CONSTITUTIONAL LAW THE CONSTITUTION AND CONSTITUTIONAL LAW All

CONSTITUTIONAL LAW

THE CONSTITUTION AND CONSTITUTIONAL LAW

All over the world, various Associations, Clubs, People, States or Countries have a supreme law or body of rules, which regulate such unit of people, the internal structure of the country, the powers and functions of government, the rights and duties of the people, their collective aspirations, desire to remain one political entity, system of government, etc. For example, the Constitution of the Law Students Society, Constitution of the Medical Students Society; the 1999 Constitution of the Federal Republic of Nigeria; and so on.

Constitutional Law therefore, is the law which regulates the structure of government, its powers and functions, rights and duties of individuals, regulates the structure of a country, relationship of government and its people, the procedure the public affairs of the country are to be administered and the provision of remedies for the unconstitutional acts of government and its agencies. Constitutional Law is the law of the constitution; it regulates the operation, application, enforcement and interpretation of a constitution. It is the branch of public law of a country.

A Constitution is an instrument of government made by the people, establishing the structure of a country, regulates the powers and functions of government, spells out the rights and duties of the people and provides remedies for any unconstitutional act. It is the organic and fundamental law of a country or state which may be Written or Unwritten. It is also known as the SUPREME LAW of the land or the GRUNDNORM (A. G. Bendel State vs. A. G. Fed (1981) SC pg. 1 and its provisions have binding effect on ALL persons in that country. See S. 1 (1) of the 1999 Constitutional of the Federal Republic of Nigeria. Adesanya vs. President, Fed. Rep. of Nig. (1981) 1 All NLR pg. 358.

Accordingly, any legislation or statutory instrument that negates the provisions contained therein is null and void and of no effect. This is supported by S. 1 (3) of the 1999 Constitution. Also see S. 2 (1) on taking over the control of government through unconstitutional means. It represents the collective aspirations of the people, their desire to remain as one indivisible, indissoluble sovereign entity. See the preamble of the 1999 Constitution and S. 2 (1) of the 1999 Constitution. In Adesanya vs. The President of the FRN (supra), Fatai CJN (as he then was) remarked inter alia: “When interpreting the provisions of the constitution, the court should look at the constitution as a whole and construe its provisions in such a way as to justify the hopes and aspirations of makers towards good government, welfare of persons based on the principles of freedom, equality and justice. ”

The constitution has to be viewed as a whole because certain provisions are subject to certain sections, previously or thereafter stated or mentioned. E. g. S. 27 (1) CFRN cannot exist on its own; it is subject to S. 28. Furthermore, the Constitution operates to apply the Doctrine of Covering the Field; this is a situation where the constitution has covered the field vis-à-vis a federal or state legislation. Such a legislation is not void simpliciter but will not be operative in view of the provisions of the constitution – S. 4 (5). Abia State & 35 Ors. Vs. Attorney General of the Federation (2002) 6 NWLR pt. 763 pg. 264 at 391.

“Where the provision of any act or statute is found to have already been made or provided for in the constitution, then the new provision will be regarded as invalid for duplication and/or inconsistency and therefore, inoperative. ” Take Notice that the Powers and Functions of government as well as the Rights and Duties (Obligations/Limits) of the people are usually defined and limited in the constitution. This is to enable proper running of the society in order to prevent arbitrariness, excessiveness and impunity. See Ss. 33 – 43 of the 1999 Constitution.

However, where the powers of government are not defined by the constitution, government may be hindered/prevented from discharging its constitutional and legislative duties. Take Notice that apart from nations/states, associations or group of persons also have constitutions which regulate their activities. For example, the Law Students Society. But strictly, Constitution within the context of this course is restricted to constitutions applicable to countries, nations or states. In spite of the ranking of the Constitution as the peak of legal ladder, it can still be amended by the National Assembly as the elected representative of the people. The overall authority is the people in whom lies the power to change, alter or modify the constitution.

Take Notice that there is no constitution that is perfect; not even an autochthonous or indigenous one like the 1999 Constitution of the Federal Republic of Nigeria. The drafters and makers of the constitution who are referred to as “Wise Men” are not omnipotent or vested with the ability to take care of all possible eventualities. See Okike vs. LPDC (2005) Vol. 21 WRN pg. 1. NATURE OF A CONSTITUTION: (i) It is an expression of the will or desires of the people; (ii) It is a social contract between the government and the people.

