WHAT IS CONSTITUTIONAL LAW? A BEGINNER’S GUIDE FOR NIGERIANS

Constitutional law is the bedrock upon which any modern democratic society is built. For Nigerians, understanding this fundamental area of law is not merely an academic exercise; it is crucial for navigating daily life, exercising rights, holding leaders accountable, and participating effectively in the nation’s democratic journey. This comprehensive guide aims to demystify constitutional law, providing a clear and accessible overview specifically tailored for a Nigerian audience.

Introduction: The Supreme Law of the Land

At its core, constitutional law is the body of law that defines the role, powers, and structure of different entities within a state, namely the executive, legislature, and judiciary, and also the fundamental rights and duties of citizens. In Nigeria, the supreme law is the Constitution of the Federal Republic of Nigeria 1999 (as amended). It is not just a document; it is the ultimate legal authority, a social contract that binds all persons and authorities, from the President to the ordinary citizen. Any law, action, or decision that contradicts the Constitution is, to the extent of its inconsistency, null and void. This principle, known as constitutional supremacy, is explicitly stated in Section 1 of the Nigerian Constitution.

Imagine a blueprint for building a complex structure. The Constitution is that blueprint for the Nigerian state. It lays out the framework for how the country should be governed, how power is distributed, and what protections citizens are entitled to. Without it, there would be chaos, arbitrariness, and a constant struggle for power.

Historical Evolution of Constitutionalism in Nigeria

To truly grasp Nigerian constitutional law, it’s essential to understand its historical trajectory. Our constitutional journey is deeply intertwined with our colonial past and our aspirations for self-governance and democracy.

Colonial Era Constitutions (1914-1960)

The foundation of Nigeria’s constitutional development can be traced back to the British colonial period. These early constitutions were primarily instruments for colonial administration:

1914 Amalgamation and Constitution: This constitution marked the amalgamation of the Northern and Southern Protectorates, creating the entity we now know as Nigeria. Lord Lugard became the first Governor-General, and the constitution essentially provided for a centralized colonial rule.
1922 Clifford Constitution: This introduced the elective principle, allowing a limited number of Nigerians to be elected to the Legislative Council, albeit with strict qualifications. It was a significant, though small, step towards indigenous participation in governance.
1946 Richards Constitution: This constitution aimed to promote Nigerian unity by integrating the North and South into a single legislative body and increasing Nigerian representation. However, it also entrenched regionalism, which would later become a recurring theme in Nigerian politics.
1951 Macpherson Constitution: This constitution saw greater indigenous input in its making and established a quasi-federal system with regional legislatures and a central House of Representatives. It was a crucial step towards self-governance.
1954 Lyttleton Constitution: This constitution solidified Nigeria’s federal structure, granting greater autonomy to the regions and paving the way for eventual independence.
1960 Independence Constitution: This marked Nigeria’s attainment of political independence. It was a Westminster-style parliamentary system, with the Queen of England as Head of State, represented by a Governor-General.

Post-Independence Constitutions

1963 Republican Constitution: This replaced the Queen as Head of State with an elected President, solidifying Nigeria’s status as a republic. It largely retained the parliamentary system.
Military Regimes and Decrees (1966-1979, 1983-1999): Periods of military rule saw the suspension of the Constitution and governance through decrees and edicts. These periods were characterized by a concentration of legislative and executive powers in the military Head of State, often leading to human rights abuses and a subversion of the rule of law.
1979 Constitution: This introduced the American-style presidential system, with an executive President and a clear separation of powers. This system aimed to provide a more stable and effective government.
1999 Constitution (as amended): This is Nigeria’s current Constitution, marking the return to civilian democratic rule. It largely mirrors the 1979 Constitution in its presidential system and federal structure. It has undergone several amendments to address evolving national needs and challenges.

Understanding this history helps explain why the current Constitution emphasizes federalism, separation of powers, and fundamental rights – lessons learned from periods of over-centralization and authoritarian rule.

Core Concepts of Constitutional Law in Nigeria

Several foundational principles underpin Nigerian constitutional law:

1. Constitutional Supremacy

As mentioned, this is the paramount principle. Section 1(1) of the 1999 Constitution unequivocally states: “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” This means:

Hierarchy of Laws: The Constitution is at the apex of all laws. No other law, whether an Act of the National Assembly, a State Law, or even customary or Islamic law, can contradict its provisions.
Invalidity of Inconsistent Laws: Section 1(3) further provides that “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 gives the judiciary the power to strike down laws that violate the Constitution.

