The Grundnorm in Nigerian Law
By Leesi Ebenezer Mitee
Obviously, Kelsen’s basic norm, which he termed “constitution in the transcendental-logical sense” is a mere fiction. Can we, therefore, end the quest for the basic norm with Kelsen’s “constitution” in the positive-legal sense”? Whether it be called the Grundnorm, basic norm, apex norm, or ultimate norm, what we are here interested in is to ascertain the “supreme law of the land” which is real, and neither meta-legal nor metaphysical.
I will briefly highlight the historical development in this regard in the Nigerian legal system during the periods of Nigerian democracy (civilian administration) and military dictatorship since Independence on 1 October 1960.
Grundnorm During Nigerian Democracy
Obviously, the Constitution of the Federal Republic of Nigeria is the Grundnorm under any civilian administration. It is the ultimate principle according to which all other legal norms in the State are established, receive or lose their validity. This claim is beyond controversy as it is fortified by section 1 of each of our Constitutions since Independence: 1960, 1963, 1979, and 1999. In addition, the ill-fated Constitution of the Federal Republic of Nigeria 1989(which was to have come into effect on 1 October 1992) declared its supremacy in section 1 thereof. Section 1 of the 1999 Constitution provides thus:
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.
The correct status of the Constitution as the Grundnorm was succinctly declared by Justice Karibi-Whyte in Musa v Hamza (1982) 2 NCLR 229 at 250 (Court of Appeal) thus:
“It 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, and Labiyi v Anretiola (1992) 8 NWLR (Part 258) 139.
On Friday, 21 January 2000, Uwaifo JSC delivering the leading judgment of the Supreme Court in Okulate v Awosanya (2000) 1 SC 107, upheld the supremacy of the 1979 Constitution. He adopted the position of Coker JSC in Savannah Bank of Nigeria Ltd v Pan Atlantic Shipping & Transport Agencies Ltd (1987) 1 NWLR (Part 49) 212:
“The question is now this: Whether section 8(1) of the Federal High Court Act  still retains the potency of a Decree which until the 1979 Constitution has superior force than the then Constitution? Is it a valid existing provision of the Act as defined in section 274(2)(a) having regard to the unlimited jurisdiction conferred on State High Courts by section 236 of the Constitution? Put differently, can an Act of the National Assembly overrule a specific provision of the Constitution? Section 1(3) of the Constitution says in such a case the Constitution shall prevail over the inconsistent provision of the Act or law.”
Historically, therefore, the various Constitutions of Nigeria from Independence were supreme during the periods specified:
- Constitution of the Federation of Nigeria 1960: 1 October 1960 – 30 September 1963;
- Constitution of the Federation of Nigeria 1963: 1 October 1963 – 16 January 1966;
- Constitution of the Federal Republic of Nigeria 1979: 1 October 1979 – 30 December 1983;
- Constitution of the Federal Republic of Nigeria 1999: 29 May 1999 – present day.
Grundnorm Under Nigerian Military Dictatorship
What is the Grundnorm under military administration in Nigeria? Is it still the Constitution? Obviously, the Grundnorm in a military administration is different from that during a civilian rule. We shall now consider the effect (on supremacy of our Constitutions) of the Decrees with which the military authorities came into power and changed the existing legal order, usually christened “Constitution (Suspension and Modification) Decree.”
On Saturday, 15 January 1966, a coup d’etat resulted in a successful military take-over of the Federal Government of Nigeria. Consequently, the Constitution (Suspension and Modification) Decree No. 1 of 1966 was promulgated to confer legitimacy on the new regime, and to suspend and modify several provisions of the 1963 Constitution. Section 1 of the said Decree provided thus:
1. (1) The provisions of the Constitution of the Federationmentioned in Schedule 1 of this Decree are hereby suspended.
(2) 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.
By incorporating the specific modification by the said Decree into section 1 (the supremacy provision) of the 1963 Constitution, the said section 1 was modified by adding a proviso as follows:
1. The Constitution shall have the force of law throughout Nigeria and if any other law (including the Constitution of a Region) is inconsistent with the Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency be void:
Provided that this Constitution shall not prevail over a Decree, and nothing in this Constitution shall render any provision of a Decree void to any extent whatsoever.
Consequently, the supremacy of the 1963 Constitution was impeached, nay, destroyed by Decree No. 1 of 1966, since it could not prevail over a Decree nor render any provision of a Decree void to any extent whatsoever.