It therefore, follows that when a government or its agency does what it has no power to do, such act is ultra vires, unconstitutional, null and void and of no effect whatsoever which is liable to be set aside by a court at the instance of an aggrieved party. See Williams vs. Majekodunmi (1962) 1 All NLR 410; Garba & Ors. vs. University of Maiduguri (1986) 1 NWLR pt. 18 pg. 550 SC; Agbaje vs. Commissioner of Police (1969) 1 NMLR 176 CA; Banjo vs. Abeokuta Urban District Council (1965) All NLR 509; Merchants Bank Ltd. vs. Fed. Minister of Finance (1961) 1 All NLR 623. ATTRIBUTES OF A GOOD CONSTITUTION: (i) Stability of form and procedure;

(ii) Adaptability to the social or economic or technological or other changes in a country for its development and progress; (iii) Responsibility and accountability of Public Officers, government and public institutions in the country to the people; (iv) Representation of the people in government; (v) Openness in the conduct of the affairs of government; (vi) Separation of Powers in the government; etc.

ATTRIBUTES OF AN INDEPENDENT STATE/NATION/COUNTRY: 1. T - Territorial Boundary; 2. A - A Group of People (with common origin, language, culture, etc. ); 3. G - Geographical Location; 4. G - Government; 5. S - Sovereignty.

SOURCES OF A CONSTITUTION: 1. Past Experiences of the Country; 2. Customs and Way of Life of the People; 3. Statutes passed by Parliament; 4. Rules and Conventions; 5. British Magna Carta of 1215; 6. Constitutions of Other Countries; 7. American Bill of Rights;

8. Decrees and Edicts of Military Governments; 9. Deliberations of Constitutional Conferences or Constituent Assemblies; 10. Works of Eminent Writers, Jurists, Historians, Philosophers, Politicians, Statesmen, Essayists, etc. such as John Locke, A. V. Dicey, etc; 11. Case Laws or Judicial Precedents; 12. Rules of International Law; and so on. METHODS OF CONSTITUTION MAKING ARE: (i) By Enactment; i. e. being passed into force as a law;

(ii) By growing from the accepted customs, political practices, conventions, judicial decisions and statutes of the country over a long period of time. TYPES OF CONSTITUTION: 1. Written and Unwritten; 2. Rigid and Flexible; 3. Unitary and Federal; 4. Presidential and Parliamentary. 5. Monarchical, Oligarchy, Democratic and Republican.

(1. ) A Written Constitution is one that its laws are embodied or codified in a single document. MERITS OF WRITTEN CONSTITUTION 1. It is written down in single document and can be easily obtained and consulted on any issue required by any person or group. 2. It may also incorporate other documents or statutes in its provisions such as the Land Use Act, the NYSC Act, Code of Conduct Bureau Act, etc. 3. It is rigid. 4. Easy Reference.

5. Heterogeneous in nature (different people, different languages, etc). 6. Prevents the government from arbitrary rule. 7. It spells out the powers and functions of the arms of government. 8. Makes citizens understand their rights and duties because it is written. 9. Reduces frictions among the organs of government. Examples of countries that practices this are Nigeria, India, USA, Canada, etc. DEMERITS OF A WRITTEN CONSTITUTION 1. It is cumbersome in its mode of amendment due to its rigidity form;

2. It allows for the overlap of in the functions of the various organs of government thereby resulting in litigations which causes impediments to rapid democratic developments. (2. ) An Unwritten Constitution is one that its laws is not codified or embodied in a single document but is based chiefly on custom and precedent as expressed in statutes and judicial decisions. MERITS OF UNWRITTEN CONSTITUTION 1. It is written down in single document and can be easily obtained and consulted on any issue required by any person or group. 2. It may also incorporate other documents or statutes in its provisions such as the Land Use Act, the NYSC Act, etc.

DEMERITS OF UNWRITTEN CONSTITUTION a. It is not suitable for a multi-lingual, multi-ethnic and multi-religious society. b. Its provisions and interpretations are usually uncertain and subject to manipulations especially by leaders with autocratic tendencies. c. It is not suitable for a countries that has permanent illiterate citizens. d. Also, despite its long usage especially in England, it has not been found universally acceptable by emerging countries.

