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CHAPTER ONE

GENERAL INTRODUCTION

Man is endowed with a modicum of freedom. No man can be subjected to the political hegemony or power of another without his own consent.[1] However, the realities of communalism[2] and social interactions among men demand a leader or ruler to whom the inhabitants of a political society should abdicate their right to freedom. The ruler exercises this power on behalf of the people. Prior to this period, it was a state of war of all against all aptly captured by the Latin maxim bellum omnium, contra omnes.[3]

Government was evolved to eliminate these enraging political skirmishes. Constitution was enacted to effectively run the government. This is usually referred to in jurisprudence as the first constitution. The question is why will one have to respect the first constitution as a binding norm? The answer is that the fathers of first constitution were empowered by God.[4] With this empowerment the first constitution was made and it formed the basis of subsequent constitutions.

With the Constitution in place, constitutionalism was ushered in with its concomitant features and attributes. Power which is the ability to make someone to conform to your desire,[5] was consequently separated. This implies that the three fundamental powers of government cannot be fused in one person. Also, the three arms of government that wield these powers cannot usurp the power already given to another. Therefore, it is proper to posit that true constitutionalism has never meant government enfeebled by divisions within itself; it has meant government limited by law.[6] The implication of this is that the governmental powers must be exercised in compliance with constitutional demands.

Interestingly too, the constitution can never give a right with one hand and take it away with another hand. In Elelu-Habeeb & Anor. v. The Hon. Attorney General of the Federation & Ors.,[7] the Supreme Court held that the constitution will never give a right with one hand and remove such right with another hand. The constitution and the lawmakers are in favour of running the affairs of the society smoothly.[8]

In Nigeria, the Constitution of the Federal Republic of Nigeria 1999 ushered in a democratic regime on 29th May 1999. An attempt to amend the said constitution was thwarted during the Obasanjo’s regime because of the tacit plan to introduce the 3rd in office term for the President. However, there was a breakthrough in 2011 when the Constitution was amended three times. This threw up the controversy of when the 1999 Constitution as amended in 2011 became operative. This controversy then formed a microcosm of the issues raised in Hope Democratic Party v. Peter Obi & Ors.[9] The issue in the case was whether the Supreme Court had jurisdiction to entertain the appeal as the subject matter of the appeal emanated from an election which was conducted before the amendment to the 1999 Constitution and the hearing in election petitions terminates at the Court of Appeal by virtue of section 246(3) of the 1999 Constitution before the amendment? In resolving this issue, the Supreme Court pointed out that it is clear that the provisions of the 1999 Constitution as amended came into force on the 10th day of January, 2011 when the President of the Federal Republic of Nigeria signed same and not on any other date, whether stated on the body of the document or elsewhere as there is no evidence that the President withheld his assent to the bill. The Supreme Court explained further that to hold that the commencement date of the 1999 Constitution as amended is the 29th day of November 2010 which is a date prior to the signing of the Bill into an Act would be very absurd and contrary to law.[10] Definitely, such decision would have implied that the 1999 Constitution as amended is made to apply retrospectively by implication which is equally frowned upon by law.[11]

Nigeria is the most populous Black Country in the world. This has earned Nigeria a pre-eminent place in the comity of States. Nigeria is the acclaimed giant of Africa. Unfortunately, Nigeria has a very checkered constitutional evolution. A number of constitutions have been enacted for Nigeria and yet Nigeria cannot even presently boast of a holistic constitution that is made by specifically elected and mandated people of Nigeria. What is worse, Nigeria has a constitution without constitutionalism. Nigerian leaders inherited the culture of political impunity and lawlessness from the military era.  This has now posed a serious challenge to democratic governance in Nigeria.

