BY SAM ELEANYA
Nigeria, 99th member of the United Nations, is an internationally recognized sovereign nation made up of 36 states and a Federal Capital Territory, Abuja. Each of those 36 states is empowered by Nigeria’s Constitution to establish and maintain a legal system that would assure justice within the assigned territory so as to enable every citizen and other persons resident in it carry on their legitimate everyday pursuits.
Together, the Constitution, the individual legal system of Nigeria’s 36 States,- coupled with laws made by the Federal Legislature for the entire nation or for the Federal Capital Territory as well as Nigeria’s treaty obligations, make up the Nigerian legal complex.
As a legal complex with varying legal standards, the Constitution provides the ultimate principles, rules and doctrines from which the legitimacy and hierarchy of all other legal norms in Nigeria are validated.
NIGERIA: CONSTITUTION DEVELOPMENT HISTORY
Nigeria is a creation of the Constitution. Nigeria grew into an internationally recognised independent nation, in 1960, after a period of colonialism under the British government which spanned about a century beginning with the formal annexation of Lagos in 1861. Nigeria’s constitutional development history can be divided into two epochs or generations: the colonial or pre-independence epoch –which covers 6 constitutional instruments (1914, 1922, 1946, 1951, 1954 and 1960) and the post-independence constitutional epochs (encompassing 3 instruments – 1963, 1979 and 1999). While each successive pre-independence constitutional instrument was enacted through an order-in-council of the British monarch, their post-independence counterparts were enacted in two ways: an Act of parliament (1963 Constitution) and military decree (1979 and 1999).
The one ‘Nigeria1’ sthttp://army.mil.ng/ory began in 1914 with the Frederick Lugard Constitution. The 1914 Constitution amalgamated the Colony and Protectorate of Southern Nigeria with the Protectorate of Northern Nigeria under the colonial authority of the British Monarch. The emergent entity was administered under the authority of the British monarch through her appointed agent: a Governor-General. Lord Frederick Lugard was the 1st Governor-General of amalgamated Nigeria. The 1914 Constitution created a Legislative Council of the Colony which was however restricted to making laws for the Colony of Lagos alone, whilst the Governor General made laws for the rest of the country.
Eight years later, the 1914 Constitution was replaced by the 1922 Sir Clifford Constitution. Notably, the latter Constitution established a 46 member Legislative Council which was given law making responsibilities for the Colony of Lagos and the southern provinces. The Council had 27 members including the Governor, the Lieutenant-Governors, other elected and nominated members including three representing Lagos as the administrative and commercial capital and one representing Calabar as a big commercial centre. Notably, the 1922 Constitution introduced, for the first time in any British African territory, the elective principle with Lagos and Calabar being granted the franchise to elect their representatives to the Legislative Council.
1946 saw the adoption of the Arthur Richard Constitution which defined Nigeria, for the first time, in terms of regions – thus dividing the still colonised country into three main regions: the Northern, Western and Eastern regions. This constitution came into effect after the Second World War – an event which had a significant effect on constitutional reforms relating to the governance of colonial Nigeria, and indeed Africa as a whole, as returning African heroes of the war who were conscripted to fight on the side of the British returned with a deeper understanding of national freedom and international sovereignty. In addition, the charter of the United Nations which was adopted after the war made strong reference to the freedom of colonised people under the principle of respect for self-determination.
The chain of events culminated in the formation of the National Council for Nigeria and Cameroons, which later became the National council of Nigerian Citizens, (N.C.N.C), an organization which engaged in the active mobilization of the indigenous peoples of Nigeria to harness the global tide in favour of self-determination and political independence from the shackles of colonialism. The 1946 Constitution was thus a compromise instrument on the part of the British colonialist designed to establish a constitutional framework in which all sections of Nigeria could be represented on the Legislative Council and which guarantees an unofficial majority both in the House of Assembly and in the legislative council for indigenous Nigerians.
Five years later, the 1946 Richards Constitution was again ditched in favour of the 1951 Sir John Macpherson Constitution. Whereas its successor suffered from the charge of being an imposition of the British colonialists without any input from the indigenous people of Nigeria, the 1951 Macpherson Constitution came into being after an unprecedented process of consultation with the peoples of Nigeria. According to Dikemgba “no other constitution so widely reached out to the people than the Macpherson constitution of 1951”. Instructively, meetings and consultations leading down to its making were held at 5 levels – Village, District, Divisional, Provincial and Regional levels – before the national conference. The regional conferences were held at Ibadan, Enugu and Kaduna, respectively and produced a general consensus in favour of a federal system of government with a few differences as to its format. The emergent Constitution represented a major advancement on the old constitutional order by introducing African elected majorities in the Central Legislature and in the Regional Houses of Assembly; endowing the legislative houses with independent legislative power in many area of state activity; and establishing a federal system for Nigeria for the first time.
