CONSTITUTION

A constitution can be defined or seen as the agreed principles by which a state is governed. It
is a system of agreed rules and principles that govern a country. A scholar defined a
constitution as the principal functions of the organs of state and also declares the principles of
governing the operation of these organs.

NOTE: a constitution is not necessarily contained in a single document.

O. Hood Phillips defined the constitution as a system of laws, customs & conventions which
define the composition and powers of organs of state and regulates relations of the various
organs to one another and to the private citizens. A constitution can also be seen as the sum
total of rules, conventions and other practices by which a society governs itself. Constitution
involves former rules by which a society preserves law & order. A constitution is expected to
set up various organs of government and their functions in a broad sense. For instance, the
legislature is expected to make laws, the judiciary to interpret such laws. Usually the
constitution is the supreme law of any country. In other words, it is the grundnorm (law that
is above all other laws) for instance section 1(3) of the 1999 constitution of the Federal
Republic of Nigeria (FRN) as amended emphasizes the grundnorm nature of the constitution.
Section 1(3) states ‘if any 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’.

Constitution can be generally classified into following categories:

1. Written constitution
2. Unwritten constitution
3. Flexible constitution
4. Rigid constitution
5. Unitary constitution
6. Confederal constitution
7. Federal constitution.

FEDERALIST CONSTITUTION: a scholar defined a federalist constitution as a ‘a

constitution where powers of government have been distributed between one level of
government and another in its strict sense it means the distribution of powers between the
central government and the governments of the coordinate states’.

FEATURES OF THE FEDERALIST CONSTITUTION

 1. It is supreme over Laws, Acts and actions inconsistent with its provisions. Section 1
(3) of 1999 constitution Federal Republic of Nigeria as amended.
2. The powers of state government or coordinate units are entrenched and clearly
defined in the constitution thus making such powers difficult to be taken away by the
federal or central government. NOTE: federal constitutions are usually rigid and
written. Nigeria’s federal constitution of 1999 is rigid and written thus making it
difficult to easily amend. See section 9(2) of the constitution of the FRN as amended
that supports this assertion.

POWERS OF THE JUDICIARY

There are two levels of administration which is the federal and the coordinate / component
units usually referred to as states. They both derive their powers from the constitution.

The judiciary plays a big role in this constitution because it is an organ of government geared
with the responsibility to interpret the laws.

The declaration of any act of the federal/state government inconsistent with the provisions of
the constitution null and void section 6(6) clearly supports this assertion.

NOTE: WHERE THERE IS A DISPUTE BETWEEN THE FEDERAL AND STATE

GOVERNMENT OR BETWEEN STATE GOVERNMENT. SECTION 232(1) OF THE
SAME CONSTITUTION GIVES THE SUPREME COURT THE ORIGINAL
JURISDICATION TO AJUDICATE (JUDICIAL POWERS GIVING TO THE JUDICIAL
TO MAKE LAWS TO GOVERN THE STATE)

Furthermore in a federal constitution, legislative powers are shared between federal and state
government. These powers are divided into:

1. EXCLUSIVE POWERS: these powers are reserved exclusively for the federal
government. Only the national assembly can legislate on the items obtained in the
exclusive list.
2. CONCURRENT LIST: both the federal & state legislatures legislate on the elements
contained in the concurrent list e.g. education.
3. Residual powers are powers which the federal government gives to state governments
to make laws on. (Local govt.) see section 9

SCOPE OF CONSTITUTION
Generally the constitution is expected to contain the following essential elements:

1. Political institutions of the state: this can be broken into:

A. Legislature, executive and judiciary
B. Autonomous/ independent bodies e.g. INEC, civil service commission,
judicial service commission
C. Structure, tenure, functions & powers of the arms of the government and
political arms and institutions.
D. Relationship between political institutions: is a political institution one of
separation of powers or fusion of powers.
2. Fundamental human rights: constitutions usually entrench the fundamental human
rights of the citizen in order to protect inalienable rights, protection of these rights that
cannot be denied by your virtue of being a human. These rights are indivisible and are
based on the UDHR of 1948 espoused by the UNO.
3. Franchise: (qualification of office holders) to vote; sharing of powers depending on
the arm of government
4. Sharing of powers: depending on the form of government either unitary or federal
government
5. System or form of government (parliamentary/ presidential)
6. Procedure of amendment (rigid/flexible)
7. Principles and objective of state policy
8. Sharing of powers

