14th Inaugural Lecture At Kwara State University: Nigerian Constitution Has Binding Forces On All Authorities, Persons-Amuda-Kannike

Nigerians have been advised to see the nation’s constitution as a document that is supreme, which has binding forces on all authorities and persons.

This was the submission of a Professor of Jurisprudence & International Law in the Department of Jurisprudence and Public Law, Faculty of Law, Kwara State University, Malete, Nigeria, Abiodun Amuda-Kannike, SAN.

Professor Amuda-Kannike stated that the supremacy of the Constitution, as expounded by A. V. Dicey, is provided for in Section 1(1) the 1999 Constitution of the Federal Republic of Nigeria (as amended), which he said is thus: “This constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”

The scholar was speaking at the 14th Inaugural Lecture of Kwara State University, Malete, Titled; “The Jurisprudence Of Our Constitution, Rule Of Law And Technicalities: The Nigeria Dilemma,” under the Chairmanship of The Ag. Vice Chancellor Professor Shaykh Luqman Jimoh on Wednesday May 8, 2024.

“The Supremacy of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness of prerogative or even wide discretionary powers on the part of government.

“What this means is that the above provision must be exercised in accordance with the provision of the Constitution which is the basic law of the land. Supremacy of the constitution in Nigeria received judicial affirmation by the Supreme Court of Nigeria, per Sir Udo Udoma JSC (as he then was) in the case of Nafiu Rabiu vs State while commenting on the provisions of Section 1(1) of the 1979 Constitution which is perimaterae with the provisions of Section 1(1) of the 1999 Constitution, held thus: “…the present Constitution has been proclaimed the supreme law of the land; that it is a written, organic instrument meant to serve not only the present generation, but also several generations yet unborn; that it was made, enacted and given to themselves by the people of the Federal Republic of Nigeria…that the function of the constitution is to establish a framework and principles of government, broad and general in terms…”

“Viewed against the above background, Mr. Vice-Chancellor Sir, Dicey’s exposition shows that power must be used in conformity with the basic and ordinary laws of the land. It also presupposes that there must not be executive lawlessness in any country where the rule of law is in operation.

“The law therefore, must be allowed to reign freely and every action must be done according to law. To this effect, the 1999 Constitution provides that any law that is inconsistent with the provision of the constitution shall be void and the provisions of the constitution shall prevail. The conception of the rule of law as against the rule of arbitrariness has received judicial affirmation in lots of Nigerian cases. In the case of Military Governor of Lagos State vs Ojukwu, the Supreme.

“Court stated that the essence of the rule of law is that, it should never operate under the rule of force or fear,” he said.

The don stressed that to use force to seek court’s equity is an attempt to infuse timidity into the court and operate a sabotage of cherished rule of law, it can never be.

He added that the court further stated that, the rule of law presupposes that: the state is subject to the law; the judiciary is a necessary agency of the rule of law; and that the government should respect the right of individual citizen under the law.

He maintained that the judiciary is assigned both by rule of law and by the constitution the determination of all actions and proceedings relating to matters in dispute between persons and between government and any person in Nigeria.

He said: “A cursory look at the 1999 Constitution of the Federal Republic of Nigeria (as amended) shows it recognized the rule of law and recognizes various constitutional principles in that regard.

“Notwithstanding this, there are several instances in Nigeria, where there exist questioning of the scope of the application of the rule of law; for example, the function of legislative oversight in the Constitution ordinarily should propel checks and balances, enthrone financial discipline, good governance, accountability and transparency in public offices, through the constant review of executive actions by the legislature in carrying out their legislative mandates and ultimately entrenching the rule of law.

“Critically examined, this function has been subject of abuse by the legislature. One instance was the House of Representative probe of the Capital Market and Institution collapse, where the committee chairman and the other members were alleged to have asked for gratification in order to influence the probe and the head of the Capital Market refused to agree, the Agency budget for that year was not passed by the National Assembly.

“Many such other instances can be seen; in the heat of political tussle and the struggle for the control of power in Rivers State between the wife of the President, Patience Jonathan and the governor of the State, Rotimi Amaechi. The governor as at then was prevented from accessing his office by the State Commissioner of Police on the ‘instruction of order from above’. Also in 2013, the Lagos State government, in ambush and to overreach a pending court judgment of the legality of imposing tolls on roads in Lagos, commenced the collection of tolls on one of the bridges it built before the date fixed for the judgment. These actions have clear implications on the rule of law and its application in Nigeria.”

On relating Dicey’s Conception of Equality before the Law in Nigeria, Professor Amuda-Kannike stated that what is meant by equality before the law meant chiefly the subjections of public officials to the general law, as administered by the ordinary common law courts.

