Friday, 28 February 2014


 It is a well known fact that Britain has no written constitution .Thus all the political philosophies and practices, which are ordinarily recorded in a written constitution in other jurisdictions are regulated in Britain by what is known as Conventions. However, Conventions, properly speaking are not “unwritten laws” as only the Common Law can be perfectly described as such. Convention has been properly defined by Hood Philips[i] “as rules of political practice which are regarded as binding by those to whom they apply, but which are not laws as they are not enforced by the courts or by the houses of parliament”. In the view of Prof. K.C Wheare “convention is meant a binding rule, a rule of behaviour accepted as obligatory by those concerned in the working of the constitution”.
These conventions are understandings, habits or practices which have developed over a long period of time and have regulated the conduct of members of the sovereign power, the ministers or crown officials but in reality are not laws since they are not enforced by the courts. In England, the way the King or Queen performs his/her duties either in assenting to bills or appointing ministers, the behaviour of members of the parliament, the relationship between the Houses of Commons and The Lords and other related matters are either regulated by or have their roots in convention. Conventions are rules of political practice accepted by the people as binding and have been in existence from time past to regulate government practices.
Britain, as a colonial country, exported these conventions in written form into the constitutions of her colonies. Thus, it is therefore not strange to find the British conventions as provisions in the constitutions of the various countries that were formerly British colony[ii].
In Nigeria, especially during the operation of parliamentary system through the 1960 and 1963 constitutions, provisions were made for these conventions. The difference lies in the fact that by their enactment, they became legal and justiciable in the court of law. We will basically limit our reference here to the 1963 constitution (herein after referred to as the constitution)[iii].The following examples will suffice.
1.      In Britain, it is a convention that the Queen must appoint as the Prime Minister, the most influential leader of the party that commands the majority in the House of Commons. In Nigeria and by virtue of section 87(2) of the constitution, the president must appoint such a leader as the Prime Minister.
2.      In Britain, ministers are appointed by the Queen on the advice of the Prime Minister. Equally, by virtue of section 87(4) of the constitution, the President (who is a ceremonial head of state like the Queen of England) appoints ministers on the advice of the Prime Minister.
3.      The Queen perform her functions on the advice of Ministers .In Nigeria, by the provision of section 93 of the constitution, the President would perform his duties on the advice of Ministers.
4.      In Britain, it is a convention that before a bill becomes law, it must receive the Royal Assent. In Nigeria, by section 62 of the constitution, the President must assent to bills before it becomes law.
5.      It is also a convention in Britain that parliament must be summoned at least once in a year. In Nigeria, and by virtue of section 67 of the constitution, parliament must meet at least once in year.
6.      Also all members of the cabinet in Britain are collectively responsible for the actions and inactions of the government. In Nigeria and by virtue of the provision of section 90 of the constitution, all members of the cabinet were collectively responsible for all government actions.
7.      Conversely, it is a convention in Britain that each cabinet member is individually responsible for the actions of his ministry. In Nigeria, and under the section 91 of the constitution, every minister was responsible for his ministry.
8.      It is a convention in Britain that all ministers must form a council known as Cabinet. In Nigeria and by the provisions of section 89, all ministers must form a Cabinet.
9.      In Britain, and before the passage of the Parliament Acts[iv], whenever there was a conflict between the House of Commons and the House of Lords over a Bill, the decision of the House of Commons, by convention will override that of the House of Lords.[v] In Nigeria’s first republic, by virtue of section 64(2) of the constitution, the decision of the House of Representatives(which is the lower house like the House of Commons in Britain) will override that of the House of Senate.
10. In Britain, it is a convention that where a government is defeated on a major bill in the house or where the government lose the confidence of the house, it must either resign or call for a dissolution of the parliament. In Nigeria, section 36(10) of the Western Nigeria Constitution provided this kind of example.
Why British Conventions are Obeyed in Britain and Nigeria
It may of course be puzzling to a layman that despite their being unjusticiable, British conventions are obeyed in Britain even till date and were obeyed in Nigeria during the pendency of parliamentary system in the first republic. It must be noted that the major reason for this obedience is that people have taken these conventions to be sacrosanct.
Prof Dicey perfectly stated that “persistent breach of convention will lead ultimately to the breach of laws”. It is for this reason that the British Parliament has learnt over the years that convention though not justiciable must be obeyed. This is more so that where conventions are ignored and disobeyed; some untoward political consequences will follow. We will now examine some of these inevitable consequences.
Firstly, if the parliament did not meet at least once in a year, then the financial subvention for all the organs of government, particularly the Armed Forces will not be legally released. Also, if the parliament did not meet at least once a year, an important part of public revenue i.e. the income tax would not be lawfully raised and no public fund could be lawfully spent.
Secondly, if the Queen appointed as the Prime Minister somebody who is not the influential leader of the party with majority in the House of Commons or who did not enjoy the confidence of the majority of the House of Commons, all proposals from such a person would be defeated in the house. Where this kind of scenario happens, the house will have to fold up.
Thirdly, if a government after defeat in the house declined to resign or ask for the dissolution of the house, the members of the House of Commons could paralyse the business of the government by withholding supplies to it or refusing to agree to further disbursement of government funds. Even if such government succeeded in carrying on for a time in disregard of the parliament, it will cease to be in touch with the will of the electorate and eventually forfeit its goodwill.    