(3. ) THE UNITARY CONSTITUTION It operates a unitary system of government whereby all powers are concentrated in a single central body, which does not share power with any other body in the state. Such a system of government can delegate power to regional and local government as well as other subordinate body; this is the only source of authority fro which power emanates. The constitution is usually flexible as the government has power to amend it when it is expedient. However, the central government cannot at any time withdraw any power or function delegated to a sub-entity.

It operates a unicameral legislature but usually has a strong parliament with powerful composition in terms of membership. The citizens often owe allegiance to only one government. It usually also adopts the doctrine of “Nationalism” as opposed to the doctrine “domicile” in a federal system. Examples of countries operating this type of system of government are France, UK, Belgium, Italy, Gambia, Liberia, Sierraleone, Ghana, Togo, Cameroon, Ethiopia, Zimbabwe and New Zealand.

CHARACTERISTICS OF UNITARY CONSTITUTION Different countries adopt a unitary system of government for different reasons; however, the common reasons include: i. Small land/geographical area (size of the country). ii. Practiced because of the homogeneous nature of the people. iii. To concentrate power in national government with a view to promote a strong and stable government. iv. Simple and moderate to operate as it does not permit duplicity of government functionaries.

v. Requires few personnel/officials to run the system thereby saving the cost of governance. vi. Mode of amendment of the constitution is easier and the scope of consultation not too wide which brings about quick decision making process. DEMERITS OF UNITARY CONSTITUTION i. Power is concentrated at the centre in one arm of government. ii. The officials are burdened or saddled with too many functions and responsibilities.

iii. Its operation may be prone to dictatorial rule or authoritarianism. iv. Not suitable for a large population and size neither is it suitable for a multi-ethnic group or country. vi. Strict adherence to the unitary system of government reduces employment opportunities for the people of the country. (4. ) FEDERAL CONSTITUTION This type of constitution creates a federal system of government whereby there is a central government and constituent states making up a federation.

Ss. 2 (2) and 3 of the Constitution. Power is shared among the three tiers of government; namely (i) Federal; (ii) State; and (iii) Local Government and each exercises its constitutional powers and functions distinctly and separately from the other. The scope of each tier is listed in the constitution which are (a) Exclusive List; and (b) Concurrent List. See Part 1 of the Second Schedule of the 1999 Constitution.

FEATURES OF FEDERALISM Different countries adopt a unitary system of government for different reasons; however, the common reasons include: i. To unite people of different ethnicity, linguistics, cultural, economic, geographical or historical backgrounds. ii. To preserve their unity and identities/separate existence. iii. It allays the fears of the minority tribes that they may be exterminated by the majority tribes.

iv. Simple and moderate to operate as it does not permit duplicity of government functionaries. v. Federalism considers the local differences among the people by making constitutional provisions in the form of Separation of Powers, Fundamental Rights, Federal Character Principles, etc. vi. It brings about competition and healthy development among constituent states. DEMERITS OF FEDERALISM i. The cost of governance is astronomically high.

ii. The central government may sometimes be too powerful as to impede the growth of constituent states. Notice that constituent states are not sub-servient or subordinate to the federal government and as such, the federal government cannot usurp functions of any of the states to the federation except in accordance to the provisions of the constitution. iii. Its operation at times may lead to duplicity of functions with huge financial implication. iv. There is perceived fear of domination and marginalization. v. It creates tendencies for the people to owe allegiance more to their respective states than to project spirit of nationalism for the country.

vi. At times, unhealthy rivalry occurs among constituent states as there are possibilities of uneven, unequal development trend in the various states of the federation. (5. ) PRESIDENTIAL SYSTEM OF GOVERNMENT This is a system where all executive powers are vested in a person known as the “President”, “Head of State” or Head of Government. ” He exercises the executive powers of government either directly himself or through the Vice President, Ministers or other officers in the public service of a country.

The president is elected directly by the people or indirectly through the electoral college. The president is free to choose his ministers from within and outside his party; however, such appointment is subject to confirmation by the National Assembly. See generally Chapter 6 1999 CFRN; particularly Ss. 130, 132, 135, 136 and 137. He is responsible to the National Assembly and the people. He may be removed if he fails to uphold the tenets of the constitution in the performance of his constitutional duties on grounds of misconduct.

The people may not renew his mandate during general elections. He is an Executive President who is elected to be the head of state or government. The United States and Nigeria are among the countries that operates this type of system of government. (6. ) PARLIAMENTARY/CABINET SYSTEM OF GOVERNMENT Under this system, the executive powers of government is vested in the Prime Minister who is the Head of Government but not Head of State. The Head of State exercises ceremonial functions and may be a monarch or president but his position is a figure head type.