The research questions for this study are as follows:

1. Is the evolution of democratic governance in Nigeria a product of constitutionalism?
2. Is the rule of law the hallmark of democratic governance in Nigeria?
3. Are there viable components and dynamics of constitutionalism in Nigeria?
4. Are there features of constitutionalism and challenges of democratic governance in Nigeria?
   1. Scope of the Work

This research reviews the evolution of democratic governance in Nigeria. Consequently, the study of the evolution of democratic governance in Nigeria is confined within the first to the eighth Republic. It further ascertains the question whether the rule of law is the hallmark of democratic governance in Nigeria. The viability of components and dynamics of constitutionalism takes the centre stage since the success or failure of democratic governance in Nigeria is anchored on these indices. Finally, factors that militate against constitutionalism receive serial and specific treatment. All in all, this research is all about constitutionalism in the body politics of Nigeria from inception to the present politico-legal dispensation. The research also charts a roadmap on ways to deepen democracy and limited government in Nigeria.

• Aims and Objectives of the Study

The aim of this study is to appraise constitutionalism in Nigeria with the intent to highlight the challenges of democratic governance in the 21st century. The work will show that Nigeria’s democratic governance is still wearing the toga of militocracy though it is being operated by civilians. The objectives of the study will address the research questions and include:

1. To lay bare the causes of this deficiency in Nigeria’s democratic experience.

2. To ascertain if the tide of constitutionalism through democratic governance in Nigeria has been what the military carved it to be.

4. To ascertain the viable components and dynamics of constitutionalism in Nigeria.         

3. To recommend a road map towards effective constitutionalism and true democratic     governance.

• Significance of the Study

The study identified the basic attributes of true democratic governance. The importance of an effective constitution to the successful operation of constitutionalism was underscored by the study. The study is significant because it exposed the various pitfalls of democratic governance in Nigeria. The challenges facing democratic governance in Nigeria were shown to be mostly from constitutional oscillations and weak constitutionalism. Most importantly, the study concludes that Nigeria, though under democratic governance, is yet to develop democratic cultures that can effectively checkmate the excesses of governmental operations. The work is significant for the executive and legislative arms of government because it will guide them to achieve the essence of democratic governance in Nigeria.

The methodology adopted is descriptive, analytical and doctrinal.  It is descriptive and analytical because the study describes and analyses the state of the law in Nigeria vis-à-vis the area of focus in this work. It also examines relevant doctrines to the subject matter of this study. The study placed huge reliance on the following primary source materials: participant observations, oral interviews and comments of legal practitioners. The secondary source materials used were: case law, textbooks, journal articles, conference papers, the internet and other legal literatures.  The data will be analysed through deductive reasoning that will be based on statutes and case law.

Since independence Nigeria has laboured under the huge burden of European models of governance. Many scholars have written on the democratisation of Nigeria and the need to ensure the supremacy of the constitution. However, it appears that none has actually examined the challenge of democracy in the light of the prevailing constitutional demands on governance. Nwabueze explains that a constitution, having the force of law but containing admixture of justiciable and non-justiciable commands raised problems of how to identify one from the other and calls for an act of interpretation by the court independent of the assertion of political department.[12] Anozie[13] states that the constitution of a country is enacted for the purpose of establishing a particular system of government and also for prescribing limitation on organs of government so established.[14] Anozie rationalises on why countries adopt a constitution thus:

The main reason is that most times people will want to secure and protect their fundamental rights and freedom from the state power or the arrangement of the government amongst the people may be such that the minority may like to protect their specific interest against the rule of majority and this can be best done when these rules are articulated in a written form in a constitution so that the government may not in the exercise of its powers act contrary to the dictates of the constitution and where it even does so, the governmental act could be successfully challenged in the appropriate quarters.[15]

This elucidation by Anozie appropriately captures the motivation behind every constitution. It is to ensure that there are standards that must be followed in the governance of a country. Nwabueze concludes that no society in which morality and religion are absent can ever attain and maintain liberty, democracy and justice. Liberty, democracy and justice are actually morality-based values.[16] Obedience to the constitution is the starting point of any discussion on the rule of law as propounded by Dicey. Although Sagay has argued that the rule of law is no longer limited to Dicey’s narrow definition of equality before the law or trial by one’s peers in the ordinary courts by the ordinary laws.[17]

