Supremacy Of The Constitution, Not Its Perfection By Ebi Robert

Section 1(3) on the other hand goes a step further to state that any law that is inconsistent with the provisions of the Constitution is null and void to the extent of its inconsistency. The above stated provisions are just like the verses of Psalm 23 to law students and legal practitioners alike. The supremacy of the constitution has been given judicial recognition in plethora of cases including the Supreme Court and this is a well established fact. The supremacy of the Constitution simply shows that the Constitution is a very powerful document in the current regime of the Nigerian Legal system. Within the lines of the provisions are words that are hardly contested for any reason whatsoever. While the judiciary is given the task of giving meaning to the words of the constitution by virtue of Section 6, it is expected that one should not say or do anything that will shake or threaten the supremacy of the constitution. But then, what really is the supremacy of the constitution? In other words, what does it really mean? Does the supremacy of the constitution also mean its perfection? This question is answered on the negative and this will be canvassed on three standpoints. (1) Grammatical/Typographical Error (2) Vagueness in intention (3) Lacunas

• Grammatical/Typographical Errors: Grammatical and typographical errors are two kinds of errors that can be easily recognized in writings. Grammatical errors are better ignored in writing (typing) than typographical errors (typing), at least for those who are masters of the Law of Concord. Legal practitioners are expected to be skilled in the elementary skills of drafting and sound use of grammar whilst drafting or doing any other legal writings. Thus the likelihood for the court to frown at grammatical errors made by legal practitioners in write ups is high owing to the fact that the court holds them in high esteem. Thus the Supreme Court in commenting on a letter written by a legal practitioner in the case of EIB Building Society Ltd v. Adebayo (2004) All FWLR (Pt 193) Pg 228 stated as follows: “finally (pg 366) remember that you will be judged by the letter you write. Although clients do not know whether you know the law right, they will know whether you spelt their name right. And many will know whether you made grammatical errors. If you want to be known as a competent lawyer, then write a good letter”

Typographical errors on the other hand ought not to be made but the fact remains that they are inevitable in some cases, for even an eagle eye may not be able to avoid it in some cases. This is why even drafted processes in court are allowed to be amended when there are issues of typographical errors. Whether or not there is a justification for typographical errors, typographical errors show that imperfection looms in writing. The Constitution itself is not exempted from typographical errors and an example will be given to that effect. Before the National Assembly was/is AN ACT TO ALTER THE FIRST SCHEDULE TO SECTION 3 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 TO REFLECT THE PROPER NAME OF SHONGOM LOCAL GOVERNMENT AREA OF GOMBE STATE. The explanatory memorandum of the Bill states that the Bill seeks to alter the Constitution of the Federal Republic of Nigeria 1999 (as amended) to reflect the right spelling of the name ‘Shongom’ in the Constitution of the Federal Republic of Nigeria. The bill states that the First Schedule to Section 3 of the Principal Act is altered by deleting Alteration of section 3 in Part 1 (STATES OF THE FEDERATION) the name “Shomgom” appearing under Local Government Areas of Gombe STETE and inserting the name “Shongom'” instead thereof. This bills shows that there was a typographical error in the Constitution itself which warranted the need for an amended. However, funny enough, the Bill itself that was intended to amend the Constitution was not also free from Error as the word “STETE” was typed in place of “STATE”. Errors in the Constitution are a universal thing. The American Constitution itself has faced similar fate of typographical and grammatical errors. This can be seen in Henry Bain’s Errors in the Constitution-Typographical and Congressional, Fall 2012 Vol. 44, No. 2, where cases like Jacob Shallus’ parchment’s errors and other typographical and grammatical were discussed.

• Lacuna: Lacuna is one thing that is inevitable in Law. Laws made at a given time may not cover or deal with every situation and circumstance at a time. This reconciles the dynamic nature of the law and why laws are amended to suit every given circumstance that presents itself. Judicial activism operates to fill in the gap. This open texture can be an intentional indeterminacy of the Law or also an unintentional indeterminacy of the Law. While an intentional indeterminacy can narrowly escape the criticism of the imperfection of the Law, unintentional indeterminacy may not and this is where the 1999 Constitution has missed it. The famous doctrine of necessity invoked to bring Goodluck Jonathan into power is an example of a space created by the Constitution because there was no provision in the Constitution empowering the National Assembly to pass the resolution to give power to then Vice President to Act fully as president.  Most recently is the case of the death of Prince Audu Abubakar where he died before being declared winner, though it was obvious he would win despite the fact that the election was declared inconclusive. The closest section was section 181 of the Constitution that deals with the death of an already declared winner before taking the oath of office. This caused controversy in the legal community as some argued that the second to the highest in the poll be declared winner. Others argued that a fresh election be conducted, while others also argue that the second in the APC primaries be allowed to step in believing that the votes go to the political party. This was a clear case of a constitutional lacuna as the constitution was silent on such a case.