2. Federalism

Nigeria operates as a federation, meaning governmental powers are shared between a central government (the Federal Government) and component units (the 36 states and the Federal Capital Territory, FCT). This is enshrined in Section 2(2) of the Constitution.

Reasons for Federalism in Nigeria: Federalism was adopted to accommodate Nigeria’s vast ethnic, cultural, and religious diversity, allowing each unit some autonomy while maintaining national unity. It aims to bring governance closer to the people and foster healthy competition among states.
Division of Powers: The Constitution contains detailed schedules outlining the legislative powers:
- Exclusive Legislative List (Second Schedule, Part I): Matters on which only the National Assembly (Federal Legislature) can make laws (e.g., defense, foreign affairs, currency, customs, aviation).
- Concurrent Legislative List (Second Schedule, Part II): Matters on which both the National Assembly and State Houses of Assembly can make laws (e.g., education, health, industrial development, electoral matters to some extent). Where there is a conflict, federal law prevails.
- Residual Powers: Any matter not listed in either the Exclusive or Concurrent List falls under the residual powers of the states.

3. Separation of Powers

To prevent the concentration and abuse of power, the Constitution divides governmental functions among three distinct organs:

The Legislature (National Assembly at the Federal level, House of Assembly at the State level): Primarily responsible for making laws. This is covered in Chapter V of the Constitution.
- Federal: The National Assembly consists of the Senate and the House of Representatives.
- State: Each state has a House of Assembly.
The Executive (President at the Federal level, Governor at the State level): Responsible for implementing and enforcing laws. This is covered in Chapter VI.
- Federal: The President, Vice-President, and Ministers.
- State: The Governor, Deputy Governor, and Commissioners.
The Judiciary (Courts): Responsible for interpreting laws, adjudicating disputes, and ensuring justice. This is covered in Chapter VII.
- Headed by the Supreme Court, followed by the Court of Appeal, Federal High Court, State High Courts, National Industrial Court, Sharia Courts of Appeal, and Customary Courts of Appeal.

4. Checks and Balances

While powers are separated, the Constitution also provides mechanisms for each arm to check the powers of the others, ensuring no single arm becomes too powerful:

Legislative Checks on Executive: The National Assembly can impeach the President, approve ministerial appointments, and investigate the executive.
Executive Checks on Legislature: The President can assent to or veto bills (though the National Assembly can override a veto), and has powers related to budget implementation.
Judicial Checks on Both (Judicial Review): The judiciary has the crucial power of judicial review, allowing it to declare laws made by the legislature or actions taken by the executive unconstitutional if they violate the provisions of the Constitution. This is a fundamental safeguard against legislative or executive overreach.

5. Rule of Law

This principle means that everyone, including those in power, is subject to the law. No one is above the law. Key aspects include:

Supremacy of Law: All governmental actions must be based on and authorized by law.
Equality Before the Law: All persons are equal before the law and are entitled to equal protection of the law.
Fair Hearing: Everyone has a right to a fair hearing when their rights and obligations are being determined.
Absence of Arbitrary Power: Government cannot act arbitrarily; its actions must be predictable and consistent with established legal principles.
Judicial Independence: The judiciary must be independent and impartial to effectively uphold the rule of law.

Fundamental Human Rights (Chapter IV of the 1999 Constitution)

Perhaps one of the most critical aspects of constitutional law for the average Nigerian is the chapter on fundamental human rights. Chapter IV of the 1999 Constitution guarantees a range of civil and political rights, similar to those found in international human rights instruments. These rights are justiciable, meaning they can be enforced in a court of law.

Key fundamental rights include:

Right to Life (Section 33): No one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty.
Right to Dignity of Human Persons (Section 34): No person shall be subjected to torture or to inhuman or degrading treatment.
Right to Personal Liberty (Section 35): Every person is entitled to personal liberty, and no person shall be deprived of such liberty save in accordance with a procedure permitted by law (e.g., lawful arrest, detention for a criminal offense).
Right to Fair Hearing (Section 36): Guarantees the right to a fair hearing within a reasonable time by a court or tribunal established by law and constituted in such a manner as to secure its independence and impartiality. This includes the presumption of innocence, right to legal representation, and public hearing.
Right to Private and Family Life (Section 37): Every citizen has the right to respect for his private and family life, his home, and his correspondence.
Right to Freedom of Thought, Conscience, and Religion (Section 38): Every person shall be entitled to freedom of thought, conscience, and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice, and observance.
Right to Freedom of Expression and the Press (Section 39): Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.
Right to Peaceful Assembly and Association (Section 40): Every person shall be entitled to assemble freely and associate with other persons, and in particular, he may form or belong to any political party, trade union, or any other association for the protection of his interests.
Right to Freedom of Movement (Section 41): Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.
Right to Freedom from Discrimination (Section 42): No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth, sex, religion, ethnic or place of origin, or political opinion.
Right to Acquire and Own Immovable Property Anywhere in Nigeria (Section 43): Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.

