The concept of ‘constitutional supremacy’ is very important in Constitutional law. There and then, I view that some issues are surrounding the said concept especially in the aspects of the scopes and the realities of the concept. These are the concentration of this paper.
The word ‘scope’ according to the online Webster dictionary, means ‘intention, object’. While the word ‘reality’ according to the same dictionary, means ‘the true situation that exists: the real situation; something that exists or happens: a real event, occurrence, situation, etc.’. What this paper views is that the realities of the ‘constitutional supremacy’ are different from its scope (intention) as far as Nigerian democratic system of government is concerned.
Constitutional supremacy is said to be similar to constitutional sovereignty according to Ese Malemi (of blessed memory) in his book ‘Ese Malemi, The Nigerian Constitutional Law, Princeton Publication Co., Ikeja, Lagos, Nigeria, First Edition, 2006, pages: 48-49 as he defined ‘constitutional supremacy’ thus ‘Constitutional sovereignty or supremacy means the supremacy and bindingness of the Constitution, which is the will of the people, on all authorities and persons in the country’. A.G. Bendel State v A.G. Fed. & 22 Ors. (1982) All NLR 85 SC. The author further posited that ‘the people make and own the constitution. The constitution recognizes the people as the sovereign and the will of the people as expressed in the constitution is supreme and sovereign’. These statements are what I view to be the scope of the Constitutional supremacy. In this definition of the constitutional supremacy, some words are important to highlight, these words are: ‘peoples’ sovereignty’, ‘will of the people’, ‘expressed in the constitution is supreme and sovereign’. The question that this paper is considering is what the realities of these definitions or meanings or scopes are in the present Nigerian democratic system of government?!
First and foremost, section 14(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (amended)-herein after referred to as the Constitution- has provided that the people are the sovereign entity and the final authority in the country when it provides as follows ‘It is hereby, accordingly, declared that – (a) sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority;’. And this constitutional supremacy is reechoed by the provisions of the Constitution in section 1 of the Constitution as follows ‘1(1) this Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. (2) the Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution. (3) If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void’. This in my humble view means that whatever that is done by any person or authority against the will of the people or in other words, against the constitution shall to such extent of its inconsistency be void. However, I beg to defer that this is the reality of the democracy that Nigeria operates as of today! There has been encroachment on the constitutional supremacy in one way or the other but Nigerians only have learnt one thing and that is ‘to live by such inconsistency and submit to God when frustrated’! I shall come back to this view in the later paragraphs of this paper.
The following is what is taken mistakenly to be the will of the people to submit themselves to the constitution which is a real intention of the military ruling council and or a partial will of the people, with due respect ‘WHEREAS the Federal Government of the Federal Republic of Nigeria in compliance with the Transition to Civil Rule (Political Programme) Act 1998 has, through the Independent National Electoral Commission, conducted elections to the office of President and Vice-President, Governors and Deputy-Governors, Chairmen and Vice-Chairmen, the National Assembly, the Houses of Assembly and the Local Government Councils ; AND WHEREAS the Federal Government in furtherance of its commitment to hand over to a democratically elected civilian administration on 29th May, 1999, inaugurated on 11th November 1998, the Constitutional Debate Co-ordinating Committee charged with responsibility to, among other things, pilot the debate on the new Constitution for Nigeria, co-ordinate and collate views and recommendations canvassed by individuals and groups for a new Constitution for Nigeria ; AND WHEREAS the Constitutional Debate Co-ordinating Committee benefitted from the receipt of large volumes of memoranda from Nigerians at home and abroad and oral presentations at the public hearings at the debate centres throughout the country and the conclusions arrived thereat and also at various seminars, workshops and conferences organised and was convinced that the general consensus of opinion of Nigerians is the desire to retain the provisions of the 1979 Constitution of the Federal Republic of Nigeria with some amendments ; AND WHEREAS the Constitutional Debate Co-ordinating Committee has presented the report of its deliberations to the Provisional Ruling Council; AND WHEREAS the Provisional Ruling Council has approved the report, subject to such amendments as are deemed necessary in the public interest and for the purpose of promoting the security, welfare and good governance and fostering the unity and progress of the people of Nigeria with a view to achieving its objective of handing over an enduring Constitution to the people of Nigeria ; AND WHEREAS it is necessary, in accordance with the programme on transition to civil rule, for the Constitution of the Federal Republic of Nigeria 1979, after necessary amendments and approval by the Provisional Ruling Council, to be promulgated into a new Constitution for the Federal Republic of Nigeria in order to give the same force of law with effect from 29th may 1999’. In my view, this is such as enforcing the will of the military government on the will of the people because, in reality, the will of the people has not been respected and or obeyed.
Furthermore, constitutional supremacy is no doubt a principle/concept of a democracy. The word ‘Democracy’ according to President Abraham Lincoln, the then President of the United States of America, is ‘a government of the people, by the people and for the people’. In other words, ‘Democracy’ is: (i) a government made up of the generality or representatives of the people; (ii) a government formed and installed by the people; and (iii) a government that exists for the welfare of the people’. See: Ese Malemi, The Nigerian Constitutional Law, Princeton Publication Co., Ikeja, Lagos, Nigeria, First Edition, 2006, page: 30. There is no doubt that in Nigeria, as of the moment, the types of democracy practiced is ‘the Indirect/Representative Democracy,’ which is a system of democracy where all persons of voting age are expected to vote to form the government by electing persons into government who will represent and act on their behalf, especially in the executive and legislative arms of government, which elected persons are expected to properly constitute all the other organs and agencies of government, and generally manage the affairs of government for the welfare of the people’. See: Ese Malemi (op cit) at page 31.
As has been said above, government is then a joint function of: (i) the Executive; (ii) Legislature; (iii) and the Judiciary. Truly, this separation of powers as provided in the Constitution is the basis of powers shared by the various arms of government, so therefore that no arm must encroach on the other. However, the reality has been that the executive especially, having the stronger hand and being in control of powers has always become unrestricted by judicial order made by the court (another arm of government). The legislature too in making the laws for the good government of the people or the nation, refuse to view the will of the people as what should and must count in the legislation proposed to be passed by government.
Then, it came to my mind to ask as to the exact ‘will of the people’ that is being domesticated and adopted in the Constitution?! What I believe with due respect, is that, when a legislation is being sponsored on the floor of the National Assembly, and there is people’s outcry against such bill being proposed to be passed into law, then, the National Assembly has to listen and do the will of the people, though, it is a concept in democracy that ‘the minority have their say while the majority have their way’. So, whatever is supported by majority becomes the law of the land. It goes beyond constitutional supremacy for the National Assembly to force any law on its people as doing so is likely to lead to chaos and deliberate disobedience to the rule of law.
Furthermore, I stand to challenge the ouster clause made in section 6(6)(d) of the Constitution which restricts the judiciary from issues as follows ‘Shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law’. The question is whether this is the will of the people or the will of the Provisional Ruling Council (PRC) which handed over power to the democratically elected government?! This is indeed an escape route for all those who committed one atrocities or the other during the military regime. Perhaps, this provision will become of no importance about twenty (20) years to this time by the time when all those ex-military men would have exited this earth!
Finally, what I am of the view is that constitutional supremacy in Nigerian democratic system of government has been suspended and the law and of course the rule is that of the politically elected executive and legislative arms of government, while the judiciary (the last hope of the common man) is just a bystander in the governance of the nation. This indeed is against the scope of the constitutional supremacy and has to be reviewed and government must be saved and returned to its status quo anti (i.e. its previous status), a duty of all Nigerian citizens!