the case for countries with written constitutions like Nigeria. This does not mean that the British people are not guided by political philosophies which exist under a constitution. They are only obtained in various documents.
Thus, the Laws of the unwritten British Constitution comprise of three kinds of rules; statute, common law and custom. In view of contemporary development, it is necessary to include international conventions. Treaties are not themselves part of the British Laws except they are so transformed.
It is necessary to also refer to delegated legislation as well as judicial discussions, custom and literary authority when discussing the unwritten constitution of Great Britain. In the case of delegated legislation, it must be pointed out that these are pieces of legislation derived from the exercise of powers endowed upon Ministers and other arms of State. They come in the form of orders, regulations or bye-laws. The power is also conferred on the Queen-in-Council to legislate on matters of emergency or when it is necessary to give effect to enabling Acts.
As judicial decisions also developed into Constitutional Law in England, in Watson V. Walter (1868) L.R. 4 Q.B 73, the principle of qualified privilege was extended to unauthorized reports of parliamentary debates. In Ridge V. Baldwin (1964) A.C 40 H.L, the famous principle of audi alteram partem was reaffirmed.
For custom to be accepted as part of the Constitutional Law in England, it need not have been adjudicated upon by the court, but it must be judicially recognized. To be recognized, it must be certain, reasonable, obligatory to the subjects, as well as possessing continuous existence coupled with immemorial antiquity. Literary authorities are sometimes relied upon as statements of Constitutional Law in England. The dependent factors are usually the reputation of the author and the date.
Flexible and Rigid Constitution
Bryce makes reference to distinction between flexible and rigid constitutions. This distinction has a strong bearing on the mode of amendment of the constitution. The opinion had been lobbied by Dicey that, a flexible constitution is that under which every description can legally be changed with the same ease and in the same manner and same body.
This approach is supported by Hood Phillips who adds that the flexibility of the British Constitution is a corollary to the fact that no written constitution or higher law is binding on the Parliament. It is not only written constitutions that possess the flexible quality. To emphasize this point, Bryce cites the example of Singapore whose constitution is written but is entirely flexible and the constitutions of the Australian States which are written and largely flexible. A look at the Nigerian Constitution will show that the Constitution is written and flexible. This is because the Constitution provides for modes of altering it, though streamlined and intricate as contained in section 9 of the 1999 constitution.
Whether a written constitution is flexible or rigid depends on how easy or otherwise it is to amend. It is however a common saying that the main fundamental attribute of a written constitution is rigidity, that is, it cannot be changed, amended or repealed like an ordinary enactment. This view tends to ignore the fact that there could be a written but flexible constitution which allows for easy amendment as the need may arise like a constitution for a colonized community; for example, the Nigerian Constitutions of 1922, 1946 and 1951. They could all not only be amended at will by the colonial power, but also abrogated just like the Military did to the 1963 Republican constitution in January 1966 and the 1979 Constitution in January 1984. Dicey has said that a rigid constitution is “one under which certain laws generally known as Constitutional or fundamental laws cannot be changed in the same manner as ordinary laws”. The Nigerian Constitution cited above partially belies Dicey’s definitions of Rigid and Flexible Constitution.
A more complete reaction to Dicey’s view in this matter is provided by Hood Phillips when he said inter alia that: “A more significant classification of the types of constitution is that into ‘flexible’ and ‘rigid’ metaphors given currency by Bryce…Unwritten Constitutions are in practice flexible, but written constitutions are not necessarily rigid.…”
It is perhaps better to describe each constitution according to its wording rather than give a broad classification of written and unwritten to determine the rigidity or flexibility of a constitution.
Federal System Of Government
A federal system if government exists where there are federating units of states with a federal capital. Nigeria is an example of state with a federal character. Each of the federating state or unit is autonomous and exists independently. Section 1(1) of the 1999 constitution of Nigeria proclaimed Nigeria to be a federation, consisting of 36 states with a federal capital territory.
CHARACTERISTICS OF A FEDERAL SYSTEM OF GOVERNMENT
- SUPREMACY OF THE CONSTITUTION:
This is one of the striking features of a state that operates a federal system of government. It is the constitution that spells out the extent and limits of power exercisable by the central (Federal) government and its component parts (States). This is to minimize frictions. As Osipitan suggested, one of the fundamental features of a federal arrangement is the need for a supreme constitution which binds all persons, governments and authority. A supreme constitution has the added advantage of highlighting the existence of a binding arrangement which exists among the states within the federation.
According to Section 1(1) of the 1999 Constitution of Nigeria, the “… Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”.
A similar provision is contained in the Constitution of the United States of America. Article VI, Section 2 provides that “This constitution and the laws of the United States of America which shall be made in pursuance thereof… shall be supreme law of the land and the judges in every State shall be bound thereby anything in the Constitution or laws of any State to the contrary notwithstanding.”
This supremacy means that the laws passed by any authority in violation of the constitution may be declared null and void.
In Kalu V Odili (1992) 5 NWLR PT 240 p. 130 at 188, Karibi-Whyte JSC stated inter alia: “It is both a fundamental and elementary principle of our law that the constitution is the basic law of the land. It is supreme law and its provisions have binding force on all authorities, institutions and persons throughout the country.”