FUNCTIONS OF THE CONSTITUTION

1. The constitution the powers of government and its limits

2. It defines the basic organs or arms of government i.e. executive, legislature, the
judiciary
3. The constitution protects and guarantees rights of citizens
4. It confirms sanctity and certainty to rules which guide leadership and followership of
a particular state.
5. Constitution gives complements the due process of law. With the due process of law
there is political stability and orderly political succession
 CONSTITUTIONALISM
Constitutionalism simply put is the principle which states that governmental processes
should be governed by the fundamental laws of the society. What this implies is that
the efficacy of a constitution can only be determined by the degree to which it is
respected or followed.
NOTE: constitutionalism is both a concept which is largely concerned with setting
limits of official behaviour of leaders and followers. The meaning of this is that both
governments. (Led by representatives of the people) and the people themselves should
be subject to the due process of law in their relationship. This is the only way the
collective will of the people and not individual will be upheld. Constitutionalism
emphasizes the rule of law and the protection of citizens from authoritarian rulers that
abuse the rights of citizens.
NOTE: the effectiveness of a constitution can only be determined by the degree to
which it is respected or followed through the instrumentality of constitutionalism.

TYPES OF CONSTITUTION
1. WRITTEN CONSTITUTION: this is the constitution in which it is possible to
point to one document. It is also one which one can point to a combination of
documents and say these are the constitution. The 1999 constitution of the federal
republic of Nigeria as amended is an example of a written constitution so also is
the constitution of the United States of America which started to operate in 1789.
2. UNWRITTEN CONSTITUTION: this is where provisions of a constitutions are
scattered in numerous documents or founded on customary law or conventions.
Such a constitution is an unwritten constitution. Usually, people say that the
constitution in the UK is unwritten and parts of what is used in UK or Britain can
be found in different documents. For example petition of rights in the year1628
and the bill of rights in the year 1688.
3. FLEXIBLE CONSTITUTION: it is a constitution whose provisions are easy to
amend and amendment to these types of constitution is usually as easy as passing
in a law. According to Hood Phillips ‘ unwritten constitutions are in practice
flexible’
4. RIGID CONSTITUTION: a constitution is regarded as rigid where its provisions
are not easy to amend or change. Unlike a flexible constitution a rigid constitution
 cannot be amended by a simple majority vote. Rigid constitution have strict
procedures to be followed for any amendment of any of its provision .example of
a rigid constitution is the 1999 constitution of the republic of Nigeria as amended.
This constitution is not easy to amend. Read section 9(1-4)
5. UNITARY CONSTITUTION: a constitution is said to be unitary where it
provides for a system of government in which its governance is operated by a
single government i.e. under a unitary constitution there is no constitutional
division of powers between the central government and any other subordinate
authority or authorities.
6. FEDERAL CONSTITUTION: this type of constitution provides for division of
governmental powers among the two levels of government i.e. on one hand the
central or federal and state or regional or provinces on the other hand. Under a
federal constitution, the legislative powers are shared between the federal or
central government and the component units. The 1999 constitution of the federal
Republic of Nigeria as amended provides for a list of items contained in the
exclusive legislative list as well as a list number of items contained in the
concurrent legislative list
7. CONFEDERAL CONSTITUTION: under a confederal constitution. The central
or federal government is subordinate to the component units. I.e. states or regions
or provinces is not like the federal constitution in which the federal or central
govt. is stronger than the state govt.
SOURCES OF CONSTITUTIONS
Constitutions are founded on the following:
1. Legislation: rules and principles contained in the ordinary laws of the land
could form part of or be incorporated into the constitution of that country
through legislation. Legislation is simply law. In addition many written
constitutions owe their creation or existence to legislation. E.g. the 1999
constitution of the federal republic of Nigeria as amended came into
existence through legislation. The name of the legislation that created this
constitution is the constitution of the federal republic of Nigeria
( promulgation) decree 1999 also known as decree no. 24 1999
NOTE (PERSONAL): LAW MADE AT THE FEDERAL LEVEL IS
KNOWN AS ACTS
 2. International documents / laws: the provisions of important documents
such as the UN declarations on human rights are contained in the
constitution of many countries so also are laws enacted at intl. conventions
all are useful sources of constitution.
3. Customs and conventions: largely unwritten constitutions derive their
principles from customs and conventions which have been in use for
several years in a country.
4. Judicial precedents or judge-made law or case law : both written and
unwritten constitutions have judicial precedents as rich source. Whenever
there is need to amend a written constitution law reports are available to
assist as a guide in the amendment processes.
5. Written constitution: this is a rich source of subsequent constitution
especially if the subsequent one is a written one. E.g. in Nigeria the 1979
constitution FRN provided rich information for the formulation process of
the 1989 constitution. Furthermore 1989 constitution and the 1979
constitution provided substantial materials for the subsequent 1999
constitution.
6. Intellectual works: the ideas of writers, philosophers, political scientists,
lawyers etc. do provide materials required in the formulation of
constitution. Past historical geographical, political, economic, social &
religious experiences of a people are useful in constitution making.
7. Constitutional conferences: sometimes countries organize conferences
where their constitutions are drafted. Nigeria and Ghana have produced
their constitutions this way.

