Judicial Review and Judicial Supremacy: a Paradigm of Constitutionalism in Nigeria.
JUDICIAL REVIEW AND JUDICIAL SUPREMACY: A PARADIGM OF CONSTITUTIONALISM IN NIGERIA.
By
A.T.Shehu, PhD(
ABSTRACT
This paper examines judicial review and judicial power in Nigeria under the 1999 Constitution in relation to the constitution itself and in relation to the political branches of government. This is essentially to locate where lays supremacy between the branches and the judiciary particularly the Supreme Court with its final appellate jurisdiction. Judicial review and supremacy of the judiciary had been of recurring academic discuss in some jurisdictions with written Constitutions, particularly the United States from where Nigeria largely borrowed its presidential constitutionalism. This thus suggests that there is a need to examine the controversy within the context of Nigeria’s experience; is it really in the Constitution that creates branches of the government and that is proclaimed to be supreme over all authorities including the judiciary? Is it in the judiciary whose oversight function cuts across the political branches and whose interpretative decisions are binding on the constitution itself and the other branches? Is it in the executive that appoints and removes Justices of the court subject to confirmation by the Senate, or is it in the legislature? The paper argues that the overriding effect of the judicial power of the Supreme Court over all persons and authorities including the Constitution puts the judiciary in supreme position, that being the natural consequence of the power so vested in the judiciary by the “People Themselves.”
I. INTRODUCTION
The Constitution is a document ordained usually by the people setting out the relationship between the people and the three organs of government on the one hand and between the organs themselves on the other hand. It is important to note from the outset that the constitution, in a normal constitutional setting,1 reflects the wishes and aspirations of the donors of the constitutional
By
A.T.Shehu, PhD(
ABSTRACT
This paper examines judicial review and judicial power in Nigeria under the 1999 Constitution in relation to the constitution itself and in relation to the political branches of government. This is essentially to locate where lays supremacy between the branches and the judiciary particularly the Supreme Court with its final appellate jurisdiction. Judicial review and supremacy of the judiciary had been of recurring academic discuss in some jurisdictions with written Constitutions, particularly the United States from where Nigeria largely borrowed its presidential constitutionalism. This thus suggests that there is a need to examine the controversy within the context of Nigeria’s experience; is it really in the Constitution that creates branches of the government and that is proclaimed to be supreme over all authorities including the judiciary? Is it in the judiciary whose oversight function cuts across the political branches and whose interpretative decisions are binding on the constitution itself and the other branches? Is it in the executive that appoints and removes Justices of the court subject to confirmation by the Senate, or is it in the legislature? The paper argues that the overriding effect of the judicial power of the Supreme Court over all persons and authorities including the Constitution puts the judiciary in supreme position, that being the natural consequence of the power so vested in the judiciary by the “People Themselves.”
I. INTRODUCTION
The Constitution is a document ordained usually by the people setting out the relationship between the people and the three organs of government on the one hand and between the organs themselves on the other hand. It is important to note from the outset that the constitution, in a normal constitutional setting,1 reflects the wishes and aspirations of the donors of the constitutional
Cited: 41 Ese Malemi, THE NIGERIAN CONSTITUTIONAL LAW 170 (Princeton Publishing Co., 2006) 42 Id., 193 43 Dicey, A.V., supra note 6 at 39-40 44 Adaramola Funsho, BASIC JURISPRUDENCE 85-88 (Rahamat Printing Press, 1995) 45 Lord Llyod, INTRODUCTION TO JURISPRUDENCE 114, 116 (Stevens,1979); Riiddall, J.G JURISPRUDENCE 21-22 (Butterworth, 1991) 46 Hon 49 Id. section 60 See , Ezeoke v Makarfi (1982) 3 NCLR 663, at 675 50 The Constitution, section 4 See also Constitution of Nigeria, s 52 (1982) 3 NCLR 325 53 see The Constitution, s 54 (2003) 13 NSCQR 39 55 Id 56 (2002) 10 NSCQR 1036, 1083-1084. 57 (2000) 4.S.C. (pt.) 1 58 Id 68 E. Michael Joye & Kingsley, I. INTRODUCTION TO THE 1979 NIGERIA CONSTITUTION, 221-223 (Macmillan Press Ltd., 1982) 69 The Constitution, section 5 70 NDIC V Nkem Ltd. (2004) 18 NSCQR 42, at 90-91 71 Section 14 (1) (b), Fundamental Objectives and Directive Principles of State Policy 74 For meaning of justice in its contemporary view, see Niki Tobi. Law, Justice and Democracy, in All Nigeria Judges Conference Papers, 1995, 61 ( MIJ Professional Publishers Ltd., 1996) 75 see also, M.T 87 Okitipupa Oil Palm Co. Ltd. V Hon. J.E. Jegede (1982) 3 NCLR 494, at 500 88 Hon 103 see, supra note 95 104 (2002) 3S.C 111 (2004) 20 NSCQR 99 112 Section 3 of the 1999 Constitution created thirty-six (Lagos State inclusive) states and seven hundred and sixty-eight local government areas in Nigeria