Constitutional Supremacy in Nigeria

Introduction

Constitutional supremacy is the foundational principle of the Nigerian legal system. Section 1 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) declares the Constitution as the supreme law of the land, providing that any law inconsistent with its provisions is void to the extent of the inconsistency. This principle establishes the Constitution as the highest legal authority, binding all persons and institutions in Nigeria, including the government itself. The doctrine of constitutional supremacy distinguishes the Nigerian constitution from a parliamentary supremacy system and has profound implications for the exercise of governmental power.

Section 1: The Supremacy Clause

Section 1(1) of the Constitution provides: “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” Section 1(3) further provides that any law inconsistent with the Constitution is void to the extent of the inconsistency. These provisions establish a hierarchy of legal norms with the Constitution at the apex.

The supremacy clause has been interpreted by the Supreme Court in numerous cases. In A-G of the Federation v A-G of Abia State (2001) 11 NWLR (Pt 725) 689, the court held that the supremacy of the Constitution means that all actions of government, whether legislative, executive, or judicial, must conform to constitutional requirements.

Effects of Constitutional Supremacy

Legislative Supremacy of the Constitution

The National Assembly and state Houses of Assembly exercise legislative powers conferred by the Constitution. Any legislation inconsistent with the Constitution is void. The courts have the power of judicial review to declare legislation unconstitutional.

Executive Action

All executive action must be authorized by the Constitution or by legislation made under it. Executive acts that exceed constitutional authority or violate constitutional rights are unlawful and may be set aside by the courts.

Judicial Power

The judiciary exercises judicial power under the Constitution and is bound by its provisions. Courts must interpret and apply the law in conformity with the Constitution. The Supreme Court has the final authority to interpret the Constitution.

Constitutional Amendment (Section 9)

Section 9 establishes the procedure for amending the Constitution. The amendment process reflects the supreme character of the Constitution by requiring special procedures beyond ordinary legislation:

1. An amendment bill must be passed by at least two-thirds majority of each chamber of the National Assembly
2. For amendments affecting certain fundamental provisions (including the creation of new states, fundamental rights, and constitutional amendment procedure), the bill must also be approved by at least two-thirds of all state Houses of Assembly
3. The bill is then presented to the President for assent

The amendment procedure has been used to alter the Constitution several times, most notably through the First (2010), Second (2010), Third (2010), and Fourth (2015) Alterations, which addressed electoral reform, judicial appointments, and local government.

Emergency Powers (Section 305)

Section 305 of the Constitution provides for the proclamation of a state of emergency by the President where the Federation is in danger, there is a breakdown of public order, or there is a natural disaster. During a state of emergency, the President may take measures that would otherwise be outside his constitutional authority.

However, the exercise of emergency powers is subject to constitutional limitations. The National Assembly must approve the declaration of emergency within certain periods. Even during a state of emergency, certain fundamental rights (including the right to life and the right to freedom from torture) may not be derogated from.

The Constitution as a Living Document

Nigerian courts have adopted a liberal and purposive approach to constitutional interpretation. The Supreme Court in Uwaifo v A-G (1981) 2 NCLR 1 held that the Constitution should be interpreted as a living document, capable of adapting to changing circumstances. The court rejected a rigid, literal approach in favor of an interpretation that gives effect to the Constitution’s fundamental purposes and values.

Conclusion

Constitutional supremacy is the bedrock of the Nigerian legal system, establishing the Constitution as the highest legal authority and requiring all governmental action to conform to constitutional requirements. The supremacy clause, the amendment procedure, the limits on emergency powers, and the courts’ power of judicial review all give practical effect to this fundamental principle. The Supreme Court’s role as the guardian of the Constitution ensures that constitutional supremacy remains a living reality in Nigerian law.