law

• Constitutional Law


  The law which regulates the structure of government, its powers and functions, rights and duties of individuals, regulates the structure of a country, relationship of government and its people, the procedure the public affairs of the country are to be administered and the provision of remedies for the unconstitutional acts of government and its agencies
• Constitution


  An instrument of government made by the people, establishing the structure of a country, regulates the powers and functions of government, spells out the rights and duties of the people and provides remedies for any unconstitutional act. It is the organic and fundamental law of a country or state which may be written or unwritten. It is also known as the supreme law of the land or the grund norm and its provisions have binding effect on all persons in that country.
• The constitution represents the collective aspirations of the people, their desire to remain as one indivisible, indissoluble sovereign entity
• The constitution operates to apply the Doctrine of Covering the Field; this is a situation where the constitution has covered the field vis-à-vis a federal or state legislation. Such a legislation is not void simpliciter but will not be operative in view of the provisions of the constitution
• The powers and functions of government as well as the rights and duties (obligations/limits) of the people are usually defined and limited in the constitution. This is to enable proper running of the society in order to prevent arbitrariness, excessiveness and impunity.
• Apart from nations/states, associations or group of persons also have constitutions which regulate their activities. But strictly, Constitution within the context of this course is restricted to constitutions applicable to countries, nations or states.
• The constitution can be amended by the National Assembly as the elected representative of the people. The overall authority is the people in whom lies the power to change, alter or modify the constitution.
• There is no constitution that is perfect; not even an autochthonous/indigenous one like 1999 CFRN. The drafters and makers of the constitution who are referred to as "Wise Men" are not omnipotent or vested with the ability to take care of all possible eventualities.
• Nature of a Constitution

  • It is an expression of the will or desires of the people
  • It is a social contract between the government and the people
• When a government or its agency does what it has no power to do, such act is ultra vires, unconstitutional, null and void and of no effect whatsoever which is liable to be set aside by a court at the instance of an aggrieved party.
• Attributes of a Good Constitution

  • Stability of form and procedure
  • Adaptability to the social/economic/technological or other changes in a country for its development and progress
  • Responsibility and accountability of Public Officers, government and public institutions in the country to the people
  • Representation of the people in government
  • Openness in the conduct of the affairs of government
  • Separation of Powers in the government
• Attributes of an Independent State/Nation/Country

  • Territorial Boundary
  • A Group of People (with common origin, language, culture, etc.)
  • Geographical Location
  • Government
  • Sovereignty
• Sources of a Constitution

  • Past Experiences of the Country
  • Customs and Way of Life of the People
  • Statutes passed by Parliament
  • Rules and Conventions
  • British Magna Carta of 1215
  • Constitutions of Other Countries
  • American Bill of Rights
  • Decrees and Edicts of Military Governments
  • Deliberations of Constitutional Conferences or Constituent Assemblies
  • Works of Eminent Writers, Jurists, Historians, Philosophers, Politicians, Statesmen, Essayists, etc. such as John Locke, A. V. Dicey
  • Case Laws or Judicial Precedents
  • Rules of International Law
• Methods of Constitution Making

  • By Enactment; i.e. being passed into force as a law
  • By growing from the accepted customs, political practices, conventions, judicial decisions and statutes of the country over a long period of time
• Types of Constitution


  • Written and Unwritten
  • Rigid and Flexible
  • Unitary or Federal
  • Presidential and Parliamentary
  • Monarchical, Oligarchy, Democratic and Republican
• Written Constitution


  It is written down in single document and can be easily obtained and consulted on any issue required by any person or group. It may also incorporate other documents or statutes in its provisions. It is rigid. It allows for easy reference. It is heterogeneous in nature (different people, different languages, etc). It prevents the government from arbitrary rule. It spells out the powers and functions of the arms of government. It makes citizens understand their rights and duties because it is written. It reduces frictions among the organs of government.
• Unwritten Constitution


  It is not written in a single document but can be found in various sources like Statutes, Conventions and judicial decisions. It emanates from the political way of life of the people. It is suitable for a homogeneous society. It is flexible in nature and can be easily amended. It allows for quick decision making and functions of organs of government are interwoven.
• The merits of a written constitution include that it is cumbersome in its mode of amendment due to its rigidity and it allows for the overlap of in the functions of the various organs of government thereby resulting in litigations which causes impediments to rapid democratic developments.
• The demerits of an unwritten constitution include that it is not suitable for a multi-lingual, multi-ethnic and multi-religious society, its provisions and interpretations are usually uncertain and subject to manipulations especially by leaders with autocratic tendencies, and it is not suitable for a countries that has permanent illiterate citizens.
• The amendment due to its rigidity allows for the overlap of the functions of the various organs of government thereby resulting in litigations which causes impediments to rapid democratic developments.
• CONSTITUTIONAL LAW


  The study of the fundamental principles of government and the constitutional structure of a state
• THE CONSTITUTION AND CONSTITUTIONAL LAW

  • MERITS OF AN UNWRITTEN CONSTITUTION
  • DEMERITS OF AN UNWRITTEN CONSTITUTION
  • THE UNITARY CONSTITUTION
  • CHARACTERISTICS OF UNITARY CONSTITUTION
  • DEMERITS OF UNITARY CONSTITUTION
  • FEDERAL CONSTITUTION
  • FEATURES OF FEDERALISM
  • DEMERITS/CRITICISMS OF FEDERALISM
  • PRESIDENTIAL SYSTEM OF GOVERNMENT
  • PARLIAMENTARY/CABINET SYSTEM OF GOVERNMENT
• Unwritten Constitution


