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CONSTITUTIONAL SUPREMACY IN NIGERIA: AN OVERVIEW* 

 

Abstract 

The practice of constitutional democracy in Nigeria is a mixture of both observance and breach of supremacy of 

the Constitution. It is so in the sense that the dry letters of the Constitution of the Federal Republic of Nigeria, 

1999 are sterile, dormant or docile unless activated and brought to life by a judicial pronouncement of a court of 
law declaring certain executive or legislative acts as unconstitutional and therefore null and void. This means 

that where there is a breach of the Constitution unless and until an action is taken out challenging it, such breach 

persists albeit clothed with the toga of ‘constitutionality’ or being ‘constitutional’ and actually in some situations 

becomes the law until pronounced unconstitutional or inconsistent with the Constitution. This has given rise to a 

plethora of cases of unchallenged violations of the Constitution resulting to injustice sometimes against the 

federating States and violations of human and civil rights of the citizens. This surely does not represent the spirit 

of constitutional supremacy. In addition, it was found that there is a seemingly unending tussle of supremacy 

between constitutional supremacy and sovereignty of the people, the makers of the Constitution. This conflict is 

predicated upon where lies the ultimate supremacy. This research adopted the doctrinal methodology using 

primary and secondary sources of information and takes an examination of the concept of constitutional 

supremacy from both de jure and de facto perspectives. In the end, it is recommended among others that the 
Constitution being a legal document should have an auto operating clause that automatically renders 

unconstitutional, null and void any act that breaches it so as to maintain its supremacy and integrity at all times.  

 

Keywords: Constitution, Supremacy, Democracy, Nigeria 

 

1. Introduction 
In a democratic society, the Constitution binds and governs all institutions of government and the people ditto 

other statutes which derive their validity from the constitution. In Nigeria, the Constitution of the Federal Republic 

of Nigeria, 1999 has its binding and coercive powers expressly provided.1 By its overall binding powers, it 

acquires a status of supremacy over all persons in Nigeria including over other laws.2 Constitutional supremacy 

declares the constitution’s ability to establish a hierarchical primacy among various laws. It places the constitution 

at the top of the pyramid and the source of all other legal documents. It makes the constitution the highest and 
supreme law of the land otherwise the fundamental and organic law of the nation. This hierarchical primacy and 

constitutional rigidity are always activated in cases of conflict. In Marbury v Madison,3 where the Court held that 

ensuring the effectiveness of the Constitution as the supreme law of the land implies that the court should have 

the power to strike down legislative acts that are in conflict with the provisions of the Constitution. Supremacy of 

the constitution therefore is its quality, which positions it on top of all state institutions. Constitutional supremacy 

not only affects the rank order of legal norms but also the institutional structure of the state as it entails the 

subordination of the legislator.4 Therefore, constitutional supremacy is the position of the constitution 

undisputedly having the superior or greatest power or authority. 

 

2. Definition, Concept and Nature of Constitutional Supremacy 

Supremacy is the quality or state of having more power, authority, or status than anyone else; the state of being 
supreme.5 Constitutional supremacy is the system of government in which the law-making freedom of 

parliamentary sovereignty abandons to the requirements of a constitution as the constitution is supreme.6 This is 

so because the Parliament’s authority derives from the Constitution. It is the quality or state of the Constitution 

being the numero uno by having a binding force on all authorities and persons and the grundnorm from which all 

other laws in a political and democratic society derive its life and validity. Thus, the court has a duty to interpret 

ordinary legislations or statutes in a way or manner consistent with constitutional provisions, otherwise, where or 

when it is not possible, it must give legal precedence to the constitutional provisions in order to preserve its 

