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.
Conclusion
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="//pagead2.googlesyndication.com/pagead/js/adsbygoogle.js"></script>
<!-- legalisplatform_sidebar-right-1_AdSense1_160x600_as
-->
<ins class="adsbygoogle"
style="display:inline-block;width:160px;height:600px"
data-ad-client="ca-pub-4942889057938603"
data-ad-slot="3674911175"></ins>
<script>
(adsbygoogle = window.adsbygoogle || []).push({});
</script>
