CONSTITUTIONAL LAW THE CONSTITUTION AND CONSTITUTIONAL LAW All

CONSTITUTIONAL LAW THE CONSTITUTION AND CONSTITUTIONAL LAW All over the world, various associations, 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. 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 THE CONSTITUTION AND CONSTITUTIONAL LAW 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 GRUND NORM (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.

CONSTITUTIONAL LAW THE CONSTITUTION AND CONSTITUTIONAL LAW (Cont’d) 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 (ahtw) 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. ”

CONSTITUTIONAL LAW THE CONSTITUTION AND CONSTITUTIONAL LAW 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 S. 33 – 43. 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. E. g. LSS Constitution. 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/indigenous one like 1999 CFRN. 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.

CONSTITUTIONAL LAW THE CONSTITUTION AND CONSTITUTIONAL LAW 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/economic/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: (i) (iii) (iv) (v) T A G G S - Territorial Boundary; A Group of People (with common origin, language, culture, etc. ); Geographical Location; Government; Sovereignty.

CONSTITUTIONAL LAW THE CONSTITUTION AND CONSTITUTIONAL LAW SOURCES OF A CONSTITUTION: (i) Past Experiences of the Country; (ii) Customs and Way of Life of the People; (iii) Statutes passed by Parliament; (iv) Rules and Conventions; (v) British Magna Carta of 1215; (vi) Constitutions of Other Countries; (vii) American Bill of Rights; (viii) Decrees and Edicts of Military Governments; (ix) Deliberations of Constitutional Conferences or Constituent Assemblies; (x) Works of Eminent Writers, Jurists, Historians, Philosophers, Politicians, Statesmen, Essayists, etc. such as John Locke, A. V. Dicey, etc; (xi) Case Laws or Judicial Precedents; (xii) 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: (i) Written and Unwritten; (ii) Rigid and Flexible; (iii) Unitary or Federal; (iv) Presidential and Parliamentary. (v) Monarchical, Oligarchy, Democratic and Republican. For this purpose, the two broad classifications i. e. Written & Unwritten Constitutions as well as Unitary and Federal would be examined.

CONSTITUTIONAL LAW THE CONSTITUTION AND CONSTITUTIONAL LAW MERITS OF WRITTEN CONSTITUTION (i) It is written down in single document and can be easily obtained and consulted on any issue required by any person or group. (ii) 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. (iii) It is rigid. (iv) (vi) (viii) (ix) Easy Reference. Heterogeneous in nature (different people, different languages, etc). Prevents the government from arbitrary rule. It spells out the powers and functions of the arms of government. Makes citizens understand their rights and duties because it is written. Reduces frictions among the organs of government. Examples of countries that practices this are Nigeria, India, USA, Canada, etc. DEMERITS OF A WRITTEN CONSTITUTION (i) (ii) It is cumbersome in its mode of amendment due to its rigidity. 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.

CONSTITUTIONAL LAW THE CONSTITUTION AND CONSTITUTIONAL LAW MERITS OF AN UNWRITTEN CONSTITUTION (i) It is not written in a single document but can be found in various sources like Statutes, Conventions and judicial decisions. (ii) It emanates from the political way of life of the people. (iii) It is suitable for a homogeneous society. E. g. Britain. (iv) It is flexible in nature and can be easily amended. (v) It allows for quick decision making and functions of organs of government are interwoven. (vi) It is easy to amend. DEMERITS OF AN UNWRITTEN CONSTITUTION (i) It is not suitable for a multi-lingual, multi-ethnic and multi-religious society. (ii) Its provisions and interpretations are usually uncertain and subject to manipulations especially by leaders with autocratic tendencies. (iii) It is not suitable for a countries that has permanent illiterate citizens. (iv) Also, despite its long usage especially in England, it has not been found universally acceptable by emerging countries.

CONSTITUTIONAL LAW THE CONSTITUTION AND CONSTITUTIONAL LAW 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.

CONSTITUTIONAL LAW THE CONSTITUTION AND CONSTITUTIONAL LAW 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.

CONSTITUTIONAL LAW THE CONSTITUTION AND CONSTITUTIONAL LAW DEMERITS OF UNITARY CONSTITUTION (i) (iii) (iv) Power is concentrated at the centre in one arm of government. The officials are burdened or saddled with too many functions and responsibilities. Its operation may be prone to dictatorial rule or authoritarianism. Not suitable for a large population and size neither is it suitable for a multi-ethnic group or country. (v) Strict adherence to the unitary system of government reduces employment opportunities for the people of the country. 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 CFRN. 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 2 nd Schedule of the 1999 Constitution.

CONSTITUTIONAL LAW THE CONSTITUTION AND CONSTITUTIONAL LAW 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/CRITICISMS OF FEDERALISM (i) (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. Its operation at times may lead to duplicity of functions with huge financial implication. (i) The cost of governance is astronomically high.

CONSTITUTIONAL LAW THE CONSTITUTION AND CONSTITUTIONAL LAW (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. 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/government. The United States and Nigeria operates this system of government.

CONSTITUTIONAL LAW THE CONSTITUTION AND CONSTITUTIONAL LAW 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 noconfidence may be passed against the prime minister. Examples of countries that are practicing or had practiced this type of system are UK, Canada, Jamaica, Israel, India, New Zealand, Australia and Nigeria (1960 – 1966).

TEXTBOOKS (i) Wade, Bradley : Constitutional Law 6 th Ed. (ii) Dicey : The Law and the Constitutions. (iii) Aguda : Judiciary under the Presidential System of Govt. (iv) O. Oluyede : Constitutional Law in Nigeria. (v) Wade, H. W. R. : Constitutional and Administrative Law. (vi) Hood Phillips : Constitutional and Administrative Law. (vii) Ese Malemi : The Nigerian Constitutional Law.