- DIVISION OF POWERS:
The federal process is conditioned by a distinctive division of powers between the central (Federal) and other levels of government (State and Local). Powers are shared among the constituent parts to substantially reflect institutional and functional interactions, cooperation and coordination. The 1999 constitution clearly demarcates these functions.
Section 4(1) vests legislative powers of the Federal Republic of Nigeria in the National Assembly. The areas in which the National Assembly may make laws have been enumerated in the Exclusive Legislative list contained in the second schedule of part 1 of the Constitution. It contains 68 items. The areas covered include accounts of the Federation, defence, arms and ammunition, aviation, copyright, etc. The areas in which the National Assembly and State Houses of Assembly have concurrent powers to make laws are contained in the second schedule of part II. It contains 30 items. The House of Assembly of a State has power to legislate on any matter not included in the Exclusive Legislative list. Such matters are deemed to be residual. See section 4(7)(a) of the constitution.
It is also noteworthy that the executive body at the federal level is headed by the President and Commander in Chief of the Armed Forces. He is to be assisted by the Vice-President and Ministers of the Government of the Federation. At the state level, the Governor is the Chief Executive and he is assisted by the Deputy Governor, Commissioners and Advisers.
The Local Governments are also established under Section 7 of the 1999 Constitution. Their functions are enumerated in the fourth schedule to the Constitution. The Local Government Council is headed by a Chairman as the head of the executive branch while the councilors compose the legislative arm.
Judicial powers are vested in the courts established for the Federation. At the apex is the Supreme Court. Other courts at the Federal level are the Court of Appeal, the Federal High Court; High Court of the Federal Capital Territory and such other courts as may be authorized by Act of the National Assembly. The state judiciary consists of the High Court of a State, Magistrate Court, Customary Court and such other Courts as may be authorized by law of the House of Assembly of a State.
The Constitution also makes provisions for the establishment of federal agencies or bodies like the Code of Conduct Bureau, the Federal Civil Service Commission, the Federal Character Commission, the Federal Judicial Service Commission, etc. See Section 197 of the Constitution.
It would therefore be seen that in any federal arrangement, there must be a well laid down division of powers. It must be stated that if a state makes a law over an item on the concurrent legislative list which is inconsistent with a Federal law on the same item, the state law shall be void by virtue of the express provision of the Constitution. But where such state’s law is consistent with the Federal law but the latter has covered the field, the state law will be void under the doctrine of “covering the field”.
- RIGID CONSTITUTION:
Another institutionalized device in a federal arrangement is the existence of a rigid form of amending the constitution. This is to preserve the corporate existence of the country and check secession bid by any of the states making up the federation. In line with section 9 (2) of the 1999 Constitution, an Act of the National Assembly for the alteration of the Constitution other than creation of states, shall not be passed in either House of the National Assembly unless:
- The proposal is supported by the votes of not less than two-thirds majority of all the members of that House; and
- Approved by resolution of the Houses of Assembly of not less than two-thirds of all the states.
Also, section 9(3) provides that sections 8 and 9 and chapter IV of the Constitution can only be amended if:
- The proposal is supported by the votes of not less than four-fifth majority of the National Assembly; and
- Approved by resolution of two thirds of states Houses of Assembly in the country.
In the United States, an amendment to the Constitution as stated in Article IV Section 3(1) of the U.S. Constitution, can be made by a two thirds vote in each House of Congress or by a convention called by congress upon the application of the legislatures of two-thirds of the states. The amendments proposed by either body must be ratified by the legislatures of three-quarters of the states.
UNITARY SYSTEM OF GOVERNMENT
A Unitary government is a government where all powers are concentrated in a single central government, which does not share power with any other body in the country, but delegates powers to regional and local governments and other subordinate bodies. All government powers are concentrated in the central or national government as the only source of authority from which power emanates. A country operating a unitary system of government usually adopts a unitary constitution. The constitution though supreme, is usually flexible and not rigid, as the government has power to amend as may be necessary.
There is no constitutional sharing and division of powers between the central government and the regional governments or local authorities. Usually there is no constitutional conflict between the central government and its subordinate regional or local district authorities, which are created for administrative purposes and are an extension of the national government. The national government can alter the powers and boundaries of the various constituent parts of the country and there may be no need for separate parliaments in the constituent parts of the country.
The central parliament often has parliamentary supremacy to make laws for the country. A unitary system usually has a strong and powerful central government. The people usually owe allegiance to only one government, that is, the central government. Examples of countries operating a unitary system of government are the United Kingdom, France, Belgium, Italy, Gambia, Liberia, Cameroon, Ethiopia, etc.
PRESIDENTIAL SYSTEM OF GOVERNMENT
A presidential system of government is a government where all executive powers are vested in a president who is the head of state and head of government. The president may exercise the executive powers of government either directly by himself or through the vice-president, ministers or other officers in the public service of the federation. See section 5(1) of the 1999 Constitution. The powers of the president is to maintain the constitution and to apply all the laws made by the legislature for the time being in force and to implement party programmes and generally uphold the interest of the nation and the welfare of the people at all times.
The President is elected directly by the people or indirectly through an electoral college. The President and the cabinet of ministers appointed by him are not members of the legislature. The President is free to choose his ministers from within and outside his party subject to confirmation by the Legislature. The President is a member of the ruling party. The party advises and supports him and he implements the programmes of the party. The ministers are first responsible to the president who appointed them and he is primarily responsible to discipline the ministers or otherwise call them to order. The legislature and the executive may be controlled by different political parties.
