Supremacy of the Nigerian Constitution (Pols 112)

Introduction

In any constitutional democracy, the question of which law stands above all others is fundamental to the orderly functioning of the state. In Nigeria, that question is answered clearly and unambiguously: the Constitution is supreme. Constitutional supremacy means that no individual, institution, or government — regardless of its power or authority — can act contrary to the provisions of the Constitution without legal consequence. It is the foundation upon which the Nigerian state is built and the standard against which all laws, actions, and decisions of government are measured.

1999, Nigerian constitution 

What Constitutional Supremacy Means

By supremacy, we affirm that the Nigerian Constitution stands above all other laws existing within the Nigerian state. Any law that contradicts the provisions of the Constitution is to the extent of that contradiction, null and void. It is the Constitution that confers legitimacy and authority on all public officials and institutions. It defines the rights, privileges, and limitations of both citizens and the different tiers of government. In essence, the Constitution is the ultimate law of Nigeria.

This position is not a matter of convention or interpretation — it is explicitly stated in law. Section 1(1) of the 1999 Constitution provides:

"This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria."

Furthermore, Section 1(3) reinforces this by stating that if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail, and that other law shall be void to the extent of its inconsistency.

Why the Nigerian Constitution Is Supreme

The following are the key reasons and principles that establish and sustain the supremacy of the Nigerian Constitution:

1. The provisions of the Constitution are the ultimate expression of the will of the Nigerian people and therefore override all other legal instruments.

2. No other law — whether federal, state, or subsidiary legislation — can validly contradict the provisions of the Constitution. Where such a conflict exists, the Constitution prevails.

3. Any law that violates the provisions of the Constitution is automatically rendered null and void to the extent of its inconsistency, and the courts are empowered to strike it down.

4. The Constitution is the grundnorm — the basic law and foundation — of the Nigerian legal order, from which all other laws derive their validity and authority.

5. The Constitution gives legitimacy to all persons in authority. No person can lawfully hold or exercise public power except as provided for or permitted by the Constitution.

6. The Constitution defines and limits the powers of all tiers of government — federal, state, and local — ensuring that no arm or level of government exceeds its constitutional boundaries.

Powers of the Federal Republic of Nigeria

The powers of the Federal Republic of Nigeria, as defined by the 1999 Constitution, are distributed among the three arms of government: the Legislature, the Executive, and the Judiciary. Together, these arms collectively exercise the sovereign power of the Federal Republic of Nigeria, alongside other constitutionally recognised statutory bodies.

The specific powers of each arm are as follows:

• The Legislature (the National Assembly, comprising the Senate and the House of Representatives) is empowered to make laws for the peace, order, and good governance of the federation with respect to any matter included in the Exclusive Legislative List and the Concurrent Legislative List.
• The Executive (headed by the President) is empowered to initiate legislation, assent to bills passed by the National Assembly, and implement laws and policies of the federal government.
• The Judiciary (headed by the Supreme Court of Nigeria) is empowered to interpret the laws and the Constitution, adjudicate disputes, and determine the constitutional validity of legislative and executive actions.

This distribution of powers reflects the principle of separation of powers, complemented by a system of checks and balances that prevents any single arm of government from becoming dominant or acting arbitrarily.

The Exclusive Legislative List

The legislative powers of the Federal Government are set out in the Second Schedule of the 1999 Constitution, which contains the Exclusive Legislative List. This list comprises 68 items over which only the Federal Government — through the National Assembly — has the power to legislate. State governments have no legislative competence over matters on this list.

Some of the key items on the Exclusive Legislative List include:

1. Arms, ammunition, and explosives — the regulation, manufacture, and control of weapons and related materials.

2. Aviation — airports, air navigation, and the safety of aircraft, passengers, and goods.

3. Currency, coinage, and legal tender — the issuance and regulation of Nigerian currency by the Central Bank of Nigeria.

4. Defence — the protection of Nigeria's sovereignty and territorial integrity from external threats.

5. Military — the establishment, maintenance, and regulation of the Nigerian Army, Navy, and Air Force.

6. Passports and visas — the issuance and regulation of travel documents and entry permits.

7. Correctional services (Prisons) — now formally referred to as the Nigerian Correctional Service following the enactment of the Correctional Service Act 2019.

8. Creation of states — the process by which new states may be created within the federation, which requires a complex constitutional procedure including referendums and National Assembly approval.

9. Censorship — regulation over certain categories of public content and publications at the federal level.

10. Foreign affairs and diplomatic relations — the conduct of Nigeria's external relations, treaties, and representation in international organisations.

11. Award of national honours and titles — the conferment of national honours such as the Grand Commander of the Order of the Niger (GCON) and other state titles.

12. Nigerian Police Force — the establishment, organisation, training, and maintenance of the Nigerian Police Force as a federal institution.

It is worth noting that the concentration of 68 items on the Exclusive List — leaving comparatively fewer matters to state and residual jurisdiction — has been a central point of debate in discussions about true federalism in Nigeria. Many scholars, state governments, and civil society groups have long argued for a devolution of powers to the states to make Nigeria's federalism more balanced and responsive to local needs.

Conclusion

The supremacy of the Nigerian Constitution is not merely a legal formality — it is the bedrock of Nigeria's democratic order and the guarantee that government power is exercised within defined and accountable limits. By placing the Constitution above all persons, institutions, and laws, the Nigerian state affirms that it is governed by law and not by the arbitrary will of individuals. The effective realisation of constitutional supremacy, however, depends not only on its text but on the commitment of government institutions, the judiciary, and citizens to uphold it in practice. Where constitutional supremacy is respected, democracy flourishes; where it is undermined, the rule of law suffers.