Applicability of British Conventions in Nigeria
From our discussion above, we must have realised that British conventions were included as actual provisions in the constitution of Nigeria first republic. By this, they left the realm of unjusticiability and became enforceable whenever they are breached. An example of this breach will suffice here in the case of Chief S.L Akintola V. Aderemi and ors[vi].The case was in respect of the interpretation of section 33(10) of the constitution of western Nigeria which provides for the removal of the Premier and ministers by the Governor. The section provides thus:
Subject to the provisions of subsection 8 and 9 of this section, ministers of the government shall hold office during the Governor’s pleasure.
Section 33(10)(a) further provides:
the Governor shall not remove the Premier from office unless it appears to him that the Premier no longer command the support of majority of the members of the House of Assembly.
It was on this constitutional basis that when in May 1962, the Governor received a letter signed by 66 out of the 124 members of the House of Assembly indicating that the Premier was no longer enjoys the confidence of the majority of members of the house and therefore should be removed. On May 21, 1962 the Governor exercising his constitutional power and in line with the letter of the 66 members of the house removed the Premier and sworn in as Premier, Alhaji Adegbenro, the deputy Premier.
This was the background of the case and plaintiff in the case who was the former Premier instituted the case to test the interpretation of the foretasted provisions. The plaintiff argued in court that the purported removal was unconstitutional in that there was no prior resolution or decision of the house as it is normally done under the British parliamentary system. The High Court had to refer two questions to the Federal Supreme Court for determination:
1.      whether a Governor could validly remove a Premier without a prior decision or resolution on the floor of the house.
2.      whether a Governor could rely on materials or information extraneous to the proceedings of the house.
The Federal Supreme Court, in a majority decision delivered by Ademola JSC held that the Governor could not remove the Premier without a prior decision or resolution of the house. But a member of the jury, Brett JSC gave a dissenting judgment and held that on the interpretation of that section, the Governor could validly remove the Premier even without a prior resolution on the floor of the house.
On further appeal to the Privy Council in Adegbenro V. Akintola[vii],the  Privy Council held that the Governor could validly exercise his power of removal under the western Nigeria constitution without a prior decision or resolution on the floor of the house indicating that the Premier no longer enjoy the support of the majority of members. On its rationale for this decision, the court held inter alia:
…the British constitution works by a body of understandings which no writer can formulate .Whereas the constitution of western Nigeria is now contained in a written instrument in which it has been sought to formulate with precision the powers and duties of the various agencies that it holds in balance. That instrument now stands on its own right and while it may well be useful on occasions to draw on British practice or doctrine in interpreting a doubtful phrase whose origin can be traced to Britain or to study decisions of the court of Australia or United States where federal issues are involved. It is in the end the wordings of the constitution itself that is to be interpreted and applied and these wordings can never be overridden by the extraneous principles of other constitution which are not explicitly incorporated in the formula that have been chosen as the frame of this constitution.
It is interesting to note that while the case was still pending before the Privy Council, the House of Assembly of the western region amended section 33(10) of regional constitution in such a way that the amendment rendered the Privy council’s judgment nugatory.
By the amendment, section 3 of the constitution of western region (amendment law) 1963 provides:
Paragraph (a) of the proviso to subsection 10 of section 33 of the constitution is of western Nigeria is hereby amended by inserting next after the words ‘unless it appears to him’ (a comma) and the words ‘in consequence of the passing of a resolution in the House of Assembly by a majority of the members of that house’.
The most unfortunate aspect of it all is that although the amendment was made in 1963, it was made to be retrospective from October 1960.One can briefly comment that the amendment of this provision confirms its ambiguity. It was also a signpost of our weakness or perhaps the inexperience of our politicians of the first republic to apply effectively the conventions which have been oiling the constitutional machinery of Britain for long without any hitch. The case was also important on its own right in showing that conventions under the Nigerian constitutions were not really conventions in the British sense since they are not justiciable.
Conventions under the Current 1999 Constitution
As stated above, convention in the sense already treated is alien to the 1999 constitution. In fact, that constitution made specific provisions for possible political interactions, responsibilities, duties and privileges of all organs created by that constitution. We make bold to say that the incorporation of its chapter II[viii] under the 1979 and 1999 constitutions cannot be described as conventions because they are not binding. They are mere aspirations.
However, there can be the inference that the holding of primary elections within political parties has become a convention. The NPN started it in 1979 and the PDP has continued in this line in the present republic. But then, the holding of primary election has now been incorporated into the Electoral Act and this has made it justiciable.
Another inference that can be made is the rotation among the geo-political zones of executive posts [ix].This is somewhat attaining the status of a convention in the Nigerian political space.
We conclude by stating that no matter the origin of a convention, it must be recognised as binding by the parties to whom it applies. Though it may lack the precision and clearness or express as a law, it must be recognized, known and understood with sufficient clarity that conformance is possible and a breach is immediately discernible. The British conventions are known and well recognized. They have oiled the constitutional machinery for long and a non-conformance is clearly unimaginable. Convention must also play an active constitutional role by way of giving efficacy to constitutional provisions.