But quite surprisingly, the Supreme Court took a different position in the celebrated case of Lakanmi v Attorney-General (West) (1970) 6 NSCC 143, the facts of which we now briefly rehearse. The property of the Appellants were confiscated pursuant to, inter alia, the Forfeiture of Assets etc. (Validation) Decree No. 45 of 1968. The Appellants contended that the decree was ultra vires the 1963 Constitution (then amended by Decree No. 1 of 1966). The argument of the Appellants for the invalidation of the said Decree was that the Military Government was not a revolutionary one, but that what happened in January 1966 was a “hand-over of government,” and therefore did not establish a new Grundnorm in the Kelsenian sense. The Supreme Court upheld the Appellants’ contention, and declared the 1963 Constitution the Grundnorm. The decision, with the greatest respect, appears to be invalid in the light of the said amendment of section 1(1) of the 1963 Constitution by Decree No. 1 of 1966.
Consistent with expectation, the decision in Lakanmi’s case was indeed a flagrant affront to the then Military Government. And just few days later, the Federal Military Government promulgated the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970 that annulled the said decision of the Supreme Court. The Decree proclaimed a very long preamble which formed a part of itself, providing that what happened on 15 January, and 29 July 1966 were military revolutions, “which effectively abrogated the whole pre-existing legal order,” thus making it abundantly clear that the Grundnorm in Nigeria during that period was the Constitution (Suspension and Modification) Decree No. 1 of 1966, and not the 1963 Constitution. Every military Government is a shame to society, as it is clearly unconstitutional.
Indeed, after a careful analysis of the Lakanmi’s case, one cannot but conclude that the Grundnorm in Nigeria during the period in question (17 January 1966 to 28 July 1975) was the Constitution (Suspension and Modification) Decree No. 1 of 1966 – a conclusion beyond controversy.
After the Constitution (Suspension and Modification) Decree No. 1 of 1966, the following Military Decrees constituted the Nigerian Grundnorm during various periods of military dictatorship:
- 17 January 1966 – 28 July 1975: Constitution (Suspension and Modification) Decree No. 1 of 1966;
- 29 July 1975 – 30 September 1979: Constitution (Basic Provisions) Decree No. 32 of 1975;
- 31 December 1983 – 25 August 1993: Constitution (Suspension and Modification) Decree No. 1 of 1984:
- 26 August 1993 – 16 November 1993: Interim Government (Basic Constitutional Provisions) Decree No. 61 of 1993;
- 17 November 1993 – 28 May 1999: Constitution (Suspension and Modification) Decree No. 107 of 1993;
Since 29 May 1999, the Nigerian Constitution has come to stay as the supreme law in Nigeria. This is what is expected in every democracy. There is no place for military dictatorship in today’s world. Although the Nigerian democratic experiment is still in its infancy, grappling with its basic tenets and structures, nothing should destroy this precious, universally acceptable foundation of the Nigerian legal system.
 The phrase, “supreme law of the land” is contained in the supremacy clause (2) of Article VI of the United States Constitution.
 Lloyd’s Introduction to Jurisprudence (1986), p. 365. According to Kelsen, the basic norm “is ‘meta-legal’ if by this term is understood that the basic norm is not a norm of positive law, that is, not a norm created by a real act of will of a legal organ.” (From Kelsen’s article, Professor Stone and the Pure Theory of Law (1965).)
 President Ibrahim Badamasi Babangida refused to cause that Constitution to some into force. This was due to his annulment of the celebrated June 12, 1993 Presidential Election.
 By virtue of section 3(2) of the Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1989, and section 331 of the 1989 Constitution promulgated therein.
 The date of commencement of the 1960 Constitution by virtue of section 1(2) of the Nigeria (Constitution) Order in Council 1960.
 The date just before the commencement of the 1963 Constitution (i.e. 1 October 1963).
 The date of commencement of the 1963 Constitution by virtue of section 166(1) thereof.
 The date, just before the commencement of Decree No. 1 of 1966 (i.e. 17 January 1966).
 The date of commencement of the 1979 Constitution by virtue of section 279(1) thereof.
 The date, just before the commencement of Decree No. 1 of 1984 (i.e. 31 December 1983).
 The Decree was promulgated and signed into law on 4 March 1966 by Major-General J. T. U. Aguyi-Ironsi, then Head of the Federal Military Government, Supreme Commander of the Armed Forces, Federal Republic of Nigeria. It was deemed to have come into effect retrospectively on 17 January 1966 by virtue of section 17(2) thereof.
 Referring to the 1963 Constitution. (See marginal note to section 1 thereof.)
 Modification contained in Schedule 2, under the heading “Additional Modifications of Particular Provisions.”
 The date of commencement of the Decree by virtue of section 17(2) thereof.
 The date just before the commencement of the 1979 Constitution (i.e. 1 October 1979) by virtue of section 279(1) thereof.