                                                             
*By Ogugua V. C. IKPEZE, PhD, LLM, LLB, BL, Professor and Dean, Faculty of Law, Nnamdi Azikiwe University Awka; 
and 
*Jude Tobechukwu OKORO, LLB, BL, LL.M, PhD Candidate, Faculty of Law, Nnamdi Azikiwe University, Awka; 
Lecturer, Department of Public Law, Faculty of Law, Federal University, Oye-Ekiti, Tel: +234 8064758398; E-mail: 
jude.okoro@fuoye.edu.ng. 
1 S 1 (1) Constitution of the Federal Republic of Nigeria, 1999 hereinafter cited as CFRN, 1999 
2 Ibid; (3) 
3 5 US 137 [1803] 
4 J Limbach, The Concept of the Supremacy of the Constitution, 64 MOD Law Review, I, 7 (2001) cited by G Romeo in The 
Conceptualization of Constitutional Supremacy: Global Discourse and Legal Tradition, German Law Review (Cambridge 
University Press, 2020) pp. 904 – 923 at p. 905 
5 Google.com accessed on 20 August, 2024 
6 <https://www.bartleby.com> accessed 20 August, 2024  

mailto:jude.okoro@fuoye.edu.ng
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supremacy and maintain the hierarchical primacy.7 In terms of legal thinking, the conceptual device of 

constitutional supremacy is ability to transform the normativity of the constitution into all-powerfulness.8  

 

The Courts in a plethora of cases have upheld the supremacy of the Constitution both as it relates to organs or 

institutions of government or the State and persons. Section 1 (1), (2) and (3) of the CFRN, 1999, provides for the 

supremacy of the Constitution.  By sub-section (1), no person or constituted authority is above the constitution 
and where any such person or authority acts outside the constitution, such an act would be declared 

unconstitutional, void and of no effect. In AG Lagos v A.G. Federation,9 it was declared that the actions of the 

president in withholding the federal allocation to Lagos State was in contrast to section 162 (5) of the Constitution 

and therefore they were unconstitutional, null and void. Similarly, in Inakoju v Adeleke,10 some members of the 

Oyo State House of Assembly purported to remove the Governor of the state. However, they did not follow the 

full provisions of section 188 of the Constitution. The Supreme Court declared their actions unconstitutional, null 

and void. By sub-section (3), it means that any law that conflicts with the provision of the Constitution shall be 

inapplicable to the extent of its inconsistency. This is also known as the blue pencil rule or severability rule.11 In 

Inspector General of Police v ANPP 12 the provisions of the Public Order Act which provided that a permit is 

needed from the Governor before people can assemble in public contrary to the provision of the fundamental 

rights of freedom of expression and association which is contained in sections 39 and 40 of the 1999 Constitution 
was declared unconstitutional and inconsistent with the Constitution. 

 

3. Distribution of Powers and Constitutional Supremacy   

The CFRN, 1999, creates various organs of government with assigned specific functions to them13 ditto various 

tiers of government,14 also with their respective specific areas of competences and shared competences and the 

relationships inter-se.15 Thus all constituted authorities in the exercise of their powers are limited to their areas of 

competences and shall not be allowed to exceed the powers allotted to them under the constitution, or to act in 

any manner inconsistent with the provisions thereof.16 Any exercise of powers otherwise than in accordance with 

the provisions of the Constitution shall be declared ultra vires or null and void and of no effect to the extent of its 

inconsistency with any of the provisions of the Constitution. For instance, the Parliament at the state level 

symbolized by the State House of Assembly cannot legislate on any subject matter in the Exclusive Legislative 

List pursuant to any purported exercise of its legislative powers.17 Any such act may be declared ultra vires18 in 
substance (substantive ultra vires) or procedure (procedural ultra vires) by the courts in the exercise of its power.19 

Nigeria is a Federation20 with a rigid and written Constitution. In a jurisdiction like ours, three things are quite 

visible- (a) the text of the Constitution is comprehensive, (b) the Constitution is normative and (c) constitutional 

arguments are a ruling-out move in litigation, meaning that whenever a constitutional argument is validly raised, 

it takes precedence over all other arguments and the court has to sustain it.21  

 

4. Key Purposes of the Supremacy of the Constitution 

a. Establishing a Legal Framework: The Constitution provides a foundational legal framework for 

governance, outlining the structure of government, the powers of different branches, and the rights of 

citizens. This ensures that all laws are grounded in a single, authoritative document. 