  • Not written in a single document but can be found in various sources like Statutes, Conventions and judicial decisions
  • Emanates from the political way of life of the people
  • Suitable for a homogeneous society (e.g. Britain)
  • Flexible in nature and can be easily amended
  • Allows for quick decision making and functions of organs of government are interwoven
  • Easy to amend
• Demerits of Unwritten Constitution

  • Not suitable for a multi-lingual, multi-ethnic and multi-religious society
  • Provisions and interpretations are usually uncertain and subject to manipulations especially by leaders with autocratic tendencies
  • Not suitable for a countries that has permanent illiterate citizens
  • Despite its long usage especially in England, it has not been found universally acceptable by emerging countries
• Unitary Constitution


  • Operates a unitary system of government whereby all powers are concentrated in a single central body, which does not share power with any other body in the state
  • The constitution is usually flexible as the government has power to amend it when it is expedient
  • The central government cannot at any time withdraw any power or function delegated to a sub-entity
  • Operates a unicameral legislature but usually has a strong parliament with powerful composition in terms of membership
  • Citizens often owe allegiance to only one government
  • Adopts the doctrine of "Nationalism" as opposed to the doctrine "domicile" in a federal system
• Characteristics of Unitary Constitution

  • Small land/geographical area (size of the country)
  • Practiced because of the homogeneous nature of the people
  • To concentrate power in national government with a view to promote a strong and stable government
  • Simple and moderate to operate as it does not permit duplicity of government functionaries
  • Requires few personnel/officials to run the system thereby saving the cost of governance
  • Mode of amendment of the constitution is easier and the scope of consultation not too wide which brings about quick decision making process
• Demerits of Unitary Constitution

  • Power is concentrated at the centre in one arm of government
  • The officials are burdened or saddled with too many functions and responsibilities
  • Its operation may be prone to dictatorial rule or authoritarianism
  • Not suitable for a large population and size neither is it suitable for a multi-ethnic group or country
  • Strict adherence to the unitary system of government reduces employment opportunities for the people of the country
• Federal Constitution


  • Creates a federal system of government whereby there is a central government and constituent states making up a federation
  • Power is shared among the three tiers of government; namely (i) Federal; (ii) State; and (iii) Local Government and each exercises its constitutional powers and functions distinctly and separately from the other
  • The scope of each tier is listed in the constitution which are (a) Exclusive List; and (b) Concurrent List
• Features of Federalism


  • To unite people of different ethnicity, linguistics, cultural, economic, geographical or historical backgrounds
  • To preserve their unity and identities/separate existence
  • It allays the fears of the minority tribes that they may be exterminated by the majority tribes
  • Simple and moderate to operate as it does not permit duplicity of government functionaries
  • Federalism considers the local differences among the people by making constitutional provisions in the form of Separation of Powers, Fundamental Rights, Federal Character Principles, etc.
  • It brings about competition and healthy development among constituent states
• Demerits/Criticisms of Federalism


  • The central government may sometimes be too powerful as to impede the growth of constituent states
  • Constituent states are not sub-servient or subordinate to the federal government and as such, the federal government cannot usurp functions of any of the states to the federation except in accordance to the provisions of the constitution
  • Its operation at times may lead to duplicity of functions with huge financial implication
  • The cost of governance is astronomically high
  • Perceived fear of domination and marginalization
  • It creates tendencies for the people to owe allegiance more to their respective states than to project spirit of nationalism for the country
  • Unhealthy rivalry occurs among constituent states as there are possibilities of uneven, unequal development trend in the various states of the federation
• Presidential System of Government

  • All executive powers are vested in a person known as the "President", "Head of State" or Head of Government"
  • The president is elected directly by the people or indirectly through the electoral college
  • The president is free to choose his ministers from within and outside his party; however, such appointment is subject to confirmation by the National Assembly
  • The president is responsible to the National Assembly and the people
  • The president may be removed if he fails to uphold the tenets of the constitution in the performance of his constitutional duties on grounds of misconduct
  • The people may not renew his mandate during general elections
  • The United States and Nigeria operates this system of government
• Parliamentary/Cabinet System of Government

  • The executive powers of government is vested in the Prime Minister who is the Head of Government but not Head of State
  • The Head of State exercises ceremonial functions and may be a monarch or president but his position is a figure head type
  • The Prime Minister and the entire ministers of his cabinet are all members of the same party; however, he is the first amongst equals
  • There is no clear cut separation of power in this system of government but rather a fusion of power
  • The power to dismiss any minister is vested in the prime minister and also a vote of no-confidence may be passed against the prime minister
  • Examples of countries that are practicing or had practiced this type of system are UK, Canada, Jamaica, Israel, India, New Zealand, Australia and Nigeria (1960 – 1966)
• Textbooks


  • Wade, Bradley: Constitutional Law 6th Ed.
  • Dicey: The Law and the Constitutions.
  • Aguda: Judiciary under the Presidential System of Govt.
  • O. Oluyede: Constitutional Law in Nigeria.
  • Wade, H. W. R.: Constitutional and Administrative Law.
  • Hood Phillips: Constitutional and Administrative Law.
  • Ese Malemi: The Nigerian Constitutional Law.