The 1999 Constitution and the Rule of Law

What you need to know

• The Constitution of the Federal Republic of Nigeria 1999 came into force on 29 May 1999 and has been altered several times, which is why the correct name to write in an exam is the 1999 Constitution as amended. The First, Second and Third Alteration Acts came in 2010, the Fourth in 2017 and the Fifth in 2023.
• Section 1 makes the Constitution supreme and binding on all authorities and persons, and declares that any other law inconsistent with it is void to the extent of the inconsistency. Section 1 also forbids any person or group from seizing government except as the Constitution provides, which outlaws the coup.
• Chapter I sets out the federal structure, Chapter II the Fundamental Objectives and Directive Principles of State Policy, Chapter III citizenship, Chapter IV the Fundamental Rights in sections 33 to 46, and later chapters the executive, legislature, judiciary, states and local government.
• Chapter II contains the promises of government: political, economic, social, educational, foreign policy and environmental objectives, including free compulsory universal primary education as a direction of policy and the declaration that the security and welfare of the people shall be the primary purpose of government.
• Chapter II is non-justiciable. Section 6(6)(c) shuts the courts out, so a citizen cannot sue the Federal Government for failing to provide free education or employment. Chapter IV rights, by contrast, are enforceable in the High Court. Examiners love this contrast.
• The three arms are the legislature which makes law, the executive which implements it, and the judiciary which interprets it and settles disputes. Sections 4, 5 and 6 vest those powers separately, which is the Nigerian expression of separation of powers.
• The National Assembly is bicameral: a Senate of 109 members, three from each of the thirty-six states plus one from the Federal Capital Territory, and a House of Representatives of 360 members elected from federal constituencies.
• The three tiers are the Federal Government, thirty-six state governments plus the FCT, and 774 local government areas. Legislative power is shared through the Exclusive Legislative List, which only the National Assembly may touch, and the Concurrent List, on which both federal and state legislatures may act, with federal law prevailing in a conflict.
• Checks and balances in practice: the legislature screens and confirms nominees, approves the budget, conducts oversight and can impeach; the President assents to or withholds assent from bills, though the National Assembly can override a veto by a two-thirds majority of each House; and the judiciary can declare an act of either arm unconstitutional.
• The rule of law, as A. V. Dicey framed it, rests on the supremacy of the law over arbitrary power, equality of all persons before the law, and rights secured through the ordinary courts. Nigeria adds the supremacy of a written constitution to that list.
• Conditions that make the rule of law work are an independent judiciary, security of tenure for judges, fair hearing, a free press, an educated and alert citizenry and a government willing to obey court orders. Disobedience of court judgments by the executive is the most serious practical threat to it in Nigeria.
• Section 308 grants immunity from civil and criminal proceedings to the President, Vice-President, Governors and Deputy Governors while they remain in office. It is a recognised exception to equality before the law, and it ends the day the person leaves office.
• Other limitations on the rule of law are the immunity of legislators for words spoken on the floor, delegated legislation, emergency powers under a state of emergency, administrative tribunals and the special privileges attached to diplomats.
• The Supreme Court, headed by the Chief Justice of Nigeria, is the final court of appeal. Below it are the Court of Appeal, the Federal High Court, State High Courts, the Sharia and Customary Courts of Appeal, and the Magistrate, Area and Customary Courts.