Nonetheless, within three years of its operation, it soon became clear that the expansion of the political space and regional identities fostered by the 1951 Constitution were not backed up by the requisite institutional framework or insightful national leadership for the management of inherent and other tensions or conflict, at the national and regional levels, which followed its enactment. In the wake of reports of violent eruptions in the northern city of Kano which pitched northerners against southerners leading to massive loss of lives and property, the then British Secretary of State for the Colonies, Oliver Lyttleton stepped in by inviting the leaders of various political parties in Nigeria to attend a conference in London, in 1953. The outcome of that conference and another cycle of conference and consultations which followed was the 1954 Lyttleton Constitution.
The 1954 Constitution, among others, made regional governments independent of the central government in respect of subjects and legislative powers allocated to them. It also established a unicameral legislature for the federal government and each of the 3 regional governments. In addition, Lagos was taken out of the control of any regional government and made the Federal Capital Territory; regional public services were established for each of the 3 regions; the judiciary was reorganised so as to establish regional judiciaries while autonomy was granted to the Southern Cameroons which was up till that time part of a larger Nigeria and Northern Cameroons. Specifically, for the first time, Ministers were given specific portfolios. Thus, the Lyttleton Constitution could best be described as the transition instrument towards Nigeria’s independence in 1960 under a federal structure with democratically elected federal and regional legislature.
In 1960, Nigeria was granted political independence as a sovereign state under the 1960 Constitution which provided for a parliamentary system of government, 3 regions (Northern, Eastern and Western Regions), a bicameral legislative framework at the federal (Senate and House of Representatives) and regional levels (House of Assembly and House of Chiefs) with the legislative powers of government delineated into three categories or lists – exclusive, concurrent and residual. The parliamentary system designed under the 1960 constitution recognized the British monarch as the Head of State with powers to appoint a resident agent- the Governor-General- to exercise executive powers on her behalf while a Prime Minister elected by the federal parliament acted as the Head of the federal Executive Council. The Constitution also took steps to define ‘Nigerian citizenship’ while outlining constitutionally protected rights for citizens and persons in Nigeria.
However, by designating the Governor-General as a representative and agent of the British Queen or Monarch – instead of the People of the independent and sovereign state of Nigeria, the effect was to render Nigeria a dominion territory – a status which contradicted the very nature and basis of the independence claimed in 1960. In addition, the 1960 Constitution denied Nigeria an effective dominion over its judicial powers as it gave final appellate authority over Nigeria to the Privy Council established by the British Queen instead of the Federal Supreme Court and its judges. Those fundamental derogations from Nigeria’s sovereignty and other observed challenges in implementing the Independence Constitution led to the enactment of the 1963 Constitution.
Thus, the key features of the 1963 Constitution included the establishment of Nigeria’s 1st republic under a parliamentary system of government by replacing the Governor-General appointed by the British monarch with a President elected directly by members of the Nigerian federal legislature. In addition, in place of the Privy Council, the Federal Supreme Court became designated as the final appellate judicial authority over any person or matter in Nigeria while steps were taken to strengthen the independence of the judiciary even further.
In 1966, that Constitution was, however, set aside by a violent military coup d’etat which supplanted the 1st Republic with military dictatorship which was to last for about 13 years –including the civil war period (1966-1969), under 4 military Heads of State, ending only in 1979 when the General Olusegun Obasanjo military administration ushered in the 2nd Republic with the promulgation of a new Constitution.
The 1979 Constitution set up Nigeria under a presidential system of government with a federal government, 19 state governments, a federal capital territory, 3 arms and 3 levels of government. Like the 1963 Constitution, the life-span of the 1979 Constitution was abruptly terminated on 31st December, 1983 when the civilian administration of President Shehu Shagari and Vice President Alex Ekwueme was toppled and replaced by the military dictatorship of Generals Muhammed Buhari and Tunde Idiagbon. That regime seeded 3 other extra-constitutional regimes – the General Ibrahim Babangida military dictatorship (1985-1993), Mr. Ernest Shonekan interim civilian-led regime, General Sani Abacha military dictatorship (1993-1998) and General Abdulsalami Abubakar military administration which successfully ushered in the 3rd Republic on the 27th of May, 1999 with the introduction of the 1999 Constitution.
