Introduction to Nigerian Legislation By Leesi Ebenezer Mitee
Copyright © 2008 Leesi Ebenezer Mitee
Nature and Hierarchy of Nigerian Legislation
“Nigerian legislation” refers to written or statutory laws enacted by competent legislative houses or authorities in Nigeria. Federal legislation is called “Act” (when made by the National Assembly in a democracy) or “Decree” (when promulgated by a military regime). State legislation is called “Law” (when made by the House of Assembly of a State in a democracy) or “Edict” (when promulgated by a Military Governor). Enactments made by Local Governments during a military regime or in a democracy are called “Bye-laws.”
Federal Acts supersede State Laws, which in turn supersede Local Government Bye-laws. The Constitution of the Federal Republic of Nigeria is the supreme law of the land, as enshrined in all the Constitutions (1960, 1963, 1979, and 1999) made since Independence on 1 October 1960. Like the others, section section 1 of the 1999 Constitution states:
1. (1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
(2) The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.
(3) 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.
This was succinctly declared by Justice Karibi-Whyte in Musa v Hamza (1982) 2 NCLR 229 at 250 (Court of Appeal) thus:
“It [the Constitution] is a document containing the fons et origo (i.e. the source and origin) of the laws and rights of its people. It is in a sense what in Kelsenian terminology may be regarded as the Grundnorm of the State. The Constitution is therefore aptly described as the supreme law of the land. This is because it is a law, which does not depend upon any other for its validity.”
He reiterated this same point at the Supreme Court in Adigun v Attorney-General of Oyo State (1987) 4 SC 272 at 344. However, the 1963 and 1979 Constitutions lost their supremacy following the military coup d’état that took place on Saturday, 15 January 1966 and Saturday, 31 December 1983. Both Constitutions were superseded by the Constitution (Suspension and Modification) Decree No. 1 of 1966 and the Constitution (Suspension and Modification) Decree No. 1 of 1984, respectively.Justice Karibi-Whyte, delivering the lead judgment of the Supreme Court in Labiyi v Anretiola (1992) 8 NWLR (Part 258) 139, articulated the hierarchy of legislation under military dictatorship that ruled Nigeria for nearly thirty years between 1960 when Nigeria had Independence and 1999. He said :
. . . Thus on the 31 December, 1983, the status of the laws in the order of superiority would seem to be as follows:-
(a) Constitution (Suspension and Modification) Decree 1984.
(b) Decrees of the Federal Military Government.
(c) Unsuspended provisions of the 1979 Constitution.
(d) Laws made by the National Assembly before 31/12/83 or having effect as if so made.
(e) Edicts of the Governor of a State.
(f) Laws enacted before 31st December, 1983 by the House of Assembly of a State, or having effect as if so enacted.
Categories of Nigerian Legislation
There are two categories of Nigerian legislation – main legislation (or principal legislation) and subsidiary legislation (also called subsidiary instruments). Main legislation, usually made by appropriate legislative bodies as mentioned above, refers to the parent enactment on a particular subject-matter. On the other hand, subsidiary legislation which has a lower status, as the name suggests, is usually made pursuant to provisions in the main legislation that delegate to certain specified bodies or persons the power to make appropriate rules, regulations or orders. For instance, the Petroleum Act (the main legislation governing the exploration and ownership of petroleum resources in Nigeria) has numerous subsidiary legislation, including Mineral Oils (Safety) Regulations; Petroleum Regulations; Petroleum (Drilling and Production) Regulations; Petroleum Refining Regulations; Crude Oil (Transportation and Shipment) Regulations.
The 1999Constitution specifies the items over which Federal, State, and Local Governments have legislative powers. Only the Federal Government can make laws in respect of the matters on the Exclusive Legislative List (section 4 of the Constitution and Part I of the Second Schedule). The Concurrent Legislative List contains certain items and the extent of Federal and State legislative powers over them (section 4 of the Constitution and Part II of the Second Schedule). There is no distinct Legislative List for Local Governments under the 1999Constitution, like other previous Constitutions. However, they are empowered by Local Government Laws of the various States to make Bye-laws in respect of the matters listed in the Fourth Schedule to the Constitution over which they can exercise their constitutional functions: Section 7(5) of the Constitution.
Supremacy of Legislation as a Source of Nigerian Law
Legislation is the supreme source of law in Nigeria, for many reasons that include the following:
- It provides the general framework for the entire legal system.
- At the apex of the hierarchy of legislation is the Constitution, which is the supreme law of the land in every democracy.
- Legislation has been used to annul decisions of Nigerian courts. For instance, the decision of the Supreme Court in Lakanmi v Attorney-General (West) (1971)1 UILR 201 was annulled by the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970. Recognising this position, the Court of Appeal held in Ibe v Onuorah (2001) FWLR (Part 62) 1844 at 1851 as follows: “Emphasizing the disapproval of a court reviewing its own decision, the Supreme Court, in ARCON v Fassassi (No. 4) (1987) 2 NWLR (Part 59) 42, 45 – 46, said that it has no jurisdiction, constitutional, statutory or inherent, to review its own order once it has delivered a judgment, expatiating that once a court has finally determined a case, it becomes functus officio; that where the judgment is given by a lower court, it can only be reviewed or corrected by a higher court and where it is given by the apex [Supreme] Court, it is final forever and can only be altered by legislation . . .”
- An enacted law may oust the jurisdiction of a court (a practice of the various military regimes), thereby making it impossible for the court to entertain any matter under it. In Jombo v Petroleum Equalisation Fund (2001) FWLR (Part 45) 651 at 663 the Court of Appeal declared that “. . . the judicial powers vested in the courts, though broad and all-embracing, are normally limited by its distinct and special jurisdiction and competence. For that reason, where a competent Decree/Act clearly ousts the jurisdiction of a court of law, it is safer for the court to surrender and bow to the wishes of the law makers and honourably decline jurisdiction.”
- Legislation may be used to abolish, repeal, or amend any rule of English law applicable in Nigeria. Reception clauses in many Nigerian enactments make English law a source of Nigerian law.
- Legislation may abolish repugnant customs, like the Abolition of the Osu System Law 1956 that criminalized the practice of the Osu caste system which discriminated against certain communities as outcasts.
- International treaties cannot apply in Nigeria, unless they have been specifically adopted or incorporated into Nigerian law, by virtue of section 12of the1999 Constitution. For instance, the African Charter on Human and Peoples’ Rights made in 1981 by member States of Organisation of African Unity (which was renamed African Union on Tuesday, 9 July 2002) was ratified and adopted as part of Nigerian law by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1983. The Charter came into force in Nigeria upon the commencement of the enabling Act.