SEPERATION OF POWERS

According to Toriola Oyewo in his book ‘administrative law in Nigeria’ the doctrine of
separation of powers can be interpreted ‘(a) that the same persons should not form more than
one part of the three organs of government e.g. that ministers should not switch in parliament;
(b) that one organ of government should not control or interfere with the exercise of its
function e.g. that the judiciary should not be responsible to parliament; (c) that one organ of
government should not exercise the function of another e.g. that the ministers should not have
legislative powers’ of the three meanings given by Oyewo the third i.e. ‘(c)’ approximates to
the true meaning of the doctrine of separation of powers as enunciated by the pioneers of the
doctrine. Jean Bodin a French political philosopher was credited as the first to expound the
doctrine of separation of powers through his book ‘the republic’ published in the year 1575.
In the book Bodin emphasized the importance of separating the powers of the executive and
the judiciary for justice to prevail. John Locke also contributed immensely to the growth of
the doctrine by making a distinction between the legislature and the executive. John Locke
wrote that dividing the powers of these organs of govt.will save man from oppression and
tyrannical rule.

NOTE: it is generally acknowledged that the French philosopher Montesquieu in the

publication titled ‘es spirit des Lois’ meaning spirit of laws published in the year 1748
popularized the doctrine.

Montesquieu like other scholars distinguished the three organs of government and submitted
further that the concentration of governmental powers in the same organs or persons will lead
to tyranny and erosion of individual liberty. To avoid this Montesquieu contended that
governmental powers be divided among the three arms of government.

The constitution of the United States America pioneered the institutional expression of the
doctrine of separation of powers. There is a fundamental principle that underlies the doctrine,
it is the principle of checks and balances. This principle enunciates the means by which the
different organs of government check the powers of one another and balance them in such a
way that tyranny, dictatorship, extortism and the violation of human rights are discouraged.

NOTE: IN PRACTICE NO FORM OF GOVERNMENT EXHIBITS A COMPLETE

SEPERATION OF POWERS. FOR INSTANCE UNDER THE PARLIAMENTARY OR
CABINET SYSTEM OF GOVT. THERE IS FUSION RATHER THAN SEPERATION OF
POWERS BETWEEN THE EXECUTIVE AND LEGISLATUE AS MEMBERS OF THE
EXECUTIVE BELONG TO THE LEGISLATURE, HOWEVER UNDER THE
PRESIDENTIAL SYSTEM OF GOVERNMENT THE DOCTRINE OF SEPERATION OF
POWERS IS MORE PRONOUNCED AS MEMBERS OF THE EXECUTIVE DO NOT
BELONG TO THE LEGISLATURE. AS MENTIONED EARLIER, THE CONSTITUTION
OF THE USA PIONEERED THE INSTITUTIONAL EXPRESSION OF THE DOCTRINE
OF SEPERATION OF POWERS.

