Home Constitutional Law II The Constitution under the Military

The Constitution under the Military

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The 1966 Coup d’etat led to the abrogation of the supremacy of the 1963 Constitution. For example, Decree No. 1 of 1966 tagged Constitution (Suspension and Modification) Decree 1966 provided: “Subject to this and any other Decree the provisions of the Constitution of the Federation which are not suspended by subsection 1 above shall have effect subject to the modifications specified in Schedule 2 of this Decree”. The provision to section 1 in Schedule 2 read: “Provided that this Constitution (the Republican Constitution 1963) shall not prevail over a Decree and nothing in this Constitution shall render any provisions of a Decree void to any extent whatsoever”.

In 1983 when the Military terminated the civilian government in power, a Decree similar in intendment was promulgated. Since 1983, Nigeria has had various Decrees suspending or modifying various sections of the 1979 Constitution. Of particular importance is the Constitution (Suspension and Modification) Decree 1993 otherwise called ‘Decree No. 107’. Its section (1) provides: “The Constitution of the Federal Republic of Nigeria as suspended by the Constitution of the Federal Republic of Nigeria (Suspension) Decree 1993 is hereby restored and amended as set out in this Decree”. Its sub-section 3 states that “Subject to this and any other Decree made before or after the commencement of this Decree, the provisions of the said Constitution which are not suspended by subsection (2) of this Section shall have effect subject to the modifications specified in the Second Schedule to this Decree”.

Section 5 of this Decree takes out of any court an inquiry into the validity or otherwise of a Decree or an Edict. It states: 

“No question as to the validity of this Decree or any other Decree, made during the period 31st December, 1983 to 26th August, 1993 or made after the commencement of this Decree or of an Edict shall be entertained by any court of law in Nigeria”.

Section 15 of the Decree establishes the Advisory Judicial Committee whose functions among others include rendering advice to the Provisional Ruling Council on the appointment of the Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Courts of the States and of the Federal Capital Territory, the Grand Khadi and other Khadis of the Sharia Court of Appeal of the States and of the Federal Capital Territory, Abuja as well as President and other Judges of the Customary Court of Appeal of the States.

In the first Schedule to the said Constitution are contained various amendments to the mode of appointment of the Justices and Judges of various courts, original jurisdiction for the Federal High Court, the High Court of the Federal Capital Territory, Abuja, establishment of a Sharia Court of Appeal and Customary Court of Appeal for Abuja and so on. It is necessary to state that by virtue of this Decree, the Federal High Court has been empowered to handle matters or suits against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.

By virtue of the said Decree 107 of 1993, section 258 of the constitution has been extended to include sub-section 4 which states thus:

“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-

compliance with the provisions of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof”.  The implication of the amendments is that in the event of any conflict between the provisions of the constitution and any Decree, the Decree takes precedent.

The Judiciary is the third organ or arm of government. This arm of the government has been regarded as the last hope of any man. Notwithstanding the fact that it is an arm of government, it is usually advocated that it must be independent of the executive and Legislature so as to ensure impartiality of decisions. For example, section 36 of the 1999 Constitution, also identical with section 33 of the 1979 Constitution provides:

“In the determination of his civil rights and obligations, including any question or determination
by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in suchmanner as to secure its independence and impartiality”.

The Constitution has guaranteed the existence of the judiciary in recognition of the fact that a free, impartial and independent Judiciary is a necessity to a virile judicial system especially in a developing country like Nigeria.

CONCLUSION

The judiciary as a constitutionally provided arm of government has the unique functions of adjudication and interpreting laws. In this process, it enforces the rights of all within the jurisdiction.

SUMMARY

In this module, you have learnt about the judicial system of Nigeria. You have also learnt about the hierarchy of courts in Nigeria.

TUTOR-MARKED ASSIGNMENT

To what extent does the constitution guarantee the freedom of the judiciary in Nigeria?

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