[i] Conventional and Administrative Law 6th ed. Pp 104 -105
[ii]generally Commonwealth countries
[iii] it must be noted that Nigeria has had a number of constitutions after this and the current is the 1999 constitution, as amended.
[iv] Parliament Acts 1911-1949
[v]  this convention has been passed into law under the Parliament Acts 1911-1949
[vi] (1962) WNLR P. 185
[vii] (1963) 3 AER P. 544
[viii] Fundamental Objectives and Directive Principles of State Policies
[ix] presidency, vice presidency, governorship, deputy governorship etc

<script async src="//"></script>
<!-- legalisplatform_sidebar-right-1_AdSense1_160x600_as -->
<ins class="adsbygoogle"
(adsbygoogle = window.adsbygoogle || []).push({});

Wednesday, 19 February 2014



              The issue of what is the law has a defied a universal definition despite numeruos attempts by jurists. The term has also left the realm of the abstract to being used for human beings.Thus you tend to hear: I am the law. this phrase any of us have heard many times both in art works and in the real life. It does not matter if it's a dialogue set in the Soviet Union of Siberia, or ramshackle village in the desert of the American West or even in sub sahara Africa . The phrase sticks well both in the mouth of a medieval king as the head of the Turkish prison in Midnight Express. The phrase is always a climax, because it is usually issued by the Branch and not the root. When the holder of a Power makes that statement, then the conversation has reached the climax, to the top, to its highest point, because from that point the conversation has reached its moment of greater dramatic tension but also its climax.

               The claim I am the law is a contradiction. This is because the law was created precisely so that is not the will of a person who erected the last resort of order. The law therefore always has an external character who holds the power. The law comes as the commitment of Power than a subjective thing as the will of every moment that it becomes sort order of things. Therefore the law is something external, independent of that generated thereof  or that must enforce. The law requires, by its very nature and essence is an act of obligation, an act of self-commitment of Power. So the statement: I am the law, is to disregard the external character of law concept. Likewise it ignores the assumed binding character. The law requires everyone in every circumstance. Forces all as provided by law, in all circumstances listed in the law. The law subjects all, the law does not submit to anyone. So the above said boastful phrase which presupposes one supersedes the law smacks of  ignorance of the fact that the law is unsuplantable. Attempting to replace the law written by the individual will is go in reverse the path it has followed civilization and the development of understanding of how things should be.

             It would seem today that nobody in their right mind would not replace the lex by voluntas. Big mistake. Nobody wants to make this substitution absolutely, but there is that temptation to do same every time the power interests. By law, we make a second law without depriving of the power of the first, allow override of an obligation arising under the first law . The way to go is either to cancel the law, or create a second law that allows me to nullify the obligation of the former law when deemed appropriate.

              Externally maintain the look and appearance of lex, but under that outward appearance hides again voluntas. The fact that the law was written down by our ancestors was not a trivial act. The law passed and written through the hands of the legislature is a manifestation of the external, the same as the emanated and knows what he promised. And through commitment comes an obligation. The problem comes when the law emanated (and therefore committed) and write a second law that says I have committed, but that commitment is to be understood according to the second law that when I want to commit or not commit.