The president is responsible to the legislature which may investigate and impeach him for gross misconduct and he is also responsible to the people who are the sovereign power in a country and who may not renew his mandate at election. The United States of America, Nigeria, Ghana, Kenya and South Africa are examples of countries operating a presidential system of government.
There are many checks and balances under the presidential system of government. While the legislature may refuse to vote for taxes, thus checking a difficult Executive, the Executive (President) in turn may veto a bill which has been passed by an uncompromising legislature. But if the bill is passed the second time by two thirds majority, it becomes law. If however the Bill/Law is challenged on questions of illegality/constitutionality in court, the judiciary may declare it unconstitutional, thus acting as a check though the judges are appointed by the Executive. One can then say that the presidential model of government is in essence a government of separation of powers coupled with checks and balances.
PARLIAMENTARY SYSTEM OF GOVERNMENT
Parliamentary or cabinet system of government is a government system where all the executive powers of government are vested in a Prime Minister who is the head of government and head of the majority party or ruling party, but is not the head of state. In this system of government, the head of state who exercises only ceremonial functions may be a monarch or president who is the figure head.
The prime minister and the entire ministers in his cabinet are all members of the same party or coalition of parties. In a cabinet system of government, there is no complete separation of powers, nor a complete fusion of powers. Though the executive and the legislature are completely fused, there is no over-lapping of powers because the same people constitute both arms. Apart from the minister of justice, the judiciary is completely separate from the legislature and the executive.
Apart from the doctrine of collective ministerial responsibility and the doctrine of individual ministerial responsibility to parliament, the prime minister as head of the government or executive arm has the power to dismiss any minister and he is primarily responsible for the discipline of his cabinet. The stability of the government depends a lot on the ruling party controlling a reasonable majority in the parliament or being able to form a coalition government with another party or parties. There is an official opposition party in the parliament, which is usually the party having the highest number of votes next to the ruling party in the parliament. The members of the parliament and the executive arm are one. The prime minister is subject to his party and is controlled by the party. He remains in office a long as his party has the majority of members in the parliament. However when a vote of “no confidence” is passed on him and his cabinet by parliament, the Prime Minister and his entire cabinet is obliged to resign.
The United Kingdom is the origin and home of this system of government. Other countries operating a parliamentary system of government include: Canada, Jamaica, Israel, India, Australia, Lesotho, Ethiopia, etc. Before independence and between 1960 to 1966, Nigeria operated a parliamentary system of government.
From the colonial era till date, Nigeria as a nation did not exist until the amalgamation of the Southern and Northern protectorate on Jan 1, 1914 by Lord Luggard. Ever before the 1914 amalgamation, what existed in Nigeria was emirates/empires which has at various period in time been about intertribal war among themselves. However, Nigeria experienced the first constitutional development under Clifford Constitution of 1922. This Constitution put in place for the first time, a legislative council which can only make laws for the Southern Nigeria. The legislative council comprised of 26 official members and 4 elected members. The Clifford Constitution was subsequently replaced by Richards Constitution of 1946.
The 1946 Richards Constitution introduced for the first time, regional House of Assembly. Under this Constitution, Nigeria was divided into the Northern, Western and Eastern region, each with it’s own regional Houses of Assembly. Each of the regions were autonomous and independent of each other. The Richards Constitution was later on replaced by MacPherson Constitution of 1951 before Lyttleton of 1954.
Under the Lyttleton constitution, we had a loose federation. Here, the existing 3 regions (Western, Eastern and Northern) and Southern Cameroon were afforded a sovereign status.
The 1954 Lyttleton constitution was in operation until 1st October 1960 when we had the Independence constitution of 1960. Section 1 of the 1960 constitution provided that; “the provision of this Constitution shall have a binding effect on all person’s and subject to the provision of section 4 of the same constitution. Any constitution of the regions by it’s provisions or any other law which is inconsistent with the provision of this constitution shall be declared null and void to the extent of its inconsistency”.
One fundamental provision of the 1960 Constitution is that for the first time, it provides for fundamental human right. Under the 1960 constitution, Nigeria practiced a parliamentary system of government, which was equally adopted under the 1963 Republican constitution.
Under the 1963 Republican constitution, Nigeria operated a parliamentary system of government which was handed by Prime Minister Alh. Tafawa Balewa. The 1963 Republican constitution was in operation till 15th Jan 1966 when the military took over.
With the coming of the military in 1966, the republican constitution of 1963 was suspended and modified. The unsuspended 1963 republican constitution were made subject to a decree of the military government.
However, the unsuspended 1963 constitutional provision is subject to military decree. The military were in power from 15th Jan 1966- Oct 1st 1979 where we had the 1979 presidential constitution. The 1979 constitution provided in section 1(1) the supremacy of the constitution over and above any other law. The 1979 constitution provided for fundamental human right in section 30(10) of the 1979 constitution. This 1979 presidential constitution lasted till 31st December 1983 when the military took over from Alh. Shehu Shagari. The military took over in Dec 1983 and suspended and modified the 1979 constitution.
The military were in power till 29th of May 1999 where we had another attempt at constitutional development. On the 29th of May, 1999, the present constitution was promulgated. The 1999 Constitution is a replica of the 1979 constitution.