                                                             
7 Regina v. Director of Public Prosecutions Ex Parte Kebeline & Ors. [1994] 4 All E R, 801 
8 D P Kommers and R A Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 47 (Durham and 
London eds., 2012) cited by G Romeo, op. cit. at p. 906 
9 [2004] 18 NWLR (Pt. 904) 1 
10 [2007] 4 NWLR (Pt. 1025) 
11 The blue pencil rule doctrine is a legal principle that allows the legally valid enforceable provisions of the contract to stand 
despite the nullification of the legally void unenforceable provisions. It is the striking out of the illegal and unenforceable 
portion of a contract and retaining the rest of the contract and allowing it to be enforceable and legal. <https://en.wikipedia.org> 
accessed 20 August, 2024; Severability rule- A law that violates the Constitution may be invalidated by the courts in entirety 

or the courts may adopt the doctrine of severability to sever the illegal parts and save the rest of the statute; PP v Pung Chen 
Choon [1994] 1 MLJ 566. 
12 [2007] 18 NWLR (Pt. 1066) 457 
13 See sections 4, 5 and 6 which established the Legislature, Executive and the Judiciary with their functions respectively. 
14 The Federal, State and Local Government- a three-tier government system 
15 See Ss. 4 (2), (3), (4) (a), (6), (7), 5 (1), (2); Second Schedule Part I (Exclusive Legislative List) and Part II (Concurrent 
Legislative List). The Federal Government through the National Assembly legislates exclusive on the Exclusive Legislative 
List and shares legislative powers with the thirty six States who legislate on matters in the Concurrent Legislative List through 
their respective State Houses of Assembly. The State Governments legislates exclusive on all Residual matters. 
16 <https://lessonotes.com> accessed 21 August, 2024  
17 S 4 (3) and (7) (a) CFRN, 1999 
18 It is a Latin word that translates to “beyond the powers” and means acting or done beyond one’s legal power or authority. It 
is used in law to describe an act that requires legal authority but is done without it. 
19 S 6 (6) (b) CFRN, 1999; Marbury v Madison 5 US 137 (1803) 
20 S 2 (2) CFRN, 1999 
21 G Romeo, op cit., p. 908 

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b. Ensuring Consistency and Stability: It promotes consistency and uniformity in the application of laws 

and protects against arbitrary governance. This is crucial for maintaining order and predictability in legal 

and political systems. 

c. Protecting Individual Rights: The Constitution often includes a Bill of Rights22 or similar provisions that 

safeguard individual liberties against infringement by the government. This serves to protect citizens’ 

rights and freedoms, ensuring that they are not subject to arbitrary treatment. 
d. Providing a Mechanism for Conflict Resolution: The Constitution serves as a reference point for 

resolving disputes between different levels or branches of government. It provides a legal basis for 

judicial review, allowing courts to interpret the Constitution and adjudicate conflicts based on its 

provisions. 

e. Promoting Accountability and Limiting Power: This helps to limit the powers of government officials 

and institutions by ensuring they operate within the boundaries set by the Constitution. This is vital for 

preventing abuses of power and maintaining a system of checks and balances.23 

 

5. Supremacy of the Constitution and the Parliament 

The Parliament at the federal, state and local government levels is known as the National Assembly, 24 House of 

Assembly25 and Council, respectively.26 Parliamentary supremacy holds that the legislative body has absolute 
sovereignty and is supreme over all other government institutions, including executive and judicial bodies.27 It 

also holds that Parliament may change or repeal any previous legislation and so it is not bound by written law or 

by precedent.28 In Nigeria, the Parliament is not supreme. Its legislative powers are limited and controlled by the 

Constitution.29 There are two types of limits on Parliament’s powers- substantive limits and procedural limits. In 

the first, Parliament is forbidden from violating any provision of the Constitution unless expressly authorized.30 

For example, it cannot violate the fundamental rights enshrined in Chapter IV.31 Even at the state level, the House 

of Assembly must not violate its own laws either in substance or in procedure nor violate the Constitution through 

any of its legislative instrument or statute.32 In the second arm, in enacting laws or amending the Constitution, 

Parliament must comply with the prescribed constitutional procedures.33 Legislative acts will be nullified on 

constitutional grounds where: 

a. Where legislation offends the principle of separation of powers or the principle of federalism; 

b. When legislation is inconsistent with the provisions of the Constitution; 
c. When legislation is aimed at taking away individual rights guaranteed under the Constitution; 

d. When the legislature failed to comply with the procedure set down to doing a particular act.34 

 