In attestation to this in the American case of Novell versus United states (1946) 66 supreme
court reports 1073 at page 1079, black J said ‘those who wrote our constitution well knew the
danger inherent in special legislative acts which take away the life, liberty or property of
particular named persons, ‘because the legislature thinks them guilty of conduct which
deserves punishment…….’. Back to Nigeria in the highly celebrated case of Lakanmi versus
attorney general (western state of Nigeria) (1971) U.I.L.R. 201 law reports the supreme court
found the existence in the division of legislative, executive and judicial powers in Nigeria. In
the words of the Supreme Court ‘we must here revert again to the separation of powers which
the learned attorney general himself did not dispute is still the structure of our system of
government. In the absence of anything to the contrary it has to be admitted that the structure
of our constitution is based on the separation of powers- the legislature, the executive and the
judiciary. Our constitution clearly follows the model of the American constitution. In the
distribution of powers the courts are vested with the exclusive rights to determine justifiable
controversies between citizens and the state …………those who wrote our constitution well
knew the danger inherent in special legislative acts which take away the life, liberty or
property of particular named persons because the legislature thinks them guilty of conduct
which deserves punishment. They intended to safeguard the people of this country from
punishment without trail by dully constituted thoughts. This principles are so fundamental
and must be recognized. This principles are so fundamental and must be recognized. It is to
define the powers of the legislature that constitutions are written and the purpose is that such
powers that are left with the legislature be limited and that the remainder be vested in the
courts’. The principle of separation of powers in enshrined in the 1999 constitution of the
federal republic of Nigeria (as amended) for example section 4 (1) gives legislative powers
of the federal republic of Nigeria to the national assembly of Nigeria. See section 4(1).
Section 5 of the same constitution defines set of people.

Section 5 of the 1999 constitution of the FRN (as amended) defines the set of people given
executive powers of the federation. Section 6 talks of the judicial powers of the federation.
Section 6(1) talks of the judicial powers of the federation. It states ‘judicial powers of the
federation shall be vested in the courts to which this section relates, being courts established
for the federation’

FUNCTIONS OF THE LEGISLATURE

Theatrically speaking, the following constitute of the functions of the legislature:

1. Enactment of law: the legislature is charged with the responsibility of making laws. See
section 4(2) of the 1999 constitution FRN.
 In Nigeria, apart from the national assembly charged with the responsibility of
making laws, State House of Assembly in all states of the federation are also charged
with the responsibilities of making laws, as they also legislative assemblies. See
section 4(6) of the 1999 constitution FRN, section 4(7) a, b, c, which defines the
exactitude of the legislative power of The House of Assembly of the state. Also
section 4(8) and 4(9) gives the ‘NO go’ area of the National Assembly and a House of
Assembly
2. The legislature is charged with the responsibility of spending public money by the
executive arm of government. See section 80 (1, 2, 3, 4) of the 1999 constitution FRN.
3. The legislature also exercise some control of the executive arms functions, through the
granting of approval of some appointments made by the executive head. For instance,
under the 1999 constitution of the FRN, the president needs the confirmation of the
upper legislative arm of legislature i.e. the senate before his/her nominees as
ambassador, high commissioner or/and other principal representatives of Nigeria
abroad are appointed see section 171(4) constitution FRN. Also the approval of the
senate is required for the presidents nominees ministers before they can become such on
this, see section 147(1, 2) of the 1999 constitution.
However, section 147(6) states that if the senate fails to give return of approval of
ministerial nominee(s) within twenty-one working days of the receipt of nomination
by the senate, that or those appointments(s) shall be deemed to have been made.
The president also require the confirmation of the senate for his/her appointees into
the following federal commissions and connals:
 Code of conduct bureau
 Council of state
 Federal character commission
 Federal civil service commission
 Federal judicial service commission
 Independent national commission
 National defence council
 National economic council
 National judicial council
 National population council
 National security council
  National police council
 Police service commission
 Revenue mobilization allocation and fiscal commission.

In respect to be above named bodies, see section 154(1) of the 1999 constitution.

At the state level, the 1999 constitution FRN, also requires the state legislature to confirm the
appointment made by the governor of the state into some positions. For instance a governor’s
nominee(s) into the position of commissioners, must have the approval of the state house of
assembly, see section 192 (1, 2) of the 1999 constitution.

For the state commissions as established by section 197(1) of the constitution namely:

1. State civil service commission

2. State independent electoral commission
3. State judicial service commission; the governor of a state requires the approval of the
state legislature for his/her appointee(s) into those listed commissions. The relevant
provision of the constitution that backs this assertion is section 198 of the 1999
constitution FRN
4. Powers of emendation provisions of a constitution are usually vested in the
legislature. In Nigeria, the 1999 constitution vest the power of amending or altering
provisions of that constitution, in the legislature. See section 9(1) of the 1999
constitution FRN
5. The legislature serves as an avenue for articulating public opinion. The legislature
performs this function through passing of resolutions on important national issues.
6. The legislature is usually given the power to conduct investigations of matters it has
power to make law. The 1999 constitution FRN recognizes this function see section
88 (1 a&b, 2 a&b)

THE EXECUTIVE ARM OF GOVERNMENT

The executive arm of govt. carries out the task of executing the laws of the land (constitution,
statues, decree, treaties etc.) those who apply the authoritative rules and policies of a society
are referred to as the political executive.