It’s important to note that these rights are not absolute and can be restricted in certain circumstances, usually in the interest of public safety, order, morality, or health, or to protect the rights and freedoms of others, provided such restrictions are demonstrably justifiable in a democratic society.

Enforcement of Fundamental Rights

If your fundamental rights are violated, you can seek redress in court. The High Courts (both Federal and State) have special jurisdiction to hear applications for the enforcement of fundamental rights (Section 46). This process often involves applying for prerogative writs like habeas corpus (to challenge unlawful detention), mandamus (to compel a public official to perform a duty), and prohibition (to prevent an unlawful act).

Fundamental Objectives and Directive Principles of State Policy (Chapter II)

While Chapter IV deals with justiciable fundamental rights, Chapter II of the Constitution outlines Fundamental Objectives and Directive Principles of State Policy. These are aspirational goals for the Nigerian state, guiding principles for government actions, but they are generally non-justiciable. This means you cannot directly sue the government for failing to provide, for example, free education or housing, as these are policy goals rather than enforceable individual rights.

However, these principles are crucial because they set the moral and ethical framework for governance. They include objectives related to:

Political Objectives: Promoting national integration, prohibiting discrimination, ensuring full participation of citizens in governance.
Economic Objectives: Managing the national economy for the maximum welfare, freedom, and happiness of every citizen on the basis of social justice and equality of status and opportunity.
Social Objectives: Ensuring that the sanctity of the human person shall be recognized, human dignity shall be maintained and enhanced, and the independence, impartiality, and integrity of courts of law, and easy accessibility thereto shall be secured and maintained.
Educational Objectives: Government shall direct its policy towards ensuring that there are equal and adequate educational opportunities at all levels.
Foreign Policy Objectives: Promoting African unity, total political, economic, social, and cultural liberation of Africa, and all other forms of international co-operation conducive to the consolidation of universal peace and mutual respect and friendship among all¹ peoples.
Environmental Objectives: Protecting and enhancing the environment.

While non-justiciable in themselves, these principles often inform judicial interpretation of other constitutional provisions and legislative enactments.

Citizenship (Chapter III)

The Constitution defines who is a citizen of Nigeria and how citizenship can be acquired. There are generally three ways:

Citizenship by Birth (Section 25): Primarily for persons born in Nigeria before or after independence, one of whose parents or grandparents is a citizen of Nigeria.
Citizenship by Registration (Section 26): For foreign women married to Nigerian men, or for persons of full age and capacity born outside Nigeria, any of whose grandparents is a citizen of Nigeria.
Citizenship by Naturalization (Section 27): For foreign nationals who have resided in Nigeria for a specified period (at least 15 years), are of good character, and are willing to contribute to the well-being of Nigeria, among other conditions.

The Constitution also provides for dual citizenship and outlines circumstances under which citizenship can be renounced or deprived.

Electoral Law and the Constitution

The Constitution is the primary legal framework for Nigeria’s electoral process, ensuring democratic governance through periodic elections.

Independent National Electoral Commission (INEC): The Constitution establishes INEC as an independent body responsible for organizing, conducting, and supervising all elections.
Right to Vote and Be Voted For: The Constitution implicitly guarantees the right of adult citizens to vote and to stand for election, subject to meeting prescribed qualifications.
Election Petitions: The Constitution provides for election tribunals to hear and determine disputes arising from elections, ensuring a mechanism for resolving electoral grievances.

Emergency Powers (Section 305)

The Constitution grants the President powers to declare a state of emergency under specific, extraordinary circumstances, such as:

War or imminent invasion.
Breakdown of public order and safety.
Natural disaster or public danger.

A proclamation of emergency must be published in the Official Gazette and approved by the National Assembly within a specified timeframe. During a state of emergency, certain fundamental rights may be temporarily restricted, but not entirely abrogated. This power is subject to constitutional safeguards to prevent its abuse, a lesson learned from past military regimes that often used such powers to suppress dissent.