KEY FEATURES OF THE NIGERIAN LEGAL COMPLEX
Key Features of the Nigerian legal complex include:
A. Multiple Influences
Nigeria is a nation of some 162 million peoples most of whom draw their ancestry from about 250 indigenous ethnic groups.
Each of these ethnic group have cultural norms that have evolved or inured and presently constitute the corpus of customary norms in Nigeria provided they satisfy certain standards often known as the repugnancy test.
The peoples that presently constitute modern Nigeria, at some point in their history, had their territory collectively declared a colony by the government of Britain: a state of affairs that ended in 1960 with the emergence of the sovereign State of Nigeria.
The interaction with Britain led to the initial adoption of several of the Laws of the British government for the emergent nation – which gained political independence and became a state-member of the United Nations in 1960 – pending the promulgation of locally made replacements for them.
Indeed, one aspect of Nigeria’s sovereignty, the capacity to exercise supreme and final appellate judicial authority over any matter which comes before the nation’s courts was not even fully liberated with independence in 1960 as the nation’s courts were put under the final appellate authority of the British Monarch through the Privy Council. Equally, the internationally recognised Head of the Nigerian government remained the British monarch even though the executive powers through an indigenous Governor-General appointed by her.
However, in 1963, Nigeria’s legal order became fully independent and anchored within the Nigerian sovereignty. The framework for the exercise of its executive powers changed from the British Parliamentary model to a Presidential model, similar in several respects to the American system.
Under the new system, the powers of the Nigerian State were spread within the interstices of a central government and 3 regional governments. The framework for the exercise of its legislative powers was also shared among the federal legislature and regional legislative centers while the supremacy of its judicial powers was fully assumed and vested in a Supreme Court established for the nation. A President whose emergence was a wholly Nigerian affair replaced the Governor-General.
Since then, the Nigeria legal order has evolved as to incorporate a bouquet of normative statements made by various military and civilian regimes that have led the country. From its commercial laws to its criminal codes, influences spanning the customs of its indigenous peoples, legal practices of other nations – ranging from the British, United States, European countries including the Scandinavian bloc, Asia, Oceania and even other African countries – can be discerned.
For instance, the Criminal Code and the Matrimonial Causes Act are modeled after those of Queensland, Australia while the Penal Code (applicable in the North) is fashioned after the Sudanese Penal Code. Many of its statutes for the regulation of its banking and financial sector draw heavily from rules distilled from far flung places like the United States, Canada, South Africa, etc.
Thus, it is difficult to ascertain the degree to which any of these foreign and indigenous influences, including the British common law system, may have exclusively impacted on the legal order of Nigeria, today. The picture that emerges is that of a truly distinctive Nigeria legal complex different, in many material respects, from that of any other country. Its more obvious features include:
(1) The existence of Constitutional norms and standards most of which were enacted through supreme decrees of past Military governments with the tacit support of the majority of Nigerians desirous of a return to democratic regime. Specifically, the prevailing constitutional document enacted in 1999 establishes a federal government with three major levels—the federal, state and local governments. It also establishes a framework at the three levels that accommodates the spread of the powers of government among three arms: the Executive, Legislative, Judicial. Certain critical bodies that are deemed as independent – since they are not answerable, exclusively to any one of the executive, judicial or legislative arms of government – also exist;
(2) Thirty six (36) separate, independent, interacting and geographically bound legal systems co-existing within a constitutional framework that also accommodates a set of federal laws applicable to all the States across board;
(3) Treaty obligations of Nigeria at the regional and global level as well as international customs or obligation erga omnes which apply mandatorily on Nigeria as a every member of the comity of nations;
B. Order of Judicial Hierarchy
The supreme judicial powers of Nigeria are vested in Nigeria’s judicature comprising of tribunals established under the nation’s Constitution and other laws made pursuant to the Constitution.
At the top of the hierarchy of Nigeria’s judicature is the Supreme Court. Second to it is the Appeal Court. Their original jurisdictions are provided for in the 1999 Constitution. Except where otherwise clearly provided, any appeal originating from any Court or tribunal in Nigeria flows through the Court of Appeal, and from there, it may move to the Supreme Court, whose decision is final.