Officials who perform executive functions, perform two principal functions which are head
of state who performs ceremonial functions only, head of government who performs the role
of supervising of laws and governmental activities.
Under the presidential system of government, the two principal roles are combined in one
person usually referred to as the president and commander in chief of the armed forces.

In parliamentary system of government, the two principal roles are separated. In other words
there’s what may be referred to as dual executives i.e. one person called the head of state
performs ceremonial functions while the other person called the head of government
performs the role of actualization of governmental programmes and implementation of laws.

It is important to note that those heads of state who hold ceremonial powers are known as
titular executives as they are shielded from actual implementation of government policies.

On the other hand the real ‘executives’ are those heads of government who are in charge of
daily executive functions of government.

In the past most head of states were hereditary monarchs as well as absolute monarchs
because executive, legislative and judicial functions were in their hands.

In contemporary times most states with absolute monarchs have replaced them with
constitutional monarchs or limited monarchs.

In Nigeria section 5 of the 1999 constitution establishes and defines the powers of the
executive branch of government.

One of the functions of the executive arm of government in Nigeria as represented by the
president who is the head of the executive arm is to declare war on another country where it
is so imperative. NOTE: the powers of the president here are curtailed or checked by the
provisions of section 5(4) paragraph a and b

However, by virtue of section 5(5), the president may deploy [in consultation with the
National Defence Council (NDC)] members of the armed forces of the federation on a limited
combat duty outside Nigeria if he is satisfied that the national security is under threat or
danger, but he must obtain the consent of the senate within days of actual combat
engagement.

The responsibility of the president to appoint ministers, check section 147 of the 1999
constitution of FRN as amended. Any appointment made by the president post section 147(2)
shall be in accordance with the provision of section 14(3). SEE SECTION 14(3) FOR
QUOTE
It is the duty of the president to negotiate treaties. Such treaties most however be enacted into
law by the national assembly for it to have force of law [section 12(1) 1999 constitution of
the FRN as amended].

The president has the power to assign to the vice president specific responsibilities for any
business of the government of the federation. Thus it is the duty of the president to hold
regular meetings with the vice president and all the ministers of the federation see section
148.

Under section 151 of the constitution, the president does not require the approval of national
assembly before appointing special advisers.

The president has the power of pardon ‘PREROGATIVE OF MERCY’. See section 175 of
the 1999 constitution.

The function of the executive AOG also worthy of notes, is the power given to the attorney
general of the constitution to institute and undertake criminal proceedings as well as
discontinue criminal proceedings of any stage before judgements is delivered. See section
174 of the same constitution.

The power to discontinue criminal proceedings is known as ‘NOLLE PROSEQUI’. The

power is not subject to control by the court. See R versus Comptroller of patents (1899) QB.
(Queens’s bench) 1909 acts 914 in the landmark case of ilori and others, SC (Supreme
Court). 42/82 the Supreme Court held that it is the responsibility of the attorney general to
decide what amounts to public interest.

At the state level, the attorney general of a state has similar power as the Attorney general of
the federation. READ SECTION 211 OF THE SAME CONSTITUTION.

It’s the responsibility of the president to establish federal executive bodies set out in section
153 0f 1999 constitution subject to the approval of the legislature.

Functions of the state executive are virtually similar with the functions of the federal
executive, read section 192-212 of the same 1999 constitution.

In conclusion, one can safely say under the 1999 constitution as amended, the executive arm
of government apart from its administrative functions, also exercises quasi legislative
functions such as initiation of bills, quasi-judicial functions such as issuance of pardon,
negotiation of treaties and discontinuance of criminal proceedings.
JUDICIARY

The primary duty of judiciary is the interpretation of law and application to individual cases.
It is a system of legal interpretation composed of judges, courts and staff. Some of its
functions are;

1. Arbitration of dispute: the judiciary is charged with the responsibility of settling

disputes between individuals and government as well as between government and
government. The judiciary adjudicates over civil cases as well as criminal matters.
2. prevention of unlawful acts through restraining orders like injunctions counts may act
to prevent violation of the law and unlawful action
3. Interpretation of constitution: this is the responsibility of the judiciary, where there is
conflict between the executive & legislature; and such conflict is placed before it.
4. Upholding fundamental rights: judiciary is an instrument for safeguarding of
fundamental human rights found in chapter 4 of the 1999 constitution. Where any of
the rights is about to be violated, section 46 provides the way of seeking redress.
5. Declarative judgements: courts may give declarative judgements to establish the
rights of parties under statute, contracts, will and other documents.