Ladan[18] attributes Nigeria’s constitutional problem to accident of history. He explains that the Nigerian legal system follows the English common law system whose conception of man is that of a reasonable being, with the rights and duties of such a being. Ladan reveals that Nigeria is going through an accelerated process of economic and socio-political changes against the background of a traditional culture characterized by a subsistence economy. He concludes that:

The on-going socio-political and economic changes are inevitable but what cannot be pre-determined are the means by which they can be effected and the direction of such far-reaching changes. To achieve result it is imperative that the changes should be accomplished by law rather than revolutionary violence.[19]

It is for this need to accomplish change by law that the constitution explicitly states that “This Constitution is supreme”.[20] The implication of this is that if any other law is inconsistent with the provisions of the 1999 Constitution, that other law shall be void to the extent of its inconsistency.[21]

The Constitution has gone a long way in making provisions for the effective governance of Nigeria in a democratic setting. It shared vividly the powers of government to the three arms of government in a very clear manner. Unfortunately Nigeria is still in bondage. This prompted Osagie[22] to write that Nigeria is a nation of all kinds of Mafia. But two types are the most prominent namely political mafia and economic mafia. He describes political mafia thus: “Those who call the shots at the different strata of governance and decide who gets what and when; who becomes governor or president; who gets ministerial job, who get appointed into what position”.[23] The second is the economic mafia. Osagie’s postulations clearly show that the problem of governance in Nigeria is not a problem of the law but that of the mafia’s grip on the Nigeria State.

Olowu[24] is worried about how to extricate the tripartite phenomena of constitutionalism, democracy and governance from the failures of the past. This, he maintains, constitutes one of the most important and fascinating tasks of our time.[25] He notes that the task lies in building a state in which governance rests on the foundation of both elite processes to maintain political settlements and societal efforts to hold those elites accountable from day to day. Olowu, therefore, concludes that any discourse on constitutionalism in Africa naturally engenders the inclusion of the concepts of governance and democratization.

Olowu clearly has given a roadmap on how best to tackle the challenges of democratic governance in Nigeria. However, it must be stated that governance can only be effectively done where there exists the rule of law. This absence of the rule of law is one factor that has firmly barricaded the advancement of Nigerian democratic governance. In Gwede v. INEC[26] Onnoghen JSC suggests the way out thus: “To overcome the present culture of impunity in the political environment all hands must be on deck particularly the hands of those entrusted with the responsibility of ensuring an even playing field for the political actors/gladiators, otherwise the future of our democracy is very bleak indeed”.[27]

Amadi[28] is of the view that governance is not just presidential or gubernatorial manner of conducting the policy and affairs of a state or people. Governance is administration at every level in establishments or institutions, whether in the public or private sector of the Nigerian enterprise.[29] Amadi contends that the rule of law is seemingly an unprincipled concept, tending to find comfort and fit into any type of organisation or government.[30] It is the rule of law that guarantees the political rights of an individual. Nwabueze maintains that rights constitute the intrinsic attributes of the human being, the essence of human personality.[31]

Da’ud and Alkali[32] note that Nigeria as a country has reached a stage where it has become necessary for her to have established a system of government through its constitution that will enable her to achieve national development, socio-economically, politically and technologically. They insist that today it may be very safe to say that every system of Government is failing or has failed, the government and the governed are all in confusion, deceiving one another. They emphasize that the educational system, the health sector, the economy among other things, and the sense of focus of the Government has failed. The system of government is no longer in line with the purposes for which it was adopted, despite the fact that the Constitution of the Federal Republic of Nigeria 1999 as amended was drafted for the purposes of not only realizing national development but also achieving it.[33] Akomolede[34] argues that it could therefore, be rightly stated that constitutionalism or supremacy of the Constitution has never been in doubt in Nigeria, and failure to adhere to constitutional provisions renders whatever was done contrary to it unconstitutional.[35] Irrespective of these diverse postulations, none of these scholars has been able to decipher the nexus between democratic governance and constitutionalism and the challenges thereto. This study is poised to achieve this feat and fill the gap in that area, but will also rely to a great extent on the work of these writers.

