INTRODUCTION TO CONSTITUTIONAL LAW
A constitution is a set of fundamental rules that determine how a country or state is run.
Almost all constitutions are “codified”, which simply means they are written down clearly in a
specific document called “the constitution”. However, some countries, such as Israel, New
Zealand and the United Kingdom, have “un-codified” constitutions which can’t be found written
down neatly in one particular place.
Law can be defined as a rule or a body of rules made by institutions, bodies and persons vested
with the power to make such rules which are binding and enforced among members of a given
state. It is the law that is legally created that can bind individuals and even the state itself.
According to professor Okuniga “Nobody, including the lawyer has offered, nobody including
the lawyer is offering and nobody including the lawyer will ever be able to offers definition of law
to end all definition”
Therefore, Constitutional Law is the body of law that defines the structure, powers, and
functions of government, and the rights and duties of citizens under a nation’s constitution. It is
one of the foundational areas of law because the constitution is the supreme legal authority in
most modern states. It is the law that deals with the fundamental principles by which the
government exercises its authority, the rights and duties of citizens and the provision of remedies
for unconstitutional acts.
Constitutional law can also be defined as the body of law that governs the interpretation,
application, and enforcement of a nation's constitution. It outlines the relationship between the
government and its citizens, as well as the distribution of power among different branches of
government. The key features of constitutional law are fundamental to understanding how a
country’s governance operates, ensuring that it functions within the framework of the
constitution and upholds democratic principles.
The main purpose of constitutional law is to provide structure within the federal
government, establish the relationship between the federal and state governments, and extend
rights to the citizens. While other types of law, like criminal or business law, rely on laws created
by state and federal governments to pursue justice, constitutional law provides the guidelines by
which those laws are created.
SOURCES OF CONSTITUTIONAL LAW
1. Legislation: This refers to laws that have been enacted by legislative bodies such as
parliaments or congresses. It refers to the laws made by the legislature, whether at the federal or
state level, in accordance with the powers granted by the constitution. These laws help to
implement and give practical effect to the provisions of the constitution. For instance, Acts like
the Electoral Act, the Code of Conduct Bureau and Tribunal Act, and others expand on specific
constitutional matters and guide how such provisions should operate in practice.
2. Common Law: This is a legal system that relies on judicial decisions to interpret and apply
laws. It originated in England during the Middle Ages when judges would make decisions based
on previous court cases. These decisions were then used as precedents for future cases, creating
a body of common law. The United States Constitution and most state constitutions rely heavily
on common law principles. In fact, many of the rights protected by the Bill of Rights are based on
common law concepts such as due process and self-incrimination. Over time, common law has
evolved through the interpretation of statutes and case law, leading to changes in society’s views
on certain issues. For example, the gradual abolition of slavery in the United States was largely
driven by common law decisions that declared slavery unconstitutional.
3. Judicial Precedents (Case Law): Judicial precedents are decisions of the courts, particularly
superior courts such as the Supreme Court, which interpret and apply constitutional provisions.
These judicial interpretations form binding authorities for future cases. Through this process,
courts clarify vague sections of the constitution and ensure that constitutional principles are
upheld. A notable example is Attorney-General of the Federation v. Abubakar (2007), where the
Supreme Court explained the extent of executive powers in Nigeria.
4. Customary Law: Customary law consists of the traditions, customs, and practices of the people
that have gained legal recognition over time. It influences constitutional arrangements, especially
in matters such as chieftaincy disputes, local governance, and traditional institutions. However,
any custom that is inconsistent with the constitution becomes void, since the constitution
remains the supreme authority over all other sources of law.
5. Historical Documents:The historical documents that serve as sources of constitutional law
include various charters, treaties, and other legal instruments from ancient times to modern day.
Some examples of historical documents that have influenced constitutional law include the
Magna Carta (1215), which established certain rights for English citizens; the English Bill of Rights
(1689), which limited the power of the monarchy in England; and the United States Constitution
(1787), which established the framework for government in the United States. Other important
historical documents include the Universal Declaration of Human Rights (1948) and the European
Convention on Human Rights (1950). These documents have been used by courts around the
world to interpret and apply constitutional principles. In Nigeria, for example, documents such as
the Clifford Constitution of 1922, the Richards Constitution of 1946, the Independence
Constitution of 1960, and the Republican Constitution of 1963 played significant roles in forming
today’s constitutional structure.
6. Judicial Interpretation: This is the process by which judges interpret and apply laws to
specific cases. It involves analyzing legal texts such as statutes, treaties, and court decisions to
determine their meaning and implications. This can involve examining the text itself, considering
contextual factors such as historical or social context, and looking at precedent set by previous
court decisions. The role of judicial interpretation in constitutional law is particularly important
because it allows for flexibility and adaptability in interpreting the Constitution. It also ensures
that the Constitution remains relevant and applicable to changing circumstances over time.
7. Treaties and International Agreements: These are important sources of constitutional law.
They are legally binding agreements between countries that establish rules and principles for
relations between them. These agreements can cover various areas such as human rights, trade,
environment, and security. They often provide a framework for resolving disputes and promoting
cooperation between nations. In some cases, they may also be used to amend or modify existing
treaties or agreements. Constitutions themselves can also be based on international agreements,
such as the European Union’s Charter of Fundamental Rights which is part of the EU’s legal
framework. Overall, treaties and international agreements play an important role in shaping
constitutional law at both national and supranational levels.