Section 6 of the 1999 constitution FRN as amended establishes judicial powers in Nigeria.
Section 6(5) of the same constitution goes on to give a list of courts in Nigeria.

The Supreme Court is the highest court in Nigeria. It is a federal court. It is also the final
court of appeal in Nigeria. Section 230 (1) of the same constitution established the supreme
court of Nigeria.

The appointment of the chief justice of Nigeria is made by the president on the
recommendation of the national judicial council subject to confirmation of such appointment
by the senate. See section 231(1). To be qualified to hold the post of chief justice of Nigeria
or of a justice of the Supreme Court. A person must be qualified to practice as a legal
practitioner in Nigeria with a minimum of 15 years post call see section 231 (3) .
Section 232 (1) of the same constitution gives the Supreme Court the original jurisdiction in
any dispute between the federation and a state or between states if ‘ and in so far as that
dispute involves any question (whether of law or fact) on which the existence or extent of a
legal right depends’. This has always been the position with the Supreme Court for instance
in the case of governor of Kaduna state versus the president of Nigeria 1981 (NCLR i.e.
Nigeria constitutional law reports780) the court affirmed the original jurisdiction of the
supreme court and stated further that any matter involving the governor of a state and the
president automatically involves the two governments over which they are chief executive
note further that the supreme court shall also have jurisdiction to the exclusion of any other
court of law in Nigeria to hear and determine appeals from the court of appeals in cases
relating to crime and civil issues.

Practice or tutorial questions

1. With the aid of relevant provisions of the constitution of the federal republic of
Nigeria (1999) as amended enumerate the functions of the executive arm of
government
2. What is separation of powers
3. Using relevant provisions of the constitution of the federal republic of Nigeria (1999)
as amended examine the functions of the judiciary.

THE RULE OF LAW

According to a law dictionary the rule of law is ‘the doctrine of English law expanded by
Dicey in law of the constitutions, that all men are equal before the law……. Further, the
fundamental rights of the citizen; the freedom of the person, freedom of speech and
freedom of meeting and association are rooted in the ordinary law and not upon any
special constitutional guarantees’ peter oluyede in his book ‘constitutional law in Nigeria’
wrote that five or more meanings of the rule of law has been suggested according to
oluyede the ‘rule of law means that everything must be done according to law, this means
that all government departments and functionaries must be able to justify their action
according to law. If they are unable to justify such actions any affected person may
always resort to the courts of law for appropriate remedy or remedies’.

To General Olusegun Obasanjo in an article titled ‘the demise of the rule of law in
Nigeria’ under the military; another point of view’ the rule of law is an ambiguous
expression which may mean different things to different minds at different times and in
different circumstances’. Obasanjo’s definition of the rule of law ‘as ambiguous
expression’ should be understood as the definition of a former military officer and
military head of Nigeria ready to justify gross violation of human rights under military
rule on accounts of supposedly ‘vague doctrine’. The doctrine of the rule of law is not
vague. An examination of the doctrine as propounded by early philosophers clearly shows
what the rule of law is. For instance, Bracton is credited to have provided the intellectual
foundation for the development of the doctrine in the 13th century, adopted the theory
held in the middle ages that the world was governed by law, human or divine and that the
king ought to subject himself to God and to the law because the law makes him king.

Similarly an examination of the assertion of Aristotle that the rule of law is preferable to
that of an individual implies man’s willingness to obey valid laws made under a
democratic entity.

A.V.Dicey in his lectures amplified the doctrine of the rule of law, in his lectures first
published in 1885 under the title ‘introduction to study of the law of the constitution’
Dicey stated that the doctrine means ‘the absolute supremacy or predominance of regular
law as opposed to the influence of arbitrary power and excludes the existence of
arbitrariness or prerogative or even of wide discretionary authority……. On the part of
government a man may….. Be punished for the breach of the law but he can be punished
for nothing else’

The rule of law can be defined as the respect of law by individuals, government, the state
and organizations readiness of all to submit to the law which among other things
guarantee fundamental rights of people and are not arbitrary.