There are relevant terms that will aid the easy presentation and appreciation of this study. Such terms will be the focus of this section of the study.

1.9.1. Constitution

The constitution may be best understood as a concept. It is that concept which explains the institutionalized workings of a political system.[36] Nwabueze explains that Constitution is a body of fundamental principles according to which a state is organized.[37] Basically, the fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental powers and guarantees individual civil rights and civil liberties is the constitution.[38] The constitution of a country is enacted for the purpose of establishing a particular system of government and also prescribing limitation on organs of the government so established. There are various reasons why countries adopt or enact a constitution, but the main reason is that most times people will want to secure and protect their fundamental rights and freedom from state power or the arrangement of the government amongst the people may be such that the minority may like to protect their specific interest against the rule of the majority.[39]

The responsibility of giving life to the sections of the constitution is vested in the courts via the exercise of their constitutional right of adjudication.[40] In Vice Chancellor University of Ilorin & Ors. v. Olufeagba & Ors.[41] it was held that the provisions of the constitution are to be given liberal construction so as to best carry out the intention of the founding fathers. The courts will not give to any provision of the Constitution a construction which will defeat its obvious intention.[42] The implication of this is that where the words of the Constitution or statute are clear and unambiguous, they must be given their plain and ordinary meaning.[43] Therefore, the general principle of law governing the interpretation of the Constitution is to interpret same as would serve the interest of the Constitution and best carry out its object and purpose.[44]

1.9.2. Supremacy of the Constitution

Supremacy of the constitution entails that all governmental powers should be distributed and be exercised in accordance with the provisions of the constitution. Where such powers are not exercised in compliance with the law, it shall be null and void to the extent of its inconsistency. Section 1(1) of the said Constitution provides inter alia that: “The Constitution is supreme…”. In Jimoh v. Olawoye,[45] the court held that the constitution of the Federal Republic of Nigeria is supreme. The implication of this is outlined in section 1(3) of the 1999 Constitution as amended to the effect that: “If any other law is inconsistent with the provisions of the 1999 Constitution, this constitution shall prevail and that other law shall to the extent of its inconsistency be void.”

The Constitution is the supreme law of the land. Therefore, the provisions are superior to every provision embodied in any Act or law and are binding on all persons and authorities in Nigeria. The failure to follow any of the provisions renders the steps taken unconstitutional, null and void. Such Act must be set aside by the court.[46] In Elelu-Habeeb & Anor. v. Attorney General of the Federation,[47] it was held that whenever the court is called upon to interpret any provision of the constitution, it must advert its mind to the fact that the Nigerian Constitution is the basic document that regulates the affairs of the nation by setting out the functions and powers of the different components of government. Each provision of the Constitution is supreme thus, forming part of the supreme law, hence the provisions must be given a broad and not a narrow interpretation which will do violence to it and fail to achieve its goals, unless there is something in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution.[48]

1.9.3. Constitutionalism

Constitutionalism in its distinctive sense is a modern phenomenon which can be defined only by facing the complexities of defining a constitution.[49] Constitutionalism has been defined as “a complex of ideas, attitudes, and patterns of behaviour elaborating the principle that the authority of government derives from and is limited by a body of fundamental law”.[50] Constitutionalism is usually associated with the political theories of John Locke and the founders of the American Republic, that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations.[51] It is often equated with the concept of the “Rule of Law”. The concept of constitutionalism holds that a political organization is constitutional only to the extent that it “contains institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority”.[52]

Constitutionalism is descriptive of a complicated concept, deeply embedded in historical experience, which subjects the officials who exercise governmental powers to the limitations of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials. Throughout the literature dealing with modern public law and the foundations of statecraft, the central element of the concept of constitutionalism is that in political society government officials are not free to do anything they please in any manner they choose; they are bound to observe both the limitations on power and the procedures which are set out in the supreme constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law.[53]

Irrespective of the form of government a constitution delineates, the constitution serves as the keystone of the arch of constitutionalism, except in those countries whose written constitutions are mere sham. Constitutionalism as a theory and in practice stands for the principle that there are – in a properly governed state – limitations upon those who exercise the powers of government, and that these limitations are spelt out in a body of higher law which is enforceable in a variety of ways, either by political or judicial means.