Amending the Constitution (Section 9)

The Constitution is a living document, capable of being amended to reflect changing societal needs and aspirations. The process for amending the Nigerian Constitution is rigorous, requiring significant political consensus:

Proposal: An amendment can be proposed through a bill in either the Senate or the House of Representatives.
National Assembly Approval: The bill must be supported by a two-thirds majority of all members of each chamber of the National Assembly.
State Houses of Assembly Ratification: The proposed amendment then requires the approval by a resolution of the Houses of Assembly of not less than two-thirds of all the States in the Federation (currently 24 out of 36 states).
Presidential Assent: While not explicitly stated as a requirement for constitutional amendment itself in Section 9, typically, such Acts would still require Presidential assent to become law.

The rigorous nature of the amendment process ensures that the Constitution is not easily altered by transient political interests and reflects a broad national consensus.

Sources of Nigerian Constitutional Law

Beyond the 1999 Constitution itself, Nigerian constitutional law draws from several other sources:

Nigerian Legislation: Acts of the National Assembly and Laws of State Houses of Assembly, especially those that elaborate on constitutional provisions (e.g., Electoral Act, Acts establishing specific federal agencies).
Nigerian Case Law (Judicial Precedent): Decisions of Nigerian courts, particularly the Supreme Court and Court of Appeal, in interpreting the Constitution and other laws. These judgments establish precedents that lower courts must follow.
Received English Law: This includes English common law, doctrines of equity, and statutes of general application in force in England before October 1, 1960. While less central to constitutional law directly, they form part of the broader legal system that influences constitutional interpretation.
Customary Law and Islamic Law: These legal systems operate alongside statutory and common law, particularly in civil matters, and their application is sometimes subject to constitutional provisions (e.g., in relation to fundamental rights).
International Law and Treaties: Nigeria is a signatory to various international human rights treaties and conventions. While international treaties generally do not have direct force of law in Nigeria until domesticated by the National Assembly, they often influence constitutional interpretation, especially concerning human rights.

Challenges and Prospects of Constitutionalism in Nigeria

Despite the elaborate framework, constitutionalism in Nigeria faces ongoing challenges:

Military Interruptions: The long periods of military rule have historically undermined constitutionalism, leading to a culture where constitutional provisions were often disregarded.
Corruption: Corruption at various levels of government hinders the effective implementation of constitutional provisions, particularly those related to good governance and socio-economic rights.
Weak Institutions: While the Constitution establishes strong institutions, their effectiveness can be hampered by political interference, inadequate funding, and lack of capacity.
Respect for the Rule of Law: There are instances where the executive or other powerful individuals disregard court orders or constitutional provisions, undermining the rule of law.
Public Awareness and Participation: A significant portion of the populace lacks a deep understanding of their constitutional rights and responsibilities, limiting their ability to demand accountability.
Resource Control and Federalism: Debates persist regarding the equitable distribution of resources and powers between the federal and state governments, leading to calls for restructuring and constitutional amendments.
Indigeneity vs. Residency: The constitutional provisions on indigeneity often create discrimination against Nigerians living outside their states of origin, hindering national integration.

However, there are also prospects for strengthening constitutionalism:

Vibrant Civil Society: Nigeria has a robust civil society that actively advocates for human rights, good governance, and constitutional reforms.
Active Judiciary: Despite challenges, the Nigerian judiciary has, at times, demonstrated courage in upholding the Constitution and protecting fundamental rights.
Growing Public Demand for Accountability: Increased awareness and access to information are leading to greater public demand for adherence to constitutional principles.
Ongoing Constitutional Review Efforts: The National Assembly periodically engages in constitutional review processes, providing opportunities to address existing flaws and adapt the Constitution to contemporary realities.

Conclusion: Why Constitutional Law Matters to You, the Nigerian Citizen

Constitutional law is not just for lawyers or politicians; it is the ultimate safeguard of your freedom, rights, and collective well-being as a Nigerian citizen.

It defines your rights: Knowing your fundamental rights empowers you to challenge abuses of power and demand justice.
It shapes governance: Understanding how power is distributed and checked helps you evaluate the performance of your elected officials and hold them accountable.
It promotes stability and order: A well-functioning constitutional framework provides predictability and stability, essential for national development.
It fosters democracy: Active engagement with constitutional principles is vital for the sustenance and deepening of Nigeria’s democracy.

As a Nigerian, take the time to familiarize yourself with the 1999 Constitution. It is your ultimate legal shield and the blueprint for the Nigeria we aspire to build. Understanding it is the first step towards active, informed citizenship and contributes to strengthening the foundations of our democratic republic. The ongoing journey of constitutionalism in Nigeria is a collective responsibility, requiring vigilance, participation, and a steadfast commitment to the principles enshrined in our supreme law.

Table of Contents