(Photo credit: Justnaija)
The
constitution of the Federal Republic of Nigeria 1999 as amended is the number
one Law in Nigeria. It is thus known as the grundnorm being the Supreme Law of
the Land. The Supremacy of the Constitution is stated in Section 1(1) of the
Constitution. According to the said provision, the constitution is supreme and
binding on every person in the Country.
Section
1(3) on the other hand goes a step further to state that any law that is
inconsistent with the provisions of the Constitution is null and void to the
extent of its inconsistency. The above stated provisions are just like the verses
of Psalm 23 to law students and legal practitioners alike. The supremacy of the
constitution has been given judicial recognition in plethora of cases including
the Supreme Court and this is a well established fact.
The
supremacy of the Constitution simply shows that the Constitution is a very
powerful document in the current regime of the Nigerian Legal system. Within
the lines of the provisions are words that are hardly contested for any reason
whatsoever. While the judiciary is given the task of giving meaning to the
words of the constitution by virtue of Section 6, it is expected that one
should not say or do anything that will shake or threaten the supremacy of the
constitution. But then, what really is the supremacy of the constitution? In
other words, what does it really mean? Does the supremacy of the constitution
also mean its perfection?
This
question is answered on the negative and this will be canvassed on three
standpoints. (1) Grammatical/Typographical Error (2) Vagueness in intention (3)
Lacunas
·
Grammatical/Typographical
Errors: Grammatical and typographical errors are two kinds
of errors that can be easily recognized in writings. Grammatical errors are
better ignored in writing (typing) than typographical errors (typing), at least
for those who are masters of the Law of Concord. Legal practitioners are
expected to be skilled in the elementary skills of drafting and sound use of
grammar whilst drafting or doing any other legal writings. Thus the likelihood
for the court to frown at grammatical errors made by legal practitioners in
write ups is high owing to the fact that the court holds them in high esteem.
Thus the Supreme Court in commenting on a letter written by a legal
practitioner in the case of EIB Building Society Ltd v. Adebayo (2004) All FWLR
(Pt 193) Pg 228 stated as follows: “finally
(pg 366) remember that you will be judged by the letter you write. Although
clients do not know whether you know the law right, they will know whether you
spelt their name right. And many will know whether you made grammatical errors.
If you want to be known as a competent lawyer, then write a good letter”
Typographical
errors on the other hand ought not to be made but the fact remains that they
are inevitable in some cases, for even an eagle eye may not be able to avoid it
in some cases. This is why even drafted processes in court are allowed to be
amended when there are issues of typographical errors. Whether or not there is
a justification for typographical errors, typographical errors show that
imperfection looms in writing. The Constitution itself is not exempted from
typographical errors and an example will be given to that effect.
Before
the National Assembly was/is AN ACT TO ALTER THE FIRST SCHEDULE TO SECTION 3 OF
THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 TO REFLECT THE PROPER
NAME OF SHONGOM LOCAL GOVERNMENT AREA OF GOMBE STATE. The explanatory
memorandum of the Bill states that the Bill seeks to alter the Constitution of
the Federal Republic of Nigeria 1999 (as amended) to reflect the right spelling
of the name ‘Shongom’ in the
Constitution of the Federal Republic of Nigeria. The bill states that the First
Schedule to Section 3 of the Principal Act is altered by deleting Alteration of
section 3 in Part 1 (STATES OF THE FEDERATION) the name "Shomgom" appearing under Local
Government Areas of Gombe STETE and
inserting the name "Shongom'"
instead thereof.
This
bills shows that there was a typographical error in the Constitution itself
which warranted the need for an amended. However, funny enough, the Bill itself
that was intended to amend the Constitution was not also free from Error as the word “STETE” was typed in place of “STATE”.
Errors
in the Constitution are a universal thing. The American Constitution itself has
faced similar fate of typographical and grammatical errors. This can be seen in
Henry Bain’s Errors in the Constitution-Typographical and Congressional, Fall
2012 Vol. 44, No. 2, where cases like Jacob Shallus’ parchment’s errors and
other typographical and grammatical were discussed.
·
Lacuna:
Lacuna is one thing that is inevitable in Law. Laws made at a given time may
not cover or deal with every situation and circumstance at a time. This
reconciles the dynamic nature of the law and why laws are amended to suit every
given circumstance that presents itself.
Judicial activism operates to fill in the gap. This open texture can be
an intentional indeterminacy of the Law or also an unintentional indeterminacy
of the Law. While an intentional indeterminacy can narrowly escape the
criticism of the imperfection of the Law, unintentional indeterminacy may not
and this is where the 1999 Constitution has missed it. The famous doctrine of necessity invoked to bring
Goodluck Jonathan into power is an example of a space created by the
Constitution because there was no provision in the Constitution empowering the
National Assembly to pass the resolution to give power to then Vice President
to Act fully as president. Most recently
is the case of the death of Prince Audu Abubakar where he died before being declared
winner, though it was obvious he would win despite the fact that the election
was declared inconclusive. The closest section was section 181 of the
Constitution that deals with the death of an already declared winner before
taking the oath of office. This caused controversy in the legal community as
some argued that the second to the highest in the poll be declared winner.
Others argued that a fresh election be conducted, while others also argue that
the second in the APC primaries be allowed to step in believing that the votes
go to the political party. This was a clear case of a constitutional lacuna as
the constitution was silent on such a case.
It was this lacuna that led to the Bill known as a
Bill for An Act to amend the provision of Sections
136 and 181 of the Constitution of
the Federal Republic of Nigeria (AMENDED) 1999 and for related matters sponsored
by Hon. Asabe Vilita Bashir.