Nigeria as a nation had the 1st Military experience on 15th of January 1966 when the then civilian parliamentary Government of Alh. Tafawa Balewa was overthrown by Major General JTU Agunyi Ironsi. The Ironsi military administration was in power from Jan 15th 1966- July 29 1966. When Yakubu Gowon then, came to power following a counter-coup that overthrew Agunyi Ironsi. The General Yakubu Gowon military administration was in power till July 29, 1975 following a coup announced by Major Gen. Joseph Garba which brought in Gen. Murtala Muhammad as the military Head of State. The Murtala administration was in power till Jan 13, 1976 when Gen. Murtala was assassinated in an aborted military coup. The assassination of Murtala Muhammad on 13th Feb 1976 brought in Gen. Olusegun Obasanjo as a military president. The Obasanjo administration was in power from 1976- Oct 1st 1979 when he handed over to a civilian government, headed by Alhaji. Shehu Shagari. The Shagari administration was in power from October 1st 1979-December 31st 1983 when the civilian government was toppled by Gen. Muhammad Buhari. The Buhari military administration was in power from 31st December 1983- August 27 1985 where another military government came to power. That military government was headed by Gen. Babangida. The Babangida administration was in power from August 27- November 17, 1993 where the Babangida administration purported to have organised election to usher in administration which resulted to the annulment of June 12, 1993. The annulment of the election resulted in interim national government headed by Ernest Shonekan. This interim government was overthrown by a military government late Gen. Sanni Abacha. The Abacha administration was in power from November 17, 1993- July 8, 1998 when Gen. Sanni Abacha died in office. The death of late Gen. Sanni Abacha on July 8, 1998 brought in Gen. Abubakar Abdusalam as the Military Head of State. The administration of Gen. Abdusalam Abubakar began from July 8 1998 and ended May 29,1999 when he handed over to a civilian government of Chief Olusegun Obasanjo.
Been that as it may, the last military government that we had was that headed by Gen. Abdusalam Abubakar which terminated on May 29, 1999.
STRUCTURES UNDER MILITARY RULE
Under va military dispensation, both the legislative and the executive power is vested in the Supreme Military Council or Armed Forces Ruling Council or National Defence and Security Council or the Provisional Ruling Council.
It is worthy to note that the military government that toppled the administration of Alhaji Tafawa Balewa came in with Decree 1 of 1966 called “modification and suspension” that suspended and modified the existing 1963 constitution. Similarly, Decrees were made by the military that toppled the Alh. Shehu Shagari administration which is Decree 1, 1984 (modification and suspension). This Decree modified and suspended the 1979 constitution. Note also that the unsuspended and unmodified constitutional provision is subject to a military decree.
The superiority of a military decree over and above unsuspended or unmodified constitutional provision was first tested in the case of Lakanmi & Ors v. A.G of Western State & ors (1971) 1 UILR pg. 201 where the tribunal of enquiry into the asset of public officers of Western State was set up under the public officers and other persons (investigation of asset). Edict 5 of 1967 made an order vesting the properties and account of the Plaintiff in the state government until the governor of the state shall direct otherwise. The Plaintiff challenged the validity of the Edict in the High Court. The High court held that the order vesting his property and account in the governor of the state was not ultra-vires and the Edict was validly made.
On further appeal, the supreme Court held in favor of the appellant wherein the decision of the trial Court was overruled and set aside by the Federal Military government by the promulgation of the Federal Military government (supremacy and enforcement of power) Decree 28 of 1970 which ousted the jurisdiction of the Court from enquiring into the validity of any Decree or Edict. By the promulgation of Decree 28 of 1970, it was made clear that a military decree are the supreme laws of the land and that the validity of either a military decree or an Edict of a state cannot be challenged in court except it clashes with Decree. The Supreme Court in a similar case of Military Governor of Ondo State v. Adewunmi (1994) 4NWLR part 336 at pg. 26 stated the hierarchy of laws under a military regime as follows: The Decree of the Federal Military government, the unsuspended constitutional provisions, the existing laws of the National Assembly, the Edicts of Military Governor of states and lastly the existing laws of the state.
Noteworthy is the fact that any provision of any state law or Edict of military governor of a state which is inconsistent with existing laws of the National Assembly or unsuspended and unmodified constitutional provision or the Decree of the Federal Military government is void to the extent of such inconsistency. However, the Decree of a military government at the center is superior to the unsuspended and unmodified constitutional provisions.
The judiciary, executive and legislature under a military dispensation ran from 15th Jan 1966- May 29, 1999 seized to be in a single body as supreme military council or provisional ruling council as the case may be. The only body that enjoys a little bit of autonomy which is not total is the judiciary.
Under a military dispensation, the executive and legislative power is being exercised by the Supreme Military Council which is headed by the Head of State. This same body acted as the legislature and executive.
Conclusively, under a military dispensation, There is no separation of power.
Specifically, Section 4,5,6 of the 1999 constitution makes provision for legislative, executive and judicial arms of government which provides for the executive in section 5, legislature in section 4 and judiciary in section 6.
Section 4 of the Constitution provides the legislative power of the Federal government shall be exercised by the National Assembly comprising of the Senate/ House of Representatives (National Assembly). They shall make laws for peace and good governance of Nigeria. The legislative power of the state is vested in House of Assembly of each state.