            This may seem an affront to reason, and it is. But what else is such a pardon? Arguably, there are special cases where it would be an attack on the reason and logic to apply the law in all its wholesomeness. But do not realize who defend that position that if a discretion to law practice holds, then one cannot complain that there is the force of law to escape. A pardon is an offence against the law. It is a violation of law covered. But make no mistake, it is a cover in voluntas robbing. Each pardon is nothing but an attack on the law. But the problem is not the number of pardons, the problem lies in the mere fact that the possibility of attack on the concept of law is accepted. Because we  accepted that possibility, it will be used right in the most unfortunate moment, in the most delicate and most times contrary to the intention of those who passed the possibility of pardon. But they cannot complain, because from the moment that we replace the written and objective formulation, the intention and decision, since that time we have left the clear and objective paths of written law and subjugated same to the political, financial convenience and social pressure.

            we have focused on the cases of pardon as these are a figure of frequent social scandal. Gerald Ford got the charge having agreed in advance that it would grant a presidential pardon of Nixon, Clinton just in the last week of term is alienated signing pardons. But although the pardon has more media attention, unfortunately the law has many back doors. This dialectic between lex and voluntas is unsurpassed. In a more civilized and rational society that is always latent than dialectic. And it will be dorminant for a powerful reason: the very idea of ​​foundation of the law you have. If the basis and foundation of the law is only the convenience, then heroism will become compelling expedient on the part of the rulers. It is true that the law seeks the convenience of all, but one thing is:  that's an end and another which is their ultimate foundation. For when the convenience of all collides with mine, I may have no basis of the law to shake off convienience. In principle, this reasoning may seem selfish, but it is logical. If carried to its logical argument, convenience as the foundation of law, the clear implication is that there are times when the law would be meaningless to anyone in particular.

           However, if the foundation of the law is the consideration that there is an objective and immutable order, then yes you can ask me a personal convenience beyond my sacrifices in a  logical way. In other words, the desirability of this as the foundation of law involves not require an absolute power to voluntas that folds to the lex mode. Normally, this does not usually cause problems because the voluntas of offenders usually  have no power. But when they have the Power of  voluntas, then we should not be surprised that leads to its logical argument of convenience.

            In essence, if everything in the end is really that convenience say what the law says, the entire legal system becomes a mere regulation to the one that must fulfill and comply. Convenience means the internal cancer of the intangibility of the lex. Only he who believes in it inviolability may believe in the lex.

            These sidewalk considerations of the concept of law may seem overly abstract and theoretical, but on the contrary, are embodied in countless social and personal concretions. According to the concept of law that one will have different mode of regulation; the way to make this law, and how to fulfill oneself. This tour we have done through the dialectic between voluntas and lex leads us to recognize that there are many legal theorists who consider the lex voluntas more like that as lex.Stated more clearly, in a cosmos in which all order was apparent, the result of a mere cultural convention, the law would only be a mirage, a precarious and artificial order, a wobbly island in the middle of a cosmos governed by law merely apparent order. Only the man who believes there is an absolute basis for the law can make a sacrifice for all the law and can ask their citizens to sacrifice in absolute terms by the law.

            The law must be inflexible. The law by its very nature is blind and unyielding. It is a force that is created once and left to its own device and authority. The problem stems from the extent to which the State believes in the same inflexible order of things. The law cannot ask for heroics if an entire society does not believe in the value of heroism. And heroism is only reasonable if there is an absolute value which carry it out. Hence the reasoning no doubt admits no absolute foundation for the inflexibility of law .there is no ability to ask for the  inflexibility of the law.

            As an example of this natural breakdown of law and how to apply it, we can argue for example, the recent case judgment of a judge  to a person who beat up another and he was sentenced to cleaning windows. The judge explained that he had imposed this penalty because observing this punishment the convict had to look again and again. I could give a long list of statements that seem unrealistic given the crimes, the terrible damage inflicted on innocent people. It could also give a long list of occasions when a Becket and Thomas More and many others blew their lives for the defence of the law, to defend the sanctity of the law against the will of law in disguise. But one need not argue lists of heroic moments and petty now. Right degradation is inevitable fruit of the conception of the order of things you have.
            We are slaves of the law not to be slaves to the will and whims of another man. The state that has respect for its laws is a state that has respect for itself. Conversely, the state that has no respect for its laws is a state that lack respect itself. The law; the rule of law is the order of reason. And all these sounds wonderful.But  the concept of law ultimately depends on other concepts. And ultimately, the logical argument of the first satellite of St. Thomas Aquinas on the ultimate foundation fiercely applies not only to the material world, but the world of concepts. Some depend on other concepts, concepts can also break, can also fall into the void if we go back a few logical steps behind. Eventually the concept of law is much more objective than some might imagine. All defend the law, but not all are fully aware of the extent to which the law is truly authentic and calculative

Hide Keyboard
Ctrl + Alt.Ctrl + Alt