Ibrahim Barkindo

Introduction to Nigerian Constitutional Law: An Outline
Course material for Diploma One students, Centre for Islamic Legal Studies, Institute of Administration, Ahmadu Bello University, Zaria.

Ibrahim Barkindo 2 Introduction to Nigerian Constitutional Law: An Outline These notes are intended as outlines on introductory aspects of the Nigerian Constitutional Law. The notes shall be read in conjunction with the Constitution of the Federal Republic of Nigeria, 1999. The notes are intended only to guide and provide anecdotes on the constitution for diploma students; they are intended to be simple and easy to use. However, they can only be used alongside the constitution; therefore, its user must have a copy of the CFRN 1999. The layout of the outline is in charts and tables as much as possible, because charts provide logical presentation and correlation of things.

1. Introduction: Humans are social animals and nobody lives in isolation, people must come and live together as a necessity for survival. This social grouping or interaction will necessitate needs for food, shelter and other needs (economy); as resources are scarce, miscreants or deviant behaviour may be found in the community (crime), others may also try to control the social system or resources in ways that may not be agreeable to the rest, hence the need for leadership in the community and governance. 2. Types of Governments: Governments may be elected by the people and the people may have representatives to protect their interests, this is called a democracy. Another type may be a monarchy where a king or queen is the leader or head, while others may be a dictatorship where strong men (military or otherwise) take over power by force and rule by their whims and caprices. We may still have governments based on religion (theocracy), and so on. A democratic government is preferred the world over. It is a situation where the head of government and certain government heads (governors) and the legislature are all elected for a fixed term of office and who are answerable to the people and may be impeached or recalled by the people. In a democracy, a citizen has rights protected by the law and the legislature acts as check and balance to the executive. A democratic government may take various forms, it may be a parliamentary system where the parliament is supreme and the head of government is the prime minister, it may likewise be a Federal system like Nigeria where the government is in three tiers or at least two, federal and state; or may be a unitary system where a country is governed on a single governmental basis, the states will not have powers; a ready example is Britain.

Ibrahim Barkindo 3 Introduction to Nigerian Constitutional Law: An Outline

3. Nature and Definition of Constitution and Constitutional Law: Constitutional law is the law that sets up and explains the organs of government with its functions, powers and duties. This law lays down the principles, rules, laws and in some cases conventions and customs in accordance with which a country is governed and by which its citizens are bound. A constitution is therefore a document that sets up the broad organs, tiers and functions of government and spells out their functions, duties and powers. In some cases, it may be more than one document that defines an d sets up these issues, hence, it will be said that the constitution is made up of more than one document, or it is unwritten. 4. Types of Constitutions: Constitutions may be written or unwritten. The Nigerian constitution is an example of a written constitution while the British constitution is the example of an unwritten constitution, because that of Britain is made up of various documents (Acts) and conventions (constitutional and political customs). A constitution may also be rigid or flexible. A rigid constitution is one whose amendment procedure is strict, like the Nigerian constitution while a flexible constitution is one whose amendment procedure is not strict. 5. Contents of a Constitution: A constitution, whether written or unwritten, must contain certain elements, they are as follows: a) Territory: the constitution must with clarity define the boundary of the state it covers. In the 1999 CFRN, Ss.2 (2), 3, 8, 297 and the First Schedule talks about the territory. Nigeria shall be a federation consisting of States and a Federal Capital Territory. Section 3 names the states of the federation which are 36 and referred to the federal capital territory which is defined in part II of the First Schedule to the Constitution. S.3 (6) states that there shall be 768 LGAs in Nigeria which are shown in Part 1 of the first Schedule to the constitution and 6 Area Councils of the FCT as well. b) Population: those permanently living within the state must be defined because they enjoy certain rights.