Section 5 of the Constitution vests executive power in the President who can exercise power directly or indirectly through his Vice president, Ministers or public officers of the Federation while at the state level, the executive power is vested in the governor of the state who can do this directly by himself or indirectly through his commissioners or public servant of the state.
Section 6 of the same constitution vests judicial power in the judiciary. Also, section 6(6) states which court are court of records and the they include the supreme Court, Court of Appeal, Federal High court, Customary Court of Appeal, Sharia Court of Appeal, State High Court and High Court of the FCT. Note that, magistrate courts and Area courts are not court of records though they exercise judicial powers as the case may be.
The word “delegated” is the past tense of the verb “to delegate”. It is the process of selecting, appointing or electing somebody to carry out a function on behalf of another. It is also the act of giving out a portion of one’s power or authority or work to a subordinate.
The word “legislation” on the other hand, is the process of making or enacting a positive law in a written form. It is a law or a statute made or enacted by a recognized legislative authority.
Under the English common law, the parliament or the legislature is the only recognized authority to make laws for a country/state or society. In those country operating written Constitution like Canada, Australia, Uganda, Ghana, Sudan, Nigeria, etc, in Nigeria for instance, Section 4(1) of the Constitution of FRN provides that; “legislative of the FRN shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives”.
In the same vein, Section 4(6) of the same constitution provided that the legislative powers of the state of a Federation shall be vested in the House of Assembly of a state. Also, the legislative powers of a local government area by virtue of Section 7 of the same constitution is vested in the local government legislative council.
However, the parliament/legislature must as a necessity, delegate it’s legislative powers to other subordinate or authority of the state so as to fill the gaps left by various Acts of parliament. Therefore, laws made by executive authorities or other subordinate of government aside those of the parliament or legislature are referred to as delegated legislation. The term “delegated legislation” itself is also called “the law making power of the administration”.
Delegated legislation often occurs by various names such as rules, regulations, schemes, by-laws, policies, etc.
Meanwhile, over the years, the process of delegated legislation has been criticized in the following ways;
- That it negates the principle of separation of power because the executive/ administrative authorities who make by-laws/ regulations are expected not to make laws but to execute the affairs of government.
- It has also been criticized because executive bodies or authorities who are in place to make laws often abuse their powers. This has happened overtime in cases of Liversidge v. Anderson (1942) AC 430, Agbaje v. COP (1969) 1 NMLR 176
- Delegated legislation has also been criticized because it encourages law to be made by persons who are not accredited representative of the people.
Notwithstanding the criticisms, the process of delegated legislation has come to stay since 1932 in Great Britain and other common law countries. In the process of preventing abuse of powers by administrative authorities who engage in the process of delegated legislation, the following devices to control delegated legislation have been put in place:
CONTROL OF DELEGATED LEGISLATION
The process of delegated legislation is controlled in the following manner:
- Legislative Control:
- Full scale debate on an enabling law/ Act: This is the process by which every enabling Acts decides to give administrative authorities powers to make by-laws and cleverly screened by the legislator so as to remove areas under which executive authorities can hide to misuse their powers.
- Laying Before The Parliament: This is a device by which every bylaw or rules to be made by an executive or administrative authority is placed before the legislature or parliament so as to ensure that all provisions in any bylaw or rules under which the executive can hide to misuse their power are removed outrightly.
- Executive Control:
Here, the executive is aware that they were voted into office by the electorate and so care must be taken by them not to make any policy or by-laws oppressive to the welfare and right of the citizens.
- Judicial Control:
The judiciary exercises it’s power in controlling delegated legislation in the following ways;
- Constitutional Grants: By this process, every bylaws, policy or rules made by an executive authority which appears to be inconsistent with the provision of the Constitution shall be declared null and void by the judiciary.
- Doctrine of ultra-vires: The phrase “ultra-vires means “beyond one’s power or authority.” Therefore, where an executive authority has the power to make a delegated legislation but makes it beyond his/her own power, the court will nullify that delegated legislation on the ground that it is ultra-vires the executive authority. Also, where an executive authority has the power to make a delegated legislation but in the process of making such legislation, proper procedure were not followed, the court will nullify that delegated legislation on the ground that it is procedurally ultra-vires. This was the position of the Court at various point in times in Doherty v. Balewa (1961) 1 NLR 206, Williams v. Majekodunmi (1962) 1 ANLR 413
NECESSITIES FOR DELEGATED LEGISLATION
- Pressure on the time of the legislature:
Nowadays, Parliaments and legislative bodies get themselves involved in so many matters of the state to the extent that time does not always be on their side. Although, section 63 of the Constitution empowers the legislature to meet for a period 181 days/ year, experience has shown that this period is not always enough. Therefore, the legislature must of necessity delegate it’s legislative powers to other executive authorities.
- Technicality of the subject matter:
In the present century, the parliament, legislature is always involved in various technical matters of the state like technology, medicine, science, law, ICT, etc. These technical subject matters are not always within the professional competence of the Parliament. Hence, powers are given to executive bodies who have enough skills to make by-laws.
- Flexibility of The Subject Matter:
Since the beginning of the 19th, 20th and 21st centuries, legislative authorities have always being involved in matters of the state that are always flexible, dynamic and experimental and so it becomes necessary to give executive authorities legislative powers to make by-laws on them instead of the parliament or legislature to be frequently amending their Acts. Other flexible issues of the state are the environment, whether forecasting, town planning, road traffic, population, etc.