From the above, the court uses judicial review35 as an instrument of ‘check and balance’ to invalidate legislation 

or legislative acts that violate the Constitution and declare them unconstitutional.36 Thus the legislature cannot 

enact any law that ousts or purports to oust the jurisdiction of a court or judicial tribunal.37 The judiciary has power 

in view of sections 4 (8) and 6 (6) (a) and (b) of the CFRN, 1999 to nullify inconsistent acts of the legislature with 

the Constitution or check excesses of the executive.38  

 

 

 

 

 

 

                                                             
22 See Chapter II CFRN, 1999 providing for Fundamental Rights particularly Ss. 33 - 43  
23 <www.quora.com> accessed on 20th August, 2024 
24 S 4 (1) CFRN, 1999 
25 S 4 (6), Ibid 
26 S 24 of the Imo State Local Government Administration Law No. 15 of 2000. Members of the Council are called Councillors. 
27 <https://en.wikipedia.org > accessed 20 August, 2024 
28 Ibid 
29 Ss. 1 (1) and 4 (8), Ibid 
30 S 9 (2), Ibid 
31 Ss. 33 – 43, Ibid 
32 S 4 (5) CFRN, 1999 
33 S 9 (2) and (3), Ibid.  
34 Ah Thian v Government of Malaysia [1976] 2 MLJ 112 
35 Judicial review is the power of a court to examine the acts of the other branches of government, lower courts, public or 

administrative authorities and uphold them or invalidate them as may be necessary in line with the relevant constitutional 
provisions which empower the courts to review such acts. 
36 Adegbenro v Akintola [1962] 1 All NLR 442; An example of such remedies is an order of certiorari 
37 S 4 (8) CFRN, 1999 
38 A Hamilton, The Federalist Paper No. 78, (Penn State Electronic Classic Series Publication), 2009, pp. 352 - 358 cited in I 
Imam, Judicial Activism in Nigeria: Delineating the Extent of Legislative-Judicial Engagement in Law Making, ICLR, 2015, 
Vol. 15, No. 1, p. 125; Dapialong v Dariye [2007] 8 MJSC 140 

http://www.quora.com/
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6. Supremacy of the Constitution in Military Regime 

The usual practice is that upon a successful coup d‘ etat, 39 the military immediately suspends or abrogates the 

Constitution either in part or in whole and consequently assert the absolutism/supremacy of their laws (Decrees).40 

This is done by promulgating the Federal Military Government (Supremacy and Enforcement of Powers) 

Decree.41 Section 1 of the said Decree affirmed and declared absolute powers to make laws for the Federation and 

supremacy of the Decrees of the Federal Military Government.42 The Court of Appeal in Commissioner for Local 
Government v Ezemuokwe43 held thus: ‘Decree No. 13 of 1984 re-enacts the supremacy of Decrees as the 

grundnorm or the organic law of the land. Therefore … Decrees cannot be challenged nor could their validity or 

invalidity be impugned in any court’. This position was cemented in Labiyi v Anretiola44 where the Supreme Court 

held Decrees to superior to even the unsuspended sections of the Nigerian Constitution. In this case, the court 

listed the hierarchy of laws in a military regime thus: 

a. Constitution (Suspension and Modification) Decree No. 1 of 1984 

b. Federal Military Decrees 

c. Unsuspended parts of the 1979 Constitution 

d. Laws made by the National Assembly before military takeover or having effect as if so made 

e. Edicts of State Military Governors 

f. Laws of the State House of Assembly before military takeover or having effect as if so made. 

 

7. Supremacy of the Constitution versus Sovereignty of the People 

Constitutional supremacy presupposes its operation in a democracy and it raises the question of where the ultimate 

authority/power in a country lies. Whether it is in the people who made it or in the constitution itself? This is 

borne out of the fact that when a constitution is made by the exercise of the people’s sovereignty, it binds the 

people that made it.45 Constitutional supremacy represents the highest form of expression of the sovereignty of 

the people.46  The CFRN, 1999, in section 14 (2) (a) bestows sovereignty on the people from whom government 

through the Constitution derives all its powers and authority. However, there is a conundrum on where the ultimate 

cum sovereign power lies in a political system. Put succinctly, between the constitution and the people- where 

does supremacy reside? The purport of supremacy of the Constitution is that the people are sovereign as provided 

in Section 14 (2) (a). It means that every power in the country answers to the people. Also, the preamble of the 

