This paper examines judicial review and judicial power in Nigeria under the 1999 Constitution in relation to the constitution itself and in relation to the political branches of government. This is essentially to locate where lays supremacy between the branches and the judiciary particularly the Supreme Court with its final appellate jurisdiction. Judicial review and supremacy of the judiciary had been of recurring academic discuss in some jurisdictions with written Constitutions, particularly the United States from where Nigeria largely borrowed its presidential constitutionalism. This thus suggests that there is a need to examine the controversy within the context of Nigeria’s experience; is it really in the Constitution that creates branches of the government and that is proclaimed to be supreme over all authorities including the judiciary? Is it in the judiciary whose oversight function cuts across the political branches and whose interpretative decisions are binding on the constitution itself and the other branches? Is it in the executive that appoints and removes Justices of the court subject to confirmation by the Senate, or is it in the legislature? The paper argues that the overriding effect of the judicial power of the Supreme Court over all persons and authorities including the Constitution puts the judiciary in supreme position, that being the natural consequence of the power so vested in the judiciary by the “People Themselves.”
The Constitution is a document ordained usually by the people setting out the relationship between the people and the three organs of government on the one hand and between the organs themselves on the other hand. It is important to note from the outset that the constitution, in a normal constitutional setting,1 reflects the wishes and aspirations of the donors of the constitutional powers as contained in the document. The constitution, pursuant to the aspirations and wishes of the donors of its powers, creates the structures of government for the actualization of those goals.2 The structures with their substructures are political and therefore represent the constitutional arrangement put in place to ensure peace, order and good government.3 The document thus is the positivisation of the ideas, norms and normative concepts that the people, either directly or indirectly through their representatives or delegates at the appropriate or designated forum for that purpose, have adopted as the guiding rules between themselves