During the period of emergency like wars, labour strikes, student unrest, environmental disasters, economic unrest, legislative powers are often given to the executive authorities of the state to make by-laws/ regulations, so as to cope with the period of emergency instead of waiting for the parliament to reconvene to pass laws to cope with such emergencies.
Remedies are acts of enforcing a right or redressing a wrong. It is anything which a court of law can do for a litigant who has been wronged or being wronged or about to be wronged.
A writ on the other hand is a written order of a competent court of law or any judicial tribunal of law directed to a person to do or refrain from doing a thing. In view of the fact that writs and remedies are often issued by courts or judicial tribunals through discretionary powers, that is why they are called prerogative writs or orders. When a litigant complains that his right has been trampled upon or about to be trampled upon, he has a lot of remedies to ask from a competent court of law.
Remedies in constitutional/ administrative law are often grouped into two:
- General Remedies:
When a person alleges that he has been wronged, about to be wronged or being wronged, he may approach a court of law for an order declaring that something wrong has been done against him/ her. Here, if the person does not want that wrong to continue to be perpetuated against him, he may proceed to ask the court to give an order of injunction which may be interim injunction or perpetual injunction. If as a result of the wrong complained of, the complainant or plaintiff has suffered an injury, he can also proceed to ask the court to give an order of damages. Examples of damages are minor damage, punity damage, aggravative damage.
- Specific Remedies:
- Habeas Corpus:
The phrase is a Latin word meaning, “bring me the body, whether dead or alive”. The writ of Habeas Corpus is a prerogative order for securing the release of a person who has been detained in any custody whether police custody, military custody , etc. The purpose of the order if “Habeas Corpus” is to determine the legal justification for which a person has been detained or held incommunicado. By the writ of Habeas Corpus, the judge of the High Court on behalf of the detained or representative of the detainee is inquiring into circumstances leading to the detention of that person. If there be no legal justification for the detention of that person, he is ordered to be released instantly.
Once a order of Habeas Corpus has been granted to the applicant, the detainee must be produced. Refusal by any detaining authority or government to obey the order of Habeas Corpus is tantamount to a contempt of court for which the detaining authority can be made to pay a heavy damages or be sent to imprisonment. This was the position of the law in re-Muhammad Olayori & ors (1961) 1 ANLR 445
2. Certiorari and Prohibition:
The writs of certiorari and Prohibition have established themselves as the most effective and important remedies in administrative and constitutional law. Even though, they differ in their areas of function, the conditions for their availability to applicants are usually the same in law. The basis for the application of writ of certiorari and Prohibition have been geographically captured by Lord Atkin in the case of R v. Electricity Commissioners (1924) 1KB 171. According to Lord Atkin in that case, “whenever anybody or person, having legal authority to determine questions relating to the rights of a subject and having the duty to act judicially-act in excess of their legal authority, they are subject to the controlling jurisdictions of these writs”.
Therefore, certiorari is a prerogative writs which enables a superior court/ tribunal to call upon an inferior court/ tribunal or administrative authority to display the record of its conclusion in any case relating to the right of a person with a view to determining the legality of that conclusion.
Prohibition on the other hand will always be available to an applicant to prevent the performance or continuance of an administrative action which must be Judicial or quasi-judicial in nature. In the application of the writ of certiorari and Prohibition, an administrative authority must act judicially in the following ways:
- In determining any matter relating to the source of livelihood of a person, it must act judicially.
- In determining any contentious matter between two or more persons, the administrative authority must act judicially by giving the parties enough time, notice, place of meeting and the opportunity to be defended by a lawyer. Where the administrative authority has not complied with the above, any decision reached will be rendered null and void as seen in R v. Electricity Commissioners and Board of Education v. Rice (1911) AC 191.
- Writ of Mandamus:
The writ of Mandamus is a prerogative order to secure the performance of a public duty imposed on a person by law. According to Lord Mansfield, Mandamus is often introduced to prevent disorder for failure of Justice and defect of police and in other circumstances where justice and good government are necessary and where the law has not provided specific remedies. In order to allow a court of law to issue an order of Mandamus, the following conditions must be met by the applicant.
- The applicant must convince the court that he has been asking for performance of the public order in which he/ she has a vested interest but that he/ she has been refused by the Defendant. See Banjo v. Abeokuta Urban District Council (1965) 1ANLR.
- The public duty need not be a statutory public duty, it may be a Customary public duty. See R v. Taiwo Are Oye Lagunju (1969) 4FSC 153
- The public duty must be mandatory, not discretionary. See R v. Commissioner of Lagos affairs (1961) LLR 123.
The provision of Chapter 2 of the 1999 constitution from Sections 14-18 contains fundamental objectives and directive principle of state policy. The fundamental objectives and directive principle of state policy was brought into the Nigerian Constitution by the 1979 constitution and was subsequently contained in the 1999 constitution as amended.
The fundamental objectives and directive principle of state policy was defined for the first time by the 1979 constitution drafting committee as follows; “By fundamental objectives, we refer to the identification of the ultimate objectives of the nation while the directive principle of state policy indicates the path which leads to those objectives”.