According to the Bill, Sections
136 and 181 of The Principal Act are altered to include new subsections (3) to
read as follows:
136(3) if a presidential candidate dies
during an election, or is unable for any reason whatsoever to conclude the
election before declaration of result, the person nominated as his running mate
and vice presidential candidate shall continue with the election as
presidential candidate and if elected, shall after being sworn in as president
nominate a new vice president who shall be appointed by the new president with
the approval by a simple majority of the National Assembly at a joint sitting.
181(3) if a governorship candidate dies
during an election, or is unable for any reason whatsoever to conclude the
election before declaration of result, the person nominated as his running mate
and deputy governorship candidate shall continue with the election as
governorship candidate and if elected, shall after being sworn in as governor
nominate a new deputy governor who shall be appointed by the new governor with
the approval by a simple majority of the House of Assembly.
·
Vagueness
of Intention: Beyond the fact that Laws sometimes
are enacted contradicting themselves, Laws can also be drafted in such a way
that the initial intention in the making of the Law itself may end up being
misplaced. This is what may amount to vagueness of intention as the intention
of the law makers may not be clear, hence the help of the mischief cannon of
interpretation in solving such issues. The Constitution of Nigeria is not exempted
from such vagueness and an example shall be given.
To
make this argument clearer, I shall reproduce an argument I made in one of my
article, THE RIGHT TO FREEDOM OF ASSOCIATION AND THE NBA – A REJOINDER, which I
made as a reply to the learned writer, Seun Lari Williams. In one part of the
article, whilst answering the question: ARE
ALL EXCEPTIONS TO THE GENERAL PROVISION IN A CONSTITUTION FOUND EXPRESSLY IN
THE CONSTITUTION? I brought out what I will call a good display of
vagueness of intention. Below is the argument:
“The answer is no. By this, it
means that the constitution may not expressly state an exception to the core,
but create a direction. For instance, S. 34 of the constitution which deals
with the right to dignity of human person creates exceptions to the part which
deals with forced and compulsory labour. While S. 34 (2) (a) – (d) make
reference to exceptions expressly provided in the constitution, S. 34 (2) (e)
(ii) (iii) make reference to an Act of National Assembly that may be enacted to
the effect of the exception created for ‘any
labour or service that forms part of such compulsory national service in the
armed forces of the federation and education and training of citizens of
Nigeria.’ Here it can be seen that the exceptions stated above are not
expressly provided in the constitution but however mentioned. This way, the
spirit of the exception can be found in another Law expressly, although derived
from the constitution.
But then, can there be exceptions
to the general provisions not expressly stated in the constitution itself? I
won’t outrightly say ‘yes’. Perhaps, the answer may lie in the interpretation
that can be given by the court to certain provisions that seem not to have
exceptions. What are the spirits of their letters?
Let us go on a little legal voyage.
S. 34 of the Constitution speaks of the right to dignity of the Human person.
The said right is divided into three phases. Viz: (a) no person shall be
subjected to torture or to inhuman degrading treatment; (b) no person shall be
held in slavery or servitude and (c) no person shall be required to perform
forced or compulsory labour.
While Part C of the said right is
provided with exceptions in S. 34 (2) (a) – (e), part A and B are without any
exceptions. For Part b, it is quite understandable as there is none, what then
would be the legal argument of Part A with respect to ‘subjection to torture’?
Can a Boxer who gets himself
punched to stupor by another boxer turn around to say that he or she was
subjected to torture and as such his or her right to dignity has been breached?
Under the Tort Law remedy of Battery, the said hypothetical Act would amount to
the defence of ‘Consent’. But can the aggrieved boxer who consented turn around
and argue in court that his right is breached because the constitution did not
create an exception known as ‘consent’ in Section 34 or any other section? That
is left for the court to decide as to what really is the interpretation of the
right.”
The
argument above explains it all. What really is the intention of the Law makers
when drafting that part of the constitution? Did the Law makers draft the Law
in such a way that there exists no exception on that part of the Law? I shall
address that aspect of the Law in another article where I intend reviewing an
argument put forward by the learned Silk, Femi Falana SAN on the expected execution
of Reverend King.
But
before then, I am of the opinion that this and maybe one or two areas of the
Constitution represent such problem of vagueness of intention.
In
all, it is this writer’s view that the Supremacy of the Constitution should not
defeat our sense of reasoning. For instance, I gave an example of a LGA that
was misspelled in the constitution. Though in the wording of the Constitution,
it is the wrong name that is recorded, but in reality, we all know the right
spelling. Do we now say that the wrong spelling suffices for the sake of Constitutional
Supremacy even when we know that it was an error?
Also,
the gospel of the ‘unconstitutionality
of action’ has made many commenters of the Constitution to refuse acting
outside the constitution. By this, I mean, zealous actors at all time wish to
be guided by the Constitution, thus doing anything not mentioned by the
constitution has been argued to be unconstitutional. In my opinion, ‘acting outside the constitution is not
unconstitutional, but acting contrary is’. In this context I mean, doing
anything or act when the constitution is silent about it, is not
unconstitutional but acting contrary to what the constitution has already said.
Thus,
ministers and commissioners in the temple and altar of justice must be bold to
argue and create new principles, break barriers through judicial activism and
as well take other extra legal actions when the need necessitates to cover-up
lacunas, pending formal enactments; for the supremacy of the Constitution is
never its perfection.
Ebi Robert
Email: [email protected]