Constitutional Supremacy

Constitutional Supremacy: It is a doctrine or principle which enunciate the idea that in every legal system of a country properly so called, the constitution is supreme over and above every other law within the legal system.

The history of the doctrine is not as clear as that of other constitutional concepts like the rule of law. However, one can trace the evolution of constitutional supremacy to the U.S.A. Supreme Court decision in the celebrated case of Marbury V. Madison 5 U.S 154 (1803), where the court declared the provision of the US Congress as void to the extent of its inconsistency with the US Constitution.

In Nigeria, the principle of constitutional supremacy first gained constitutional approval in 1960 under the Independent constitution of that year. The principle further gained judicial backing in the land mark decision of the Nigerian Supreme Court in Doherty V. Balewa (1961) All NLR 604 SC.

Constitutional sovereignty is the supremacy of the constitution, which is the express or written will of the people. In a constitutional democracy, the people are the sovereign, the final authority and power base of the country. It means the supremacy and bindingness of the constitution, which is the will of the people, on all authorities and persons in the country. The people make and own the constitution.

Section 1(1) of the constitution of the Federal Republic of Nigeria 1999 which is the Supremacy clause of the constitution provides:
“This constitution is supreme and it’s provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

And Section 1 (3) in completion of it, provides:
If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void”.
In the light of section 1, the authority and power of the constitution is not subject to any other authority, not even the power of the National Assembly to amend it.

The National Assembly can only amend the constitution in accordance with the procedure stipulated by the constitution. Any purported amendment otherwise made is null and void and of no effect whatsoever and cannot be part of the constitution.

Limit on Power of Parliament to amend the constitution – Constitutional Supremacy

By duly observing the procedure stipulated by the constitution, parliament or the National Assembly may amend any provision of the constitution, provided that parliament cannot repeal Section 1, of the constitution; which is the supremacy clause.

The reason is by the doctrine of constitutional sovereignty, the constitution is supreme and its provisions are binding on all persons and authorities in the country including parliament.
The doctrine of constitutional sovereignty or supremacy is clearly demonstrated in many decided cases. In A.G. Bendel State V. A.G. Federation & 22 Ors. In this case, Fatai-Williams CJN said:
In my view, a legislature which operates a written constitution in which the exercise of legislative power and its limits are clearly set out has no power to ignore the conditions of law making, that are imposed by that constitution which regulated its power to make law”.

And in the US Supreme Court case of Marbury V. Madison, John Marshall, Chief Justice of the United States on the supremacy of the constitution said:
Certainly, all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the legislature repugnant to the constitution is void”.

In the case of A.G. Ogun State & Ors V. A.G. Federation, in this case, Fatai-Williams JSC, on the doctrine of covering the field said that:
“Where identical legislations on the same subject matter are validly passed by virtue of their constitutional powers to make laws by the National Assembly and State House of assembly, it would be inappropriate to invalidate the identical law passed by the state House of assembly on the ground that the law passed by the national assembly has covered the whole field of that particular subject matter. To say, that law is “inconsistent in such a situation would not in my view sufficiently portray clarity or precision of language.

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