Ibrahim Barkindo 4 Introduction to Nigerian Constitutional Law: An Outline

Chapter III of the Constitution provides for citizenship to the country which is of three types: by birth, by registration and by naturalization. It also allows for dual citizenship. c) Government: the type of government must be defined, whether it is elective or otherwise. The government is a federal government and a republic. It is of three tiers; federal, state and local governments. It has three arms; legislative, executive and judicial. Each organ has functions and powers at all levels. There is no judiciary at LG level, that of the state serve the LGs. Both the legislative and executive positions are elective; judicial positions are not elective. d) Sovereignty: total independence of the government must be contained in every constitution. Sovereignty of the country is provided in S. 2(1) and the supremacy of the constitution is in S.1. The armed forces of the country are established to defend the sovereignty and territorial integrity of the nation. 6. Basic Constitutional Concepts: a) Constitutional supremacy: this means that the constitution is supreme as it is the supreme law of the land; all other laws derive their authenticity and validity from it and must be in conformity with it. The constitution binds all persons and authorities throughout Nigeria. The country Should any law be incompatible with it (contradictory, inconsistent, in conflict with), the constitution or its provisions shall have the upper hand and it stays, the other law shall be ineffective or null and void, even if not the entire law, at least the part that conflicts with the constitution. S. 1 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 any of the provisions of this Constitution, this Constitution shall

Ibrahim Barkindo 5 Introduction to Nigerian Constitutional Law: An Outline

prevail, and that other law shall to the extent of the inconsistency be void. (emphasis added) b) Separation of powers: this concept means that the powers and functions of government should not be concentrated in one sector, so that the one enacting law should not be the interpreter as well as executor of the judgments. If this is so, the citizens will be at jeopardy. Therefore, power must be separated and the government must have arms, legislative, executive and judiciary. c) Doctrine of covering the field: legislative powers in Nigeria are vested in the National Assembly and the States Houses of Assembly. The national Assembly shall make laws regarding items within the Exclusive Legislative List in Part I of the Second Schedule. States Houses of Assembly may make laws regarding any item in the Concurrent Legislative List which is in Part II of the Second Schedule or on any matter not included in the Exclusive Legislative List (Residual List). Additionally, the National Assembly may make laws regarding any matter within the Concurrent Legislative List. Should the federal legislature (National Assembly) enact a Law on a matter in the concurrent list, which is comprehensive on the subject matter, then it is deemed to have covered the whole field and there is no need for a state legislature (House of Assembly) to enact another law on it, because if it does, the provisions of the national assembly carry more weight and if there is a conflict, it is the provisions of the National Assembly that will prevail. d) Fundamental Objectives and Directive Principles of State Policy: this is the philosophy by which the government. These are laid down to be pursued in the efforts of the nation to realise the national ideals. This is now in Chapter II and it is subdivided into obligations of the government, political objectives, economic, social, educational, foreign policy objectives and the rest. It also includes the duties of a citizen. e) Human Rights: these rights are considered fundamental that every human being should enjoy them and the state enjoined to protect and promote them. They are right to life, right to dignity of human person, right to personal liberty, right to fair hearing, right to private and family

Ibrahim Barkindo 6 Introduction to Nigerian Constitutional Law: An Outline

life, right to freedom of religion, etc. They are provided for under Chapter IV. f) The Rule of Law: this doctrine means that everything should be done in accordance with the law; all government departments and functionaries must be able to justify their actions according to law. If they are unable to justify such actions, any affected person may resort to court and seek remedy. It also means Equality of before the Law. It also means that government should be conducted within a framework of recognized rules and principles which restrict discretionary power.

7. Powers of Government: The powers of the government of Nigeria are divided into the three organs across the tiers of government. Ss. 4, 5, 6 and 7. The chart below explains it:
SN 1. 2. 3. ORGAN OF GOV’T LEGISLATIVE EXECUTIVE JUDICIARY TIER OF GOVEERNMENT FEDERAL STATE NATIONAL STATE HOUSE ASSEMBLY OF ASSEMBLY PRESIDENT GOVERNOR SC/CA/FHC HC/SCA/CCA

LOCAL LG LEGISLATIVE COUNCIL LG CHAIRMAN

a) Legislative powers: legislative powers are provided in S.4, Chapter V (The Legislature, covering Ss.47-129) and the Second Schedule. The federal legislature is the national Assembly which is in two chambers, the senate and the House of Representatives, the Senate is headed by a president while the House of Representatives is headed by a speaker. The tenure of the national assembly is 4 years. The functions of the legislature are to make laws for the peace, order and good governance for Nigeria, a state or any part thereof. The national assembly may make laws regarding matters in the exclusive legislative list or the concurrent list while a state house of assembly may make laws regarding matters within the concurrent list or the residual list. The legislatures also control public funds and serve as checks and balances to the executive. b) Executive powers: executive powers are provided in S.5, Chapter VI (the Executive, covering Ss. 130-229). The federal executive powers are vested in the president who shall exercise his powers either