The Prime Minister and the entire ministers of his cabinet are all members of the same party; however, he is the first amongst equals. There is no clear cut separation of power in this system of government but rather a fusion of power. This is because in its operation, there is overlapping of powers and the same people constitute the executive and legislature. However, the judiciary is completely separated from the other two arms of government. The power to dismiss any minister is vested in the prime minister and also a vote of no-confidence may be passed against the prime minister. Examples of countries are UK, Canada, Israel, Jamaica, Australia, Nigeria (1960 -1966), etc.

DEMOCRACY; DEMOCRATIZATION; THE CHALLENGES

The word “Democracy” is derived from a combination of two Greek words “Demos” and “Kratia. ” Demos means people and the people participate in government either directly or through their chosen representatives. Former President Abraham Lincoln of the United States defined democracy as “a government o the people, by the people and for the people. ” This definition has since been accepted and used all over the world. Any true democracy must possess three (3) ingredients namely; (i) A government made up of the generality or representatives of the people.

(iii) A government that exists for the welfare of the people. Democracy can be classified into two namely; (i) Direct Democracy : This is where all the adult citizens come together to implement the law and also enforce it in the society at large. (ii) Indirect Democracy : This is where the citizens donate powers to their chosen leaders or government to rule over them. Ideally, the government is closer to the people and fulfills their desires. Features of Democracy are: (i) It must have a Constitution that is based on the Rule of Law;

(ii) Regular and periodic free and fair elections must be present; (iii) There must be organized and vibrant opposition; (iv) All the citizens must have equal rights; (v) There must be limitation of the tenure of office for the office holders; (vi) The doctrine of the Separation of Powers must be obtainable; and (vii) There must be an existence of an alternative and constitutional process of handing over power and change of government by means of election at regular intervals, and as contained in the Constitution.

Democratization refers to the transition of a non-democratic State to a democratic one; that is, the State has been practicing another system of government previously but has now decided to change the system to a democratic system in which all the citizens will have a say in the government. This includes substantive political changes and reforms aimed at making a State democratic. Democratization is influenced by various factors including economic development, history and civil society. Take Notice that the ideal result from democratization is to ensure that the people have the right to vote and have a voice in their political system.

Challenges militating against democracy include: (i) Corruption. (ii) No free and fair election. (iii) Election violence. (iv) Greediness. (v) Dirty politics. (vi) Imposition of candidates by the political parties. (viii) Since the system demands a lot of people and structure, it is expensive to maintain.

(viii) Elected officers often uphold their personal interests and agenda. (ix) Decision making process and implementations are very slow as the government is large and unwieldy. (x) It usually involve dialogue, persuasion, compromise, concession, lobby and cooperation and these promotes corruption in the society; etc.

ORGANS OF GOVERNMENT

The organs of government are basically Three (3) and these are the Executive; the Legislature and the Judiciary. The Executive is the branch of government that exercises authority in and holding responsibility for the governance of a State. It is at the centre. In Nigeria, it derives its powers under Section 5 of the 1999 Constitution. The Legislature is a generic term meaning a body which legislates. The term “Legg” means “Law” and “Lature” means “the place. ” Therefore, Legislature means a place for Law Making. Another term used as a synonym of legislature is “Parliament. ”

This is derived from the French word “Parley” which means “to talk” or to “discuss and deliberate. ” In Nigeria, it derives its powers under Section 4 of the 1999 Constitution. The Judiciary is the branch of government which administers justice. The term is broadly used to refer to the Courts, the Judges, Magistrates, Adjudicators, and other support personnel who run the system. The Courts apply the law and settle disputes and punish law breakers according to the law. In Nigeria, it derives its powers under Section 6 of the 1999 Constitution.

Functions of the Branches : 1. The Executive Implement or Enforces the Laws that are made; 2. The Legislature Makes or Enacts the Laws; and 3. The Judiciary Interprets the Laws. Many countries today practices some form of the system of government particularly the United States of America. The Three (3) branches exist and operates as a system of checks and balances to ensure that no one branch exceeds the others in power.

QUESTIONS 1. All over the world, no Constitution can be said to be perfect. Discuss exhaustively. 2. Discuss fully the Organs of Government. 3. Critically discuss Democracy and Democratization highlighting the factors militating against it.