Fundamental objectives are ideals towards which the nation is expected to follow while the directive principle lay down the policies which are expected to be pursued in the effect of the nation to realize the national ideals. Fundamental state policy is therefore an important aspect by which all arms of government should be held accountable. It also defines the social contract between the public and the official vesting right as confined obligation of the contracting parties.
Specifically, Section 13(1) of the Constitution provides; “it shall be the duty and responsibility of all organs of government and of all authorities and persons exercising legislative, executive or judicial power to conform to, to observe and apply the provision of Chapter 2 of the Constitution, dealing with fundamental objectives and directive principle of state policy.”
Section 15 makes provision for Political objectives, section 16 for economic objectives, 17 social objectives while 18 provides for educational objectives, 19 is foreign policy objectives while Section 20 is for environmental objectives and 21 is for directives on Nigeria culture.
Note however, notwithstanding the provision of section 13(1) which makes it obligatory and mandatory for the legislative, executive and judicial organs of government to conform to the provisions of Chapter 2, section 6(6)(c) makes the provision of Chapter 2 not justiciable when the organs of government fails to comply. In other words, the non-conformity the government to section 15-21 cannot be a subject of litigation.
However, notwithstanding the provision of section 6(6c), Chapter 2 may be enforced under the African Charter of Human and Peoples’ Right which Nigeria is a signatory to.
The African Charter contains similar provisions for economic, social and cultural rights which are similar to those provisions contained under Chapter 2 of the Constitution. Nigeria is a signatory to the African Charter and by virtue of ratification and enforcement in CAP A9, LFN 2004, the provisions of African Charter became part of Nigeria domestic legal system. Thus the supreme Court in the case of Abacha v. Fawehinmi (2001) 51 NWLR pg. 29 held that: “ the African Charter has become part of Nigerian domestic law and it is therefore enforceable in Nigerian courts”.
In summary, notwithstanding the non-justiciability of provision of Chapter 2 of the Constitution, similar provisions are contained in the African Charter which Nigeria is a signatory to and so can be enforced via the African Charter.
Judicial review is defined as a court power to review the actions of other branches or levels of government, especially the courts power to invalidate legislative and executive actions as being unconstitutional. It is also a court review of the actions of a lower court in its supervisory role or the actions of an administrative body.
The foundation of what is today regarded as the doctrine of judicial review was laid in the United States case of Mardbury v. Madison 5 US 1 RANCH 137 1803 where the Supreme Court institutionalized it’s powers of judicial review as derived from Article 6 of the US Constitution by striking down Section 10 of the Judiciary Act of 1789 which was in direct conflict with the Constitution. In the words of the Chief Justice, John Marshall, he said as follows: “It is emphatically the province and duty of the judicial department to say what the law is as well as the court duty to override any legislation passed by congress that was not in accordance with the provisions of the Constitution”.
In operation, the doctrine of Judicial review operates as an offshoot of the principles of checks and balances in which the judicial branch is called upon to safeguard public interest whenever it appears to clash with private whims and caprices. Even though the Mardbury decision was directed at a legislation, the doctrine of judicial review operates extensively covering the length and breadth of nearly all governmental actions. It is a doctrine that has largely shaped the constitutional framework in nearly all countries of the world (Nigeria inclusive).
In Nigeria, the doctrine is today and integral part of the constitutional set up of the country. According to Professor Ben Nwabueze, judicial review can be defined as “the powers of the court to declare a governmental action where contrary to the Constitution or any other law as null and void”. Essentially, the doctrine has been deployed to counter ultra-vires acts of public authorities and where necessary declare such null and void.
A major corollary of the doctrine is the principle of locus standi which is to the effect that a court of law will only entertain legal proceedings in a matter where the party instituting the case has convinced the court that he/she has suffered a direct injury by reason of the statute, executive action or administrative act in question. This was the position of the Court in Abraham Adesanya v. President of the FRN & Anor (1981) 5SC 112-114. For a long time, this position was considered as too restrictive as intended as to cut litigants off access to court simply because they could not prove the direct injury they have suffered. This rule was however later overturned pursuant to Supreme Court’s decision in Fawehinmi v. Akilu (1987) 4NWLR pt. 67, 797SC. In this case, the court held that going forward, any private individual could institute legal proceedings in any matter.
LIMITATIONS TO THE POWERS OF JUDICIAL REVIEW
The powers of judicial review is strictly limited both in length and breadth. Firstly, under a military rule, several military governments limited the operation of the doctrine via the introduction of what is referred to as “ouster clauses” that denied the court powers to review any action whether legislative or executive of the military regime. See for example Section 5 of Decree 1 1984 which provided as follows; “no question as to the validity of this or any Decree or Edict shall be entertained by any Court in Nigeria”. Notwithstanding the existence of ouster clauses, Nigerian courts were still able to apply the doctrine of judicial review in certain instance. See the case of Adamolekun v. Council University of Ibadan (1968) NMLR 253 where the Court invalidated the action of the university council.