Nigerian Courts could generally be classified as:
1. Tribunals for the Federation: These include all Courts which original or appellate jurisdictions extend to persons or matters throughout the entire federation.
For instance, apart from their original jurisdictions, the Appeal Court and the Supreme Court, in that order, act as the last two appellate authorities over decisions emanating from any of the courts of the 36 States of Nigeria/FCT as well as the Federal High Court, the National Industrial Court, the Code of Conduct Bureau, Investment and Securities Tribunal, Disciplinary Tribunals of Professional bodies and generally, the Election Tribunal.
Some federation courts are not chiefly concerned with appeals. Rather, they are given, within their establishment statutes, original and review jurisdiction over matters vested in the Federal Government. These include:
2. State Tribunals: These are Courts established by each State for the adjudication of matters constitutionally within the powers of every State government. State Courts include:
3. Election Petitions Tribunals: are specialized tribunals set up to adjudicate over disputes arising from elections into political offices in the executive and legislative arms of government at the Federal, State and Local Government levels. Usually, these courts are generally ad-hoc in nature as they are established to adjudicate over disputes arising from any election in the country to fill elective positions into the executive and legislative arms of government at the Federal, State and Local government levels. Members are usually serving judges seconded to the tribunal from various levels and branches of the Judiciary, except the Supreme Court, depending on the level of the election being adjudicated over.
Under the Nigerian legal complex, Superior Courts of records refer to all the courts presided over by judges trained in law where there is duty to record and publish for public access proceedings leading down to a judicial pronouncement.Inferior courts, on the other hand, may or may not have legal practitioners as presiding officers and are often not obliged to record all proceedings in any matter.
Superior Courts of records include the Supreme Court, the Court of Appeal, the Federal High Court, State High Courts, National Industrial Court, Customary Courts of Appeal and Sharia Courts of Appeal. Inferior courts, tribunals and special courts include Magistrates’ and District Courts, Juvenile Courts, Customary and Area Courts, Courts Martial and Public Complaints Commission.
B. Fusion of the Legal Profession
Currently, legal practitioners in Nigeria are trained to become legal practitioners [within a training scheme that recognises no dichotomy between barristers and solicitors] and encompasses a five year degree programme at the university level and thereafter, a one year certification course, at the Nigerian Law School. They are then admitted to the Nigerian Bar as solicitors and advocates of the Supreme Court of Nigeria.
C. The Practice of the Accusatorial System
The Nigerian legal process, especially at the level of recognized courts of records, is accusatorial in nature. It is a feature that diminishes as one goes towards the more informal tribunals, especially customary courts. However, in recent years, the practice of a multi-door system that allows for the formal integration of alternative dispute resolution processes and litigious ones is fast gaining acceptability.
D. Military Influence
The impact of the incessant interventions of the military in Nigeria’s political development is not without its peculiar marks on the country’s legal complex.
One of those areas has been the developmental history of constitutionalism in Nigeria where military regimes not only enact Constitutions through their military fiat but also try to influence how constitutional standards are interpreted by the courts. The struggle emanates from the fact that Military governments strive for legitimacy by assuming the full compendium of the executive and legislative powers of State—but very limited judicial powers and functions.
The result is that Nigeria’s constitutional history is replete with instances of so-called ‘suspensions’, or ‘modification’ of constitutional statements through Military Decrees. The corollary is that Nigeria’s legal jurisprudence is stained with contradictory statements from the Supreme Court regarding the supremacy of the nation’s Constitution vis a vis a military Decree, at various points. Currently, the Supremacy of the Constitution has been re-established since the return to democratic government in Nigeria.
SOURCES OF NIGERIAN LAW
THIRTY SEVEN FEDERATING UNITS OF NIGERIA
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 The name Nigeria was coined by Lady Shaw Lugard, a journalist who later became the wife of amalgamated Nigeria’s 1st Governor-General, Frederick Lugard. She also wrote Nigeria’s 1st National Anthem.
 Member of the Constituent Assembly
 The elected majorities in each Regional House were as follows: North – elected 90, non elected – 14; West – elected 80, non-elected – 7; East – elected 80, non-elected 8.
Sam Eleanya, is Editor of LawNigeria.com is the Founder of Tree & Trees JusticeMedia Group, Nigeria’s dedicated justice sector social enterprise behind multiple ground-breaking works including Center for Treaties of Nigeria, Standards & Enterprise Development Center, Center for the Laws of Nigeria and 36 States, the Nigerian Constitution, etc.