The 1999 Constitution of the Federal Republic of Nigeria as amended in 2011 is the pillar holding together the foundations of our nascent democracy. Firmly built with bricks of undivided rule of law and unwavering checks and balances, we have survived two score and a decade. The legacy of those that has gone before and the faith of those that are struggling with us, are the testimonies we share of the goodness and blessedness of the supremacy of our constitution. Through the hollows of colonial rule, to the darkest military era, we regained confidence with the triumphant entrance of our 1999 democracy day. Bloodshed and mass funerals were the properly force that gave us the will to firmly and solemnly resolve to live in unity and harmony as one indivisible and indissoluble sovereign nation under God. This will power provided for us a constitution for the purpose of promoting the good government and welfare of all persons in our country on the principles of freedom, equality, and justice, and for the purpose of consolidating the unity of our people. This was not by chance; it was a conscious premeditated effort. It was not to show greed for self-governance but to prove unity in diversity. It was not to prove the might of our patriotic men but to establish the intelligence dancing at the centre square of their mind.
Section 1 of the instrument that ensures the uniformity of our due process unequivocally declared that:
1. This constitution is supreme and its provisions shall have binding force on all authorities and person throughout the federal Republic of Nigeria.
2. The Federal Republic of Nigeria shall not be governed, nor shall any person or group of person 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 provision of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.
If these were a song, I would have with applause, exclaimed “What a beautiful resolution”! But this is a statement by men, for men and to men. Like Fiyong said “human nature is such that incompletion is all that remains with us.” Can we say with certainty that this statement speaks the truth or itself without any hindrance whatsoever? Surely that would amount to selling the petrol before even refining the mole. Subsection 1 states that the constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic off Nigeria. It would appear that this statement merely favours the illegality of the rich as against the aspiration of the poor. The economic class that determines the monopolistic happenings in our economy surely are not within the realm of our constitution. One would wonder if the constitution can ever compel the market factor and the riches of Dangote’s account. How supreme is the constitution as regard budget paddling and why is the constitution yet to invite Otedola and Faruck Lawan to its binding force. If not that we quote this subsection to show our strong rhetoric, shouldn’t we start enforcing the sections that would provide a remedy against this strong economic holocaust of our time? Permit me to re-draft subsection 1 of this section; “this constitution is supreme and its provisions shall have binding force on all poor and indigent Nigerians with the particular exception of the bourgeois living in the economic places.”
Subsection 2 provides that the Federal Republic of Nigeria shall not be governed, nor shall any person or group of person take control of the government of Nigeria or any part thereof, except in accordance with the provision of this constitution.
Again, this provision is a toothless bulldog, a paper tiger that commands no obligation or revenue whatsoever; a mere bingo that can back but can’t bite. It has been suggested that at best what this section does is to erode the sanctity of the supremacy of the constitution. What is the might of this subsection when the coup plotters of yesteryears are celebrated in our national television on a daily basis? One would wonder what this subsection has done to the cabals that took over the control of our government when Alhaji Shehu MusaYar-Adua was looked for but not seen. What about the economic moguls that takes over the economic government of our nation on a daily basis in terrorem and without recourse to the sufferings of the vast majority.
I make bold to submit that subsection 2 should be expunged from our supreme book and thrown into the waste basket of local restaurants.Subsection 3 has a unique purpose in terms of declaring as void any other law that is inconsistent with the provision of the constitution and ensuring that the constitution shall prevail and that other law shall to the extent of the inconsistency be void. This provision is wide enough to cover every law which has been validly passed by the legislature or any Act which tends to threaten the sanctity of the constitution. The constitution is not only supreme when another law conflicts with it, but also when another law seeks to compete with it in any area already covered by the it. Ishola v. Ajiboye (1994) 7-8 SCNJ (pt. 1) 1 at 52.
No doubt the constitution is the grundnorm, the fons et origo, the fundamental law before which all authorities and persons must say Amen. The supremacy of the constitution over all laws could be tested as regards its relationship with case law. Case laws are laws made by judges. They are not laws enacted by way of the usual legislative process but laws deriving their sources from direct pronouncements by the courts. These decisions form a binding precedent that must be followed by all other courts down the ladder. It is however the ratio decidendi, that are binding on lower courts and not the obiter dictum. However it has been held that an obiter of the Supreme Court forms binding precedents on other courts down the ladder. It is yet to be tested and approved within the rubrics of litigations.
What is more, how can we assert that the constitution is over and above all other laws when it is the courts that add flesh to the skeletal nature of the constitution? The constitution relies on the courts to give it voice. The decision of the courts binds the constitution. Those decisions teach and dictate for the constitution the way to go when approached with certain issues. The courts bind the constitution. To all intent and purpose the decision of the courts especially of the Supreme Court ranks above the constitutions. No wonder Oliver Wendell Holmes asserted that “the prophesies of what the court will do in fact and nothing more pretentious is what I mean as the law.”
Conclusively, the whole of Section 1 of our esteemed and most treasured document is nothing but having the voice of Jacob and the skin of Esua. It is a lie unto itself and a tool in the hands of the economically dominant class in our country.
Long live Section 1 (as far as it within the reach of the common man)
Long live the 1999 Constitution of the Federal Republic of Nigeria
Long live the Federal Republic of Nigeria
ARTICLE BY: EJOKPA MARK
Mobile Number: 07030308812