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directly or through ministers in his cabinet. The executive powers of a state shall be exercised by the governor who shall exercise them personally or through his commissioners. The president and the governor are elected into office for a term of 4 years and are eligible for a re-election. Certain executive bodies have been established by the constitution, they established in S.153 for the federation and S.197 for the state. The Third Schedule provides for the federal, state and FCT executive bodies. Offices of vice president and deputy governor are also provided in the constitution and the extent of their powers explained. The executive powers shall extend to the execution and maintenance of this constitution, all laws made in the country. c) Judicial powers: (S.6, Chapter VII; Sixth Schedule-Election Tribunal) judicial powers are vested in courts established by the constitution or by any Act o the National Assembly or any Law of the state House of Assembly. The constitution established 9 courts namely, the Supreme Court of Nigeria, the Court of Appeal, the Federal High Court, the High Court of the FCT, the Sharia Court of Appeal of the FCT, the Customary Court of Appeal of the FCT, the High Court of a State, the Sharia Court of Appeal of a State, and the Customary Court of Appeal of a State. These shall be the only Superior courts of record. The judicial powers shall extend to all the inherent powers of a court of law; shall extend to all matters between persons or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to civil rights and obligations of that person. The judicial powers shall not however extend to any issue regarding chapter II (except otherwise provided by the constitution); it shall likewise not extend to any issue regarding the validity of any decree made on or after 15th January, 1966. 8. Introduction to the CFRN 1999 The 1999 CFRN is made up of 320 sections divided into 8 chapters; it also has seven schedules. The constitution is promulgated by virtue of the Constitution of the Federal Republic of Nigeria (Promulgation) Decree No. 24 of 1999 which came into force on 5th may, 1999. The constitution is gazetted in no.27, Vol. 86

Ibrahim Barkindo 8 Introduction to Nigerian Constitutional Law: An Outline

of the Federal Republic of Nigeria Official Gazette of 5th May, 1999; the constitution is published as a supplement to the gazette. Below is the abridged content of the constitution:
S/N 1. 2. CHAPTER CHAPTER I CHAPTER II THEME GENERAL PROVISIONS FUNDAMENTAL OBJECTIVES AND DIRECTIVE PRINCIPLES OF STATE POLICY CITIZENSHIP FUNDAMENTAL RIGHTS THE LEGISLATURE THE EXECUTIVE THE JUDICATURE FEDERAL CAPITAL TERRITORY, ABUJA AND GENERAL SUPPLEMENTARY PROVISIONS SECTIONS 1-12 13-24

3. 4. 5. 6. 7. 8.

CHAPTER III CHAPTER IV CHAPTER V CHAPTER VI CHAPTER VII CHAPTER VIII

25-32 33-46 47-129 130-229 230-296 297-320

Schedules to the Constitution: SN 1. SCHEDULE FIRST SCHEDULE THEME 1. STATES OF THE FEDERATION 2. DEFINITION AND AREA COUNCILS OF THE F.C.T. ABUJA 1. EXCLUSIVE LEGISLATIVE LIST 2. CONCURRENT LEGISLATIVE LIST 3. SUPPLEMENTAL AND INTERPRETATION 1. FEDERAL EXECUTIVE BODIES 2. STATE EXECUTIVE BODIES 3. F.C.T. EXECUTIVE BODY FUNCTIONS OF A LOCAL GOVERNMENT COUNCIL NO. OF SECTIONS N.A.

2.

SECOND SCHEDULE

68 item; 30 items and 2 sections

3.

THIRD SCHEDULE

31, 5 and 2

4. 5.

FOURTH SCHEDULE FIFTH SCHEDULE

2

1. CODE OF CONDUCT FOR PUBLIC 19 and 16 OFFICERS 2. PUBLIC OFFICERS FOR THE PUSPOSES OF CODE OF CONDUCT

6. 7.

SIXTH SCHEDULE SEVENTH SCHEDULE

ELECTION TRIBUNALS OATHS

2 N.A.

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