He noted that the Rule of Law is threatened more, not by mere conferment of discretionary powers on public officials, but by the absence of judicial safeguards against their abuse.

Dicey, A. V. (1950), while crafting his three ‘kindred Conceptions,’ he said, argued that the rule of law is founded on the idea that ‘all people are equal before the law, and that all, particularly government officials and clergymen, must be tried under the same law in the same courts as ordinary men’.

According to him, this is meant to: …ensure that all citizens no matter how well connected, rich or powerful- are judged for their action by the same laws, equally applied.

The accomplished professor of law posited that equality before the law is one of the core ways in which citizens can ensure that government officials, the rich, the powerful, and the well- connected do not become a caste apart.

“The practicability of the rule of Law in Nigeria is a far cry from this. Nigerians long legal history has shown that it is only on paper that the idea of equality before the law is obtained.

“Quite apart from the ever expanding fact of the widening divide between the rich and the poor, the ever growing poverty in the country has so many repercussions. One of which is an aberration to the rule of law, is that there is a law for the rich and another for the poor.

“The cost of attaining justice using the formal adversarial process is so prohibitively expensive that the ordinary man would choose to rather sleep on his right or watch it go by than dream of suing to secure such right especially in civil matters. Technicalities, delays, endless adjournments, gimmicks by the lawyers and the hierarchy to climb from the lower court to the Supreme Court each stage with its attendant cost is something that does not appeal to the ordinary man.

“This situation is worsened in the circumstances where the rich, the powerful and governmental official find favor in being excused from the application of the law.

“The fact that they have the ‘means’ simply indicate that they can ‘buy’ their way out and can afford the almost prohibitive expenses of going to court, paying for lawyers and short circuiting the unduly prolonged time it takes for decisions to be handed down.

“The level of official corruption in Nigeria also suggests that the knowledge and appreciation of the core ideal of the rule of law having a general inter play will, for generations to come, remain practically a myth than a reality or ideal for the mass of Nigeria’s populace,” he said.

He explained further that it is also an essential requirement of the rule of law that equality before the law should also include the requirement for upholding the rights of marginalized groups, such as women, racial and religious minorities, who he said must also be treated as equal before the law.

This, he stated, is one of the most visible instances where the rule of law in its practical and realistic sense in Nigeria is a myth.

“Mr. Vice-Chancellor Sir, effectively, as far as equality before the law percepts are concerned in Nigeria, it will be naive to even think that the Nigerian succeeding governments have the slightest idea of the true meaning and implication of the rule of law as they persistently have been laying claims as respecters of the rule of law and at the same time adopting the rule of law as laying at the center and the main policy focus of their administration.

“Consequently, one can hardly fail to agree that in transnational and developing countries, ‘the lack of equality before the law- the feeling that there are not “equal laws, for the noble and the base”- is a prime complaint’- (in the case of Nigerians an altruism) that is often believed so strongly that ordinary people do not even attempt to test the principle with a time-consuming and expensive court case,” he said.

While making recommendations for a balance jurisprudence, he said that in seeking solutions to the Nigeria dilemma, the nation must strive for a jurisprudence that harmoniaes the nation’s constitutional values, the rule of law, and the judicious use of legal technicalities.

This balance, he stated, can pave the way for a more just and equitable society.

“Balanced jurisprudence refers to the pursuit of equilibrium in the legal system, where the principles of justice, fairness, and the rule of law are harmonized with the practical realities of legal practice and the efficient administration of justice. It involves striking a thoughtful balance between various legal considerations to ensure that the law serves its intended purpose while avoiding unintended consequences.

“The Supreme Court, on their own, stated that a court of law does not expend its energy on academic issue, as it does not exercise its jurisdiction in vein as stated in the case of Adalma Tankers Bunkering Services Ltd v CBN (2022) 13 NWLR (part 1846).

“With all due respect to the learned Justices of the Supreme Court, we don’t agree with this constant bashing of the academic as if it is a contest between “academic” and the court.

“The academic, especially legal academic have been of great importance to the development of the law and our Justice delivery system.

“May I with all due respect to lawyers and learned jurists commencing from Magistrate Courts, Sharia Courts, Sharia Court of Appeal, Customary Court of Appeal, High Courts, Federal High Courts,
National Industrial Courts, Court of Appeal and Supreme Court to use the words “this will be an exercise in futility” than saying “this is an academic exercise” because academic exercise gave to them, more opportunity to know the Law, develop the law and appreciate their mistakes,” he said.

.