It was this lacuna that led to the Bill known as a Bill for An Act to amend the provision of Sections 136 and 181 of the Constitution of the Federal Republic of Nigeria (AMENDED) 1999 and for related matters sponsored by Hon. Asabe Vilita Bashir. According to the Bill, Sections 136 and 181 of The Principal Act are altered to include new subsections (3) to read as follows: 136(3) if a presidential candidate dies during an election, or is unable for any reason whatsoever to conclude the election before declaration of result, the person nominated as his running mate and vice presidential candidate shall continue with the election as presidential candidate and if elected, shall after being sworn in as president nominate a new vice president who shall be appointed by the new president with the approval by a simple majority of the National Assembly at a joint sitting. 181(3) if a governorship candidate dies during an election, or is unable for any reason whatsoever to conclude the election before declaration of result, the person nominated as his running mate and deputy governorship candidate shall continue with the election as governorship candidate and if elected, shall after being sworn in as governor nominate a new deputy governor who shall be appointed by the new governor with the approval by a simple majority of the House of Assembly.

• Vagueness of Intention: Beyond the fact that Laws sometimes are enacted contradicting themselves, Laws can also be drafted in such a way that the initial intention in the making of the Law itself may end up being misplaced. This is what may amount to vagueness of intention as the intention of the law makers may not be clear, hence the help of the mischief cannon of interpretation in solving such issues. The Constitution of Nigeria is not exempted from such vagueness and an example shall be given.

To make this argument clearer, I shall reproduce an argument I made in one of my article, THE RIGHT TO FREEDOM OF ASSOCIATION AND THE NBA – A REJOINDER, which I made as a reply to the learned writer, Seun Lari Williams. In one part of the article, whilst answering the question: ARE ALL EXCEPTIONS TO THE GENERAL PROVISION IN A CONSTITUTION FOUND EXPRESSLY IN THE CONSTITUTION? I brought out what I will call a good display of vagueness of intention. Below is the argument: “The answer is no. By this, it means that the constitution may not expressly state an exception to the core, but create a direction. For instance, S. 34 of the constitution which deals with the right to dignity of human person creates exceptions to the part which deals with forced and compulsory labour. While S. 34 (2) (a) – (d) make reference to exceptions expressly provided in the constitution, S. 34 (2) (e) (ii) (iii) make reference to an Act of National Assembly that may be enacted to the effect of the exception created for ‘any labour or service that forms part of such compulsory national service in the armed forces of the federation and education and training of citizens of Nigeria.’ Here it can be seen that the exceptions stated above are not expressly provided in the constitution but however mentioned. This way, the spirit of the exception can be found in another Law expressly, although derived from the constitution. But then, can there be exceptions to the general provisions not expressly stated in the constitution itself? I won’t outrightly say ‘yes’. Perhaps, the answer may lie in the interpretation that can be given by the court to certain provisions that seem not to have exceptions. What are the spirits of their letters? Let us go on a little legal voyage. S. 34 of the Constitution speaks of the right to dignity of the Human person. The said right is divided into three phases. Viz: (a) no person shall be subjected to torture or to inhuman degrading treatment; (b) no person shall be held in slavery or servitude and (c) no person shall be required to perform forced or compulsory labour. While Part C of the said right is provided with exceptions in S. 34 (2) (a) – (e), part A and B are without any exceptions. For Part b, it is quite understandable as there is none, what then would be the legal argument of Part A with respect to ‘subjection to torture’? Can a Boxer who gets himself punched to stupor by another boxer turn around to say that he or she was subjected to torture and as such his or her right to dignity has been breached? Under the Tort Law remedy of Battery, the said hypothetical Act would amount to the defence of ‘Consent’. But can the aggrieved boxer who consented turn around and argue in court that his right is breached because the constitution did not create an exception known as ‘consent’ in Section 34 or any other section? That is left for the court to decide as to what really is the interpretation of the right.” The argument above explains it all. What really is the intention of the Law makers when drafting that part of the constitution? Did the Law makers draft the Law in such a way that there exists no exception on that part of the Law? I shall address that aspect of the Law in another article where I intend reviewing an argument put forward by the learned Silk, Femi Falana SAN on the expected execution of Reverend King. But before then, I am of the opinion that this and maybe one or two areas of the Constitution represent such problem of vagueness of intention. In all, it is this writer’s view that the Supremacy of the Constitution should not defeat our sense of reasoning. For instance, I gave an example of a LGA that was misspelled in the constitution. Though in the wording of the Constitution, it is the wrong name that is recorded, but in reality, we all know the right spelling. Do we now say that the wrong spelling suffices for the sake of Constitutional Supremacy even when we know that it was an error? Also, the gospel of the ‘unconstitutionality of action’ has made many commenters of the Constitution to refuse acting outside the constitution. By this, I mean, zealous actors at all time wish to be guided by the Constitution, thus doing anything not mentioned by the constitution has been argued to be unconstitutional. In my opinion, ‘acting outside the constitution is not unconstitutional, but acting contrary is’. In this context I mean, doing anything or act when the constitution is silent about it, is not unconstitutional but acting contrary to what the constitution has already said. Thus, ministers and commissioners in the temple and altar of justice must be bold to argue and create new principles, break barriers through judicial activism and as well take other extra legal actions when the need necessitates to cover-up lacunas, pending formal enactments; for the supremacy of the Constitution is never its perfection. Ebi Robert Co-Editor, TheNigeriaLawyer Email: ebi.fortune@yahoo.com]]>