The doctrine of the rule of law is universal, a confirmation of this assertion is found in RE
Mohammed Olayori where the learned judge said ‘I am as I know is every member of the
bench and every and right thinking and honest member of our society, against prevailing
conditions of corruption and embezzlement of public funds existing in the country
(Nigeria) today, if we are to have actions guided and restrained in certain ways for the
benefit of the society in general, individual member in particular, then whatever status,
whatever post we hold, we must succumb to the rule of law. The alternative is anarchy
and chaos’

In summary, Dicey’s definition of the rule of law can be said to have constituents:
 1. Absolute supremacy or predominance of regular law as opposed to the influence
of arbitrary power: This principle of legal supremacy states that no man shall be
punished, except for a distinct violation of non-existing law established in the
ordinary legal manner and administered by the ordinary courts of the lands. In
other words, no one can be arrested, detained, or have his goods seized, except for
a distinct violation of a particular law.
2. Equality of all before the law: this comes with exemptions e.g. under the
diplomatic immunity and privileges act, certain categories of diplomats have
immunity against criminal prosecution. That the general rules of the constitution,
(especially provisions of fundamental human rights) are the results of the ordinary
law of the country i.e. human rights are inalienable rights of citizens; and these are
not necessarily derived from the constitution. Therefore, if the constitution is
suspended, citizens can still enjoy their fundamental freedom subject to certain
limitations, for instance as contained in section 35, 36, and 38,39,40,41 of the
constitution of the FRN as amended.

THE RULE OF LAW UNDER MILITARY RULE IN NIGERIA

In January 1966, the Nigerian military overthrow the democratically elected government. The
first thing the military did after the successful coup d’etat was to suspend the constitution
through the promulgation of the constitution (suspension and modification) decree no 1,
1966, the decree placed the military government above the law section 3(1) of that decree
provided that “the federal military government shall have power to make laws for the peace,
order and good government of Nigeria and any part thereof with respect to any matter
whatsoever”

Section 6 of the same decree declared that “no question as to the validity of this or any other
decree or of any edict shall be entertained by any court of law in Nigeria”.

In the Lakamni case the supreme case invalidated ouster clauses in decrees. However in
defiance to the judgement of the Supreme Court the military government threw decree no 28
of 1970 titled supremacy and enforcement of powers decree, nullified the judgement of the
supreme court. By this action the military consolidated its abuse of the doctrine of the rule of
law which is originated through the decree no 1 of 1966.

In 1970, the federal military government promulgated the robbery and firearms (special
provisions) decree. The decree was amended in 1974 and 1977. Two amendment decree no
39 of 1977, the right of a convicted person to appeal to the Supreme Court was abolished.
However, such sentence must be confirmed by the military governor. Capital punishment was
the penalty under the decree. Capital punishment was the penalty under the decree and its
amendments. This was gross violation and negation of the doctrine of the rule of law to deny
an offender a right of appeal to the highest courts in Nigeria for an offense with the death
penalty.

On the 29th of May 1974, the federal military government promulgated the counterfeit
currency (special provisions) decree. The decree provides heavy penalties for violations of its
provisions. Section 18(1) of the decree gave the operative date of the decree as 1st January
1973, thereby ignoring the unsuspended provision of section 22(7) of the 1963 constitution of
the federal republic of Nigeria which prohibited retroactive legislation.

NOTE: NIGERIA’S CURRENT CONSTITUTION I.E. THE 1999 CONSTITUTION

PROHIBITS RETROACTIVE LEGISLATION AS WELL. SECTION 36(8) OF THE 1999
CONSTITUTION AS AMENDED “NO PERSON SHALL BE HELD TO BE GUILTY OF
A CRIMINAL OFFENCE ON ACCOUNT OF ANY ACT OR OMMISSION THAT DID
NOT, AT THE TIME IT TOOK PLACE CONSTITUTE SUCH AN OFFENCE, AND NO
PENALTY SHALL BE IMPOSED FOR ANY CRIMINAL OFFENCE HEAVIER THAN
THE PENALTY IN FORCE AT THE TIME THE OFFENCE WAS COMMITTED”

The exchange control (anti-sabotage) decree of 1977 goes against or rather went against a
cardinal principle of Nigeria’s legal system which states that an accused is presumed innocent
of a criminal offence until he has been found guilty by a court of law. Section 1(3) of the
decree provides that the onus of proving that any payment made or anything done was with
the permission of the appropriate authority, shall be on the person charged