The concept of a higher law, which spells out the basic norms of a political society, is as old as Western civilization. There are standards of rightness which transcend and control public officials; even current popular majorities represent a critically significant element of man’s endless quest for the good life.[54] Constitutionalism is a parallel concept that describes and prescribes both the source and the limits of government power. Hamilton has captured this dual aspect by noting that constitutionalism “is the name given to the trust which men repose in the power of words engrossed on parchment to keep a government in order”.[55] Little is known about the history of modern constitutionalism, but experts like Waluchow opine that the nature and origins of modern constitutionalism can be traced down to the works of the likes of John Austin, Thomas Hobbes and John Locke. He notes that a comparison is often drawn between Hobbes and Locke who are thought to have defended, respectively, the notion of constitutionally unlimited sovereignty versus that of sovereignty limited by the terms of a social contract containing substantive limitations.[56]

Austin, like Hobbes believed that the very notion of limited sovereignty is incoherent, as he was of the opinion that all law is the command of a sovereign person or body of persons, and so the notion that the sovereign could be limited by law requires a sovereign who is self-binding, who commands him/her/itself. But no one can command himself, except in some figurative sense, so the notion of limited sovereignty is – for Austin and Hobbes – as incoherent as the idea of a square circle.[57] At best, the latter pay a lip service to constitutionalism, even though they go through the motion of constitution- making but turn around to make a mockery of these core institutions—which such constitutions confer on the society: constitutions without constitutionalism.[58]

1.9.4. Jurisdiction of the Courts

Courts are the institutionalized entities that operate the judicial powers of the Nigerian State. A court is a governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice.[59] Hughes defines court as a permanent organized body, with independent judicial powers defined by law, meeting at a time and place fixed by law for the judicial public administration of justice.[60] Court also means the judge or judges who sit in a court or an aggregate of separate courts or judges.[61] In Onwubuariri v. Igboasoiyi,[62] the Supreme Court explained that a court exists to balance the scale of justice between parties before it in the determination of disputes and will always ensure that none of them is placed at an advantage over the other in the balancing of that scale so as to ensure that no miscarriage of justice occurs. In Dantama v. Unity Bank Plc.,[63] the Court of Appeal while discussing the need for the court to verify the claim of the plaintiff in an open court insists that this needs to be demonstrated in open court. The court cannot verify the claim of the plaintiff within the closet of the judge.[64] The Supreme Court sealed the position inACN v. Lamido & Ors.,[65] when it held that it is not the duty of a court or tribunal to embark upon cloistered justice by making enquiry into the case outside the open court not even by examination of documents which were in evidence but not examined in the open court. A judge is an adjudicator; not an investigator.[66] Therefore, it is the duty of the courts to interpret and apply the laws of the land.[67]

The apex court in Ndaeyo v. Ogunnaya[68] defined jurisdiction as the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted and may be extended or restricted by similar means.[69]It is the statute that confers on the courts the power to exercise jurisdiction over any case, the exercise of such powers by the courts must have bearing with the claim before the court as to make the statute or enactment relevant to the case on hand.[70] Therefore, jurisdiction is very fundamental. The Supreme Court inNational Union of Road Transport Workers & Anor. v.Road Transport Employers Association of Nigeria & Ors [71]describes jurisdiction as the live-wire of a case which should be determined at the earliest opportunity. If a court has no jurisdiction to determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. This is so since a defect in competence is not only intrinsic, but extrinsic to the entire process of adjudication.[72] It is basic and not in contention, that a court is only competent to entertain a case when, inter alia, the subject matter of the action is within its jurisdiction and the action is initiated by due process of law. Kekere-Ekun re-echoed in Gwede v. INEC & Ors.[73] that jurisdiction is the lifeblood of any adjudication. Where a court lacks jurisdiction to entertain a cause or matter, its proceedings would amount to a nullity.[74]