Constitution thus: ‘We the people … do hereby make, enact and give to ourselves the following Constitution:’ 
presupposes that same was made by the people for themselves in the exercise of their sovereignty. This is where 

the legal conundrum comes up in view of the fact that Chapter II of the Constitution titled ‘Fundamental 

Objectives and Directive Principles of State Policy are non-justiciable.47  

 

The principle of ‘non-justiciability’ is a doctrine that permits the courts to decline jurisdiction because the issue 

at hand is unsuitable for judicial determination.48 The non-justiciability of Chapter II49 under which section 14 (2) 

(a) falls finds support in Section 6 (6) (c) of the CFRN, 1999, which ousts the jurisdiction of the court as it relates 

to Chapter II. This appears as a constitutional fraud against the touted ‘sovereignty’ of the people. This fraud also 

negates and nullifies the claim in the preamble of the Constitution which asserts that same was made by the people 

for themselves,50 being a product of a military regime which was not the elected representatives of the people.51 

Undoubtedly, ‘consent’ of the people is a factor in constitution making is conspicuously absent in the 1999 
Constitution and clearly, this is not a case where the notion of implied consent of the governed can be applied for 

the makers of the 1999 Constitution were not the elected representatives of the people nor was it made under a 

constitutional democracy. It is trite that the legal enforcement characteristic enjoyed by the law is what lends it 

the force that compels adherence.52 When this force is however removed from any law, it renders such a law an 

                                                             
39 The term comes from French which literally means “stroke of state” or “blow of state”, <https://en.wikipedia> accessed 20 
August, 2024 
40 See The Constitution (Suspension and Modification) Decree No. 1 of 1966 and the Constitution (Suspension and 

Modification) Decree No. 1 of 1984 et al 
41 Decree No. 13, 1984.  See section 5 
42 Decree No. 1 of 1984 and Decree No. 107 of 1993 
43 [1992] 8 NWLR (Pt. 258) 139 
44 [1991] 3 NWLR (Pt. 615) 640; [1986] 1 NSCC 304; Federal Military Government (Supremacy and Enforcement of Powers) 
Decree No. 28 of 1987; The (Supremacy and Enforcement Powers) Decree No. 28 of 1970; Lakanmi v A. G. West [1971] 1 
UILR 210 
45 See the Preamble of the CFRN, 1999; Ss. 1 (1) and 14 (2) (a) CFRN, 1999 
46 S 14 (2) (a) CFRN, 1999 
47 S 6 (6) (c) CFRN, 1999 
48 Teng Chang Khim v Dato Raja Ideris [2014] 4 MLJ 12 
49 Chapter II is titled Fundamental Objectives and Directive Principles of State Policy from Sections 13 – 24  
50 See the Preamble of the CFRN, 1999 
51 It was made during the military regime of General Abdulsalami Abubakar on 5th May, 1999 
52 O M Atoyebi, SAN, An Examination of Chapter 2 of the CFRN, 1999, an article published online 23rd July, 2023, accessed 
20 August, 2024 

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image of mere toothless bulldog. The non-justiciable nature of Chapter II means that the Fundamental Objectives 

do not provide a strong legal basis for direct enforcement. The purport is that government’s compliance with these 

principles depends on political will and the accountability of elected officials rather than legal mandates.53  

 

However, for every general rule, there is an exception. The exception clause in section 6 (6) (c) thus: ‘…except 

as otherwise provided by this Constitution…’ enables the National Assembly to enact specific legislations that 
gives legal backing to any of the directive principles and any such legislation shall become justiciable.54 In Federal 

Republic of Nigeria v Aneche,55 Justice Niki Tobi observed: 

Section 6 (6) (c) of the Constitution is neither total nor sacrosanct as the subsection provide a 

leeway by the use of the words ‘except as otherwise provided by this Constitution’. This means 

that if the Constitution otherwise provides in another section, which makes a section or sections 

of Chapter II justiciable, it will be so interpreted by the Courts. 