Secondly, another limitation is that the court is not empowered to examine the merits, good, morality, maliciousness or popularity of the statutes or executive action in question. The Courts’ power is not an exercise in looking into how pious or altruistic the statute or the action is. The only business the court has is to examine if the statute, executive action or administrative acts carried out has been done in accordance with an enabling law or constitution. This point was given judicial flavour in Military Governor of Imo State v. Nwauwa (1997) 2NWLR pt 490 675, where the then military governor had removed the traditional ruler of Izombe town from office. The Igwe challenged the power of the governor to so act. The Court of Appeal agreed with the traditional ruler and invalidated the action of the governor. Consequent upon which the state filed a further appeal before the Supreme Court. In delivering judgement, the Supreme Court held that the appellate court had exceeded or gone beyond the scope of its powers of judicial review. The Apex court stressed the point that the appellate court had no powers to replace the military governor and take his place as to whether his actions were right or wrong. The court ended by saying that the only business the appellate court has was to determine the legality of the action in question. This decision has been applied with approval in Egharevba v. Eribo (2010) 9 WLR where the Supreme Court stated that the High Court does not have supervisory jurisdiction over an election petition.
Interestingly, notwithstanding the development that the doctrine had enjoyed under Nigerian law, it suffered a huge setback in the case of Fawehinmi v. Abacha, where the Supreme Court attempted to introduce a new understanding of the doctrine. Chief Gani Fawehinmi, a human right lawyer was arrested without warrant in the early hours of 30th, Jan. 1995 by security operatives from the Nigerian Police and the State security service. He was thereafter detained for about a week in the SSS facility before he was transferred to Federal prisons in Bauchi. On the basis of his detention, Chief Fawehinmi filed an application before the Federal High Court for the enforcement of his fundamental human right. In the course of determining whether his right to personal liberty had indeed been breached, the court was additionally faced with the responsibility of examining the exercise of powers by the IG of Police as it relates to Chief Fawehinmi’s detention. At the court of Appeal, the Court specifically considered the powers of the IG of Police pursuant to the Constitution and the powers of the SSS in accordance with the State Securities Detention of Persons Act (CAP 414 LFN 1990). At the end of proceedings, the Appeal Court held that the powers of the IGP were subject to judicial review and that the court could examine the basis of the exercise of his discretion. The matter later came up before the Supreme Court and in giving a final judgement, the Court not only disagreed with the appellate court, held that the appellate court had exceeded the scope of its powers of judicial review. Notwithstanding that, the court agreed that Chief Fawehinmi’s right to personal liberty had been violated. The court hinged it’s decision on the ground that the appellate court could not review the extent and scope of the exercise of discretion as the law has granted to the IGP.
In the fine lines of Achike Jsc (as he then was), he said as follows: “the authority conferred with the power to issue detention orders under the State Securities Detention of Persons Decree No 2 of 1984 is vested with expansive power which is both discretionary and subjective. There is no obligation on him to disclose the reasons in the way and manner he exercises his subjective discretion. Now, let me return to the case in hand, it is quite clear that the provisions under Section 1(1) of Decree 11 of 1994 gives the IGP a free and unfatal power to reach his conclusion relying on such data and information that he may seem fit in been satisfied that any particular person’s act is prejudicial to State security. No reasons are given by the detaining authority to anyone as to how a detainee is or constitute himself in acts detrimental to state security. Put terstly but frankly, it is manifest that the power vested in the detaining authority can be withheld arbitrarily and capriciously without any remedy or right to seek a review of the decisions of the detaining authority”. In other words, the court simply held that the powers of the IGP who is an extension of the executive branch of government cannot be subjected to judicial review.
By way of analyses, one way of looking at the Supreme Court’s decision in Military Governor of Imo State v. Nwauwa by reaffirming the rule that the courts are not permitted to look into the merits or otherwise of an action.
A second way of looking at it is to argue that the Appeal Court chose to exercise judicial activism by looking beyond the letters of the law and invoking the spirit of the law. This means that the Appeal Court must have reasoned that in all good conscience, it could not agree with the IGP’s action because it was unconscionable. Indeed, as at the time the matter happened, the 1979 constitution had been suspended. However, notwithstanding the suspension, Chief Gani Fawehinmi could argue that fundamental human rights are universal in nature and cannot be abrogated by any ouster clause promulgated by the military. Indeed, Chief Gani Fawehinmi made that point given that in filing his action, not only did he bring it under Nigerian law, he also pleaded the African Charter on Human and People’s Right which is an international human right document and which was operational in Nigerian courts, given that it has been domesticated since Nigeria was a signatory to the Charter.
Notwithstanding all these arguments, the Supreme Court still chose to take the rather conservative view that it could not exercise judicial review over the action in question. However, in critiquing this decision, certain questions needs to be asked:
- Is the Supreme Court a court of law or a court of Justice?
- What are the extent and bounds of the exercise of discretion?
- What is the eternal duty of the Court? Is it to safeguard governmental power or to protect the public good?
One can argue that perhaps the Apex court missed a golden opportunity to further deepen and develop the doctrine of judicial review. There is no doubt that with every power, goes discretion. However, there is also no doubt that with discretion goes questions of good and bad. So even if a court cannot examine if a law or statute is good or bad, it should be able to examine whether discretions so exercised has been done for good.
In conclusion, notwithstanding the Supreme Court’s position in Fawehinmi v. Abacha, there is no gainsaying the facts that as at today, the doctrine of judicial review remains a major pillar of Nigeria’s constitutional experience. The courts, pursuant to Section 6 of the Constitution of FRN can be called upon any time to determine the legality or otherwise of any statute or executive action. The only question that remains hanging is the grey area of determining whether such action is benevolent or malevolent and whether any of these two is relevant.