There is always a laid down rule by which the court must carry out its adjudicatory responsibilities.  Certainly, the rules of court are made for the convenience and orderly hearing of cases in a court. They are made to help the cause of justice and not to defeat justice.[75] In Fidelity Bank Plc. v. Monye[76] the Supreme Court accentuates the concept that rules of court touch upon the administration of justice. They are made to regulate matters in court and to assist parties in the presentation of their case within a procedure made for the purpose of a fair and quick dispensation of justice.[77]Whatever the case maybe in the court proceedings, the rules are no more than an adjunct to the course of justice. The court must never interpret a rule of court to defeat access to justice. Any non-compliance with any rules of the court isprima facie an irregularity and not a ground for nullity. If they are mere irregularity they may be either a ground for setting aside the proceedings if taken up timeously before the person aggrieved thereby has taken any step upon becoming aware of the irregularity or may be waived.[78] A party who has tacitly or expressly consented to a procedure that is not unconstitutional or a nullity, but which is merely irregular or wrong and has suffered no injustice thereby cannot be heard to complain subsequently, whether in the trial proceedings or on appeal that the procedure was wrong or irregular. The court sometimes uses this approach to circumvent judicial precedent. This is the genesis of judicial rebellion tagged activism.

1.9.5. Cause of Action

A cause of action means the facts which when proved will entitle a plaintiff to a remedy against a defendant.[79] It is trite that for there to be a valid action, there must be in existence a legal right which has been breached or violated and which is capable of being remedied in law.[80] In UBA Plc. v. Eze[81] it was held that to give rise to a remedy, there must be wrongful act of a party, that is, the party sued, which has injured or given the plaintiff a reason to complain in a court of law.[82]  A cause of action is statute-barred if, in respect of it proceedings, it cannot be brought because the period laid down by the limitation law or Act had elapsed. How does one determine the period of limitation? The answer is simple – by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred.[83]

Where there is no cause of action accruing to the plaintiff, the suit will be struck out. The facts constituting the cause of action can be gleaned from either the substantive law or textbooks on law. Once the cause of action is ascertainable and legally sustainable, the court will proceed to hear the matter. But once the cause of action is antithetical to the law, it will come crashing.

1.9.6. Democracy

Democracy is simply defined as a government of the people by the people and for the people. The hallmark of democracy is that the conduct of public affairs should be done with a measure of decorum and decency. But because of the past militocratic governance, the culture of political impunity and recklessness is still prevailing. To overcome the culture of impunity in the political environment, all hands must be on deck particularly the hands of those entrusted with the responsibility of ensuring an even playing field for political actors/ gladiators, otherwise the future of democracy is bleak indeed.[84]

Politics and lobbying play very pivotal role in democratic governance. It is through politics that leaders at the various strata of the Nigerian political ladder are elected. Politics is about the governance of a domain. It seems immaterial if such administration is good or bad.[85] Swimming against the tide of the general view that politics is a dirty game, Justice Ngwuta of the Supreme Court in CPC v. Ombugadu[86] insists:  “Politics is a dirty game. I do not share this view. It is the players who are dirty and they inflict their filth on their members and by implication on the society. Politicians must learn to play the game of politics in strict compliance with its rules and the rules of organized society”.[87]

• Organisation of the Study

The study is divided into Six Chapters. Chapter One deals with the general introduction. Chapter Two is on the evolution of democratic governance in Nigeria. Chapter Three discusses the rule of law as hallmark of democratic governance. Chapter Four deliberates on the components and dynamics of constitutionalism. Chapter Five discusses constitutionalism and the challenges of democratic governance in Nigeria. Chapter Six makes necessary recommendations and concludes the work.

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