 

It means that where a law is passed to implement a particular directive principle, individuals can challenge the 

government’s compliance with that law in court.56 This exceptive principle also seemingly applies in the field of 

enforcement of the Fundamental Rights provided in Chapter IV. Thus, where the implementation of the provisions 

of Chapter II results in the violation of Chapter IV, the courts tend to exercise jurisdiction over Chapter II. Thus, 
the inevitable and practical implication (though unintended) of this is to render Chapter II justiciable where the 

issues involve a breach or violation of Chapter IV.57 In A. G. Ondo State v A. G. Federation,58 the Supreme Court 

held, inter alia, that ‘courts cannot enforce any of the provisions of Chapter II of the Constitution except the 

National Assembly has enacted specific laws for their enforcement’.  

 

De Jure Sovereignty and De Facto Sovereignty 

It has been suggested that generally the power of the people can have no limits.59 However, Nwabueze60 argued 

that the assertion is true only in a de facto sense but not in a de jure sense where the people are bound by the 

constitution once adopted and it binds the people and operates as de jure limitation on their power. However, this 

does not take away their de facto power to put an end to the de jure limitation by way of a revolution or extra legal 

means.61 In view of the limitations of the law as an instrument of social change, the justification of a revolution 

can plausibly and objectively be founded in the face of a failure of the government in the administration of the 
constitution to meet their aggregate will and their perception of social justice and social progress.62  

 

There is a division among scholars who posit that sovereignty originates from the people. The division centers on 

the argument whether the people transfer their sovereignty to the sovereign or whether they retain their 

sovereignty. Scholars who hold the view that the people have transferred their sovereignty to the government 

invariably agrees that sovereignty is not divinely acquired. It means that sovereignty originates from the people 

but the only area of discord being whether the people after electing a government retain their sovereignty or not. 

If it is then agreed that sovereignty originates from the people, identification must be made of how the people pass 

or confer that sovereignty to the government. In other words, is any overt act required to show that the people 

have indeed taken this all-important step or is it to be assumed in some or all cases? If it is agreed that sovereignty 

originates from the people, what is the purpose for the conferment by them of sovereignty on the government? If 
the purpose fails or if the Government becomes destructive of them, do the people have any right to intervene or 

are they constrained in that regard by the fact they have allegedly transferred their sovereignty to the Government? 

The answers to these and more are to be found in an examination and proper appreciation of the notions or concepts 

of ‘Popular Sovereignty’ and ‘Consent of the Governed’. 

 

Popular sovereignty or the sovereignty of the people is the principle that the legitimacy of the state or government 

is created and sustained by the will or consent of its people, who are the source of all political power and 

                                                             
53 E Okon, The Environmental Perspective in the 1999 Nigerian Constitution, Environmental Law Review (2003) 5.4, pp. 
256- 278 cited by O M Atoyebi, SAN, An Examination of Chapter 2 of the CFRN, 1999, op. cit. 
54 Federal Republic of Nigeria v Aneche [2004] 1 SCM 36 at 78  
55 ibid 
56 See Item 60 (a) of the Second Schedule CFRN, 1999; A. G. Ondo State v A. G. Federation [2002] 9 NWLR (Pt. 772) 222; 
Olafisoye v Federal Republic of Nigeria [2005] 51 WRN 62 
57  Anthony Olubunmi Okojie v Attorney General Lagos State [1981] 1 NCLR 218 
58 [2002] 9 NWLR (Pt. 772) 222 
59 C H Mcllwain, Constitutionalism and the Changing World, (Ithaca, New York, 1939), p. 29  
60 B O Nwabueze, Ideas and Facts in Constitution Making (Ibadan: Spectrum Books, 1993), p. 29 cited in O E Nwebo Critical 
Constitutional issues in Nigeria, op. cit. p. 62  
61 Ss. 1 (2) and 14 (1) CFRN, 1999 
62 O E Nwebo, op. cit., 62 



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legitimacy. It is closely associated with republicanism63 and the social contract theory or philosophers.64. The 

doctrine posits that sovereign power is vested in the people and that those chosen to govern, as trustees of such 

power, must exercise it in conformity with the general will. Benjamin Franklin65 expressed the concept thus: ‘In 

free governments, the rulers are the servants and the people their superiors and sovereigns.’ After all, as warped 

as section 14 (1) and (2) (a) of the CFRN, 1999 is, it still provides that Nigeria shall be a State governed on the 

principles of democracy and social justice and concedes sovereignty to the people.  The question that arises is 
whether the people in the exercise of their sovereign powers or rights, can by popular choice overthrow the 

constitution or can the makers of the constitution unmake the constitution at will outside the means provided by 

the constitution? Can the people take the laws into their hands in order to effect a social or constitutional change 

otherwise than in a manner specifically provided by the Constitution? This question becomes pertinent in view of 

section 1 (1) and (2) of the CFRN, 1999. In answering this question, it can be argued with simplistic logic that 

since the constitution is a product of the people by virtue of their repository and sovereign power, they can unmake 

the constitution at will outside the contemplated provisions of the constitution. This position can be supported by 

the proposition that the law is made for the people and not the people for the law and by extension that the law as 

made by the people is for their protection and welfare and not to be used as instrument of their oppression or 

tyranny which incites revolt of the people against it. After all, the people are not obliged to owe obedience or 

allegiance to a legal system that has lost its legitimacy and has failed to meet their collective will, aspirations, 
concerns and failed to protect them. Accordingly, the supremacy of the constitution is itself subject to the 

provisions of the constitution and the people’s right guaranteed therein which includes the right to good 

governance. 

 

Section 1 (1) and (2) of the CFRN, 1999, emphasizes its supremacy and it outlaws any form of change or control 

of government otherwise than as provided. When juxtaposed with section 14 (1) and (2) of the CFRN, 1999, it 

become clears that section 14 which vests sovereign powers in the people is not justiciable but section 1 is 

justiciable in the event of a breach. In view of this, the people’s sovereignty cannot override the supremacy of the 

Constitution. However, this is where this legal or de jure submission ends. Where the government make 

constitutional change impossible, they make unconstitutional change inevitable by the repository sovereign power 

of the people.66 For the law to be meaningful, it must represent the aggregate will and social purpose of the people 

and be equally administered to serve the people otherwise it is regarded as having lost its social purpose.67  A 
Constitution that will endure must not depart too far from the volksgeist (spirit of the people). It cannot be a 

sanctuary or a safe haven for the people entrusted with the collective will of the people and who themselves are 

subject to the constitution while they violate and breach it by using it as an instrument to work oppression on the 

people or the governed. In such a situation, their legitimacy is lost and the people are not obliged to obey the 

command of the state sovereign for this will enable maintaining the working of the oppression against the people. 

Therefore, the people would be at least morally justified to demand for a change and in fact overthrow the 

constitution if necessary to bring an end to ceaseless oppression. The people as the repository and source of all 

power can in the exercise of their power in a de facto sense, resort to extra legal means to overthrow an oppressive 

regime.68 It is admitted though that the right of revolution is not legal in law, but international law recognizes it 

as a principle of law that a successful revolution begets its own legality69 and this takes care of the legitimacy 

issues that arise from a revolutionary change of government. A successful revolution is an internationally 
recognized method of changing a constitution or a government as is in itself is a law creating fact and the 

                                                             
63 Republicanism is the political belief that the best form of government is one in which citizens choose their representatives 
and leaders through free elections. <https://www.vocabulary.com> accessed   4 September, 2024 
64 Thomas Hobbes, John Locke and Jean-Jacques Rousseau 
65 Benjamin Franklin (2003) The Political Thought of Benjamin Franklin, ed. Ralph Ketchum Hackett Publishing, p. 398 
66 Ibid, pp. 60 - 61 
67 There are agitations for a new constitution or holistic amendment of the CFRN, 1999 by various religious, ethnic and socio-

cultural groups such as National Christian Elders Forum, Ohaneze Ndigbo, Middle Belt Forum, Arewa Consultative Forum 
and the Pan Niger Delta Forum because the CFRN, 1999 undermines true federalism; concentration of power and resources at 
the centre et al. The calls for change are aimed at addressing structural imbalances and ensure equity, fairness and justice. 
<https://wazam.net/news/2965812> accessed 2 September, 2024; The National Christian Elders Forum (NCEF) aligning itself 
with the Patriots Group, which held a conference on March 18, 2024 in Kaduna State, also called for a new Nigerian 
Constitution. The group stated that National Assembly’s repeated amendments to the existing Constitution should cease. 
Instead, legislators should begin crafting a new Constitution for Nigeria noting that after five alterations with no substantial 
positive change, the Assembly should start adopting the 2014 National Conference report and its draft Constitution. State-of-
the-Nation: Adopt 2014 confab report. <https://www.vanguardngr.com/2024/04/state-of-the-nation-adopt-2014-confab-

report-gani-lekwot-wigwe-tell-tinubu> Vanguard Online Newspaper of 11th April, 2024, accessed 2 September, 2024     
68 An example of the exercise of this sovereign power of the people in a de facto is the popular uprising that forced the Prime 
Minister of Bangladesh to leave office and flee into exile in August, 2024 and her government consequently collapsed. 
Similarly in 1986, the people of Philippines in the People Power Revolution or the February Revolution led to the departure 
of Ferdinand Marcos and ended his 20 years dictatorship and restoration of democracy. The non-violent revolution was a 
sustained protest between 22nd - 25th February, 1986 against regime violence and electoral fraud. 
69 O E Nwebo, Critical Constitutional Issues in Nigeria, op. cit., p. 66 

https://wazam.net/news/2965812


IKPEZE & OKORO: Constitutional Supremacy in Nigeria: An Overview 

96 | P a g e  

overthrown constitution stands either annulled or assimilated into the new constitution either in whole or in part.70 

The new constitution becomes the grundnorm (fundamental law). The above extra-legal means of changing and 

overthrowing a constitution finds realistic and practical support in the popular Arab Spring.71  

 

In the final analysis, when the society becomes dysfunctional, the need for change arises as a matter of necessity 

and indeed as of right even by revolutionary means. Such action becomes justifiable to stop the ceaseless 
subversion of the aggregate will of the people and save the society from collapse and advance the social purpose 

which represents the aggregate will of the people. Anything short would amount to the people aiding and abetting 

their destruction which is against human nature and instinct of preservation. In this light, it is argued that the 

supremacy of the constitution should be interpreted subject to the overall aspiration of the people and their 

perception and conception of social justice objectively determined. Hence, sovereignty belongs to the people who 

in the exercise of their sovereign powers can be justified, at least morally, in changing their government even by 

a revolution if it becomes necessary and compelling72 to preserve their existence73 and right to good governance. 

Hence the saying ‘he who gives can also take’.74 

 

8. Conclusion and Recommendations 

The Constitution is the yardstick by which every other law and conduct are tested for constitutionality and upheld 
on the one hand and declared unconstitutional and null and void and of no effect, on the other hand. It is a requisite 

of constitutional supremacy that all parliamentary and executive actions must always be based on the Constitution 

and through this way the constitution maintains its unassailable supremacy.  The Parliament should have a judicial 

or legal committee specially created and statutorily charged with the mandate of scrutinizing all proposed bills to 

ensure that they do not contain provisions that violate the Constitution or inconsistent with same before they 

introduced for debate or are passed into law.  Amending the Constitution to have a clause that will automatically 

render any law that breaches it or is inconsistent with it as unconstitutional, null and void upon proof of same 

without necessarily and always resorting to a court action and consequent judicial pronouncement. The Executive 

and Legislative arms of the government and their respective personnel should be regularly schooled and 

enlightened on the provisions of the Constitution such that it is akin to them taking judicial notice of such 

provisions. There should be created a Constitutional Court charged with the duty of subjecting to a constitutional 

test all legislations which has passed all the three stages of reading, before being passed by the Parliament and 
assented to prior to come into operation.  

 

 

                                                             
70 Ibid 
71 The Arab Spring or the First Arab Spring was a series of anti-government protests, uprisings and armed rebellions that 
spread across much of the Arab world, in the Middle East and North Africa in the early 2010s. It began in Tunisia in December, 
2010 in response to corruption and economic stagnation and also saw action in Egypt. In both countries, the authoritarian 

regimes were toppled. President Zine al-Abidine Ben Ali of Tunisia stepped down. It was known as the Jasmine Revolution 
in Tunisia. In Egypt, President Hosni Mubarak was forced to leave office.   
72 The doctrine of necessity supports this proposition where the law fails in or can no longer serve its social purpose. 
73 The right and instinct of self-preservation which is the highest in man and even animals cannot be regulated or limited on 
the altar of supremacy of the Constitution and laid bare for violation by the ruling class using the constitution as a shield or 
over smokescreen.   
74 In this case, it is the people; O E Nwebo, Critical Constitutional Issues in Nigeria, op. cit., p. 69 