8. Supreme Court Cases: Supreme Court cases are landmark decisions made by the highest
Court. The Supreme Court is responsible for interpreting the Constitution and determining the
validity of laws passed by Congress. Its decisions are final and binding, setting legal precedents
that shape the interpretation of the law for years to come. Some notable Supreme Court cases
include Marbury v. Madison (1803), which established the power of judicial review; Brown v.
Board of Education(1954), which desegregated public schools; and Roe v. Wade (1973), which
legalized abortion nationwide.
9. Statutory Interpretation: Statutory Interpretation is the process of analyzing and
understanding statutes or laws. It involves interpreting the meaning of words and phrases used in
legislation, as well as determining the intent behind the law. There are several methods of
statutory interpretation, including literal interpretation, purposive interpretation, and textualism.
Literal interpretation involves applying the plain meaning of language used in the statute, while
purposive interpretation seeks to determine the underlying purpose of the law. Textualism is an
approach that emphasizes the importance of the actual words used in the statute over judicial
interpretations.
10. Separation of Powers: The separation of powers is a fundamental principle in many legal
systems that divides government power into three branches: executive, legislative, and judicial.
The executive branch enforces laws, signs bills into law, and carries out policies. It includes the
President, Vice President, and various departments and agencies.
The legislative branch makes laws and creates budgets. It consists of the Senate and House of
Representatives. The judicial branch interprets laws and resolves disputes. It includes the
Supreme Court, lower federal courts, and state courts. In addition to these branches, there are
also check and balances between them to prevent any one branch from becoming too powerful.
For example, the President can veto laws passed by Congress, but Congress can override the veto
with a two-thirds vote. Similarly, the Supreme Court can declare laws passed by Congress
unconstitutional, but Congress can also limit the jurisdiction of the court.
FEATURES OF CONSTITUTIONAL LAW
1. Supremacy of the Constitution: Constitutional law is based on the principle that the
constitution is the supreme law of the land. All other laws, policies, and actions of the
government must be in compliance with the constitution. If any law or action contradicts the
constitution, it is deemed invalid. See section 1(3) of the 1999 Constitution of Nigeria as
amended.
2. Separation of Powers : Constitutional law enforces the separation of powers among the three
branches of government: the executive, legislature, and judiciary. This prevents any one branch
from becoming too powerful and helps maintain a system of checks and balances. Section 4,5
and 6 of the 1999 constitution state the power of the legislature, executive and judiciary.
3. Rule of Law: One of the core features of constitutional law is the rule of law, which asserts that
no one is above the law, including government officials. This ensures that laws are applied equally
to all individuals, including those in positions of power.
4. Protection of Fundamental Rights: Constitutional law often includes a Bill of Rights or a Charter
of Fundamental Rights that protects basic civil liberties, such as freedom of speech, right to
privacy, right to equality, and the right to a fair trial. These rights are safeguarded against
violation by the government or any other authority.
5. Judicial Review: Judicial review is the power of the judiciary (especially the supreme court) to
review laws, policies, and actions of the government to ensure they comply with the constitution.
If a law or action is found to be unconstitutional, it can be struck down.
6. Federalism (in Federal Systems): In countries with a federal structure, constitutional law
defines the division of powers between the central government and regional governments (such
as states, provinces, or territories). It ensures that both levels of government have defined
powers and responsibilities.
7. Constitutional Amendments and Flexibility: Constitutional law includes mechanisms for
amending the constitution to adapt to changing social, political, and economic conditions. These
processes vary across countries, with some requiring a difficult, supermajority approval process
for amendnents.
8. Sovereignty of the State: Constitutional law asserts the sovereignty of the state, meaning that
the government has full authority within its own borders and is not subject to external
interference. This principle is especially relevant in foreign policy and international relations.
9. Implied Powers: Constitutional law often recognizes implied powers, which are not explicitly
mentioned in the constitution but are necessary for the government to fulfill its functions. These
powers allow for flexibility and adaptation to modern needs.
10. Separation of Church and State (in Secular Countries): Constitutional law often enforces the
separation of religion and government, ensuring that the state does not favor any religion over
another, nor does it interfere with individual religious practices.
11. Democratic Governance: Constitutional law typically upholds the principle of democratic
governance, ensuring that government authority is derived from the consent of the governed.
This principle mandates free, fair, and regular elections, as well as the accountability of
government officials to the people.
12. Public Accountability: Constitutional law establishes systems to hold government officials
accountable to the public. Mechanisms like parliamentary scrutiny, public inquiries, and
impeachment processes help ensure that public officials do not abuse their power.
In conclusion, Constitutional law forms the foundation upon which every modern legal and
political system is built. It defines the structure of government, allocates powers among its
organs, and protects the fundamental rights of individuals. By establishing principles such as the
supremacy of the constitution, the rule of law, separation of powers, and federalism, it ensures
that government authority is exercised responsibly and within defined limits.
Ultimately, constitutional law promotes stability, accountability, and justice in society. It guides
how governments function, how laws are made and interpreted, and how the rights of citizens
are preserved. Understanding constitutional law is therefore essential for anyone who wishes to
appreciate the workings of the state, safeguard their rights, and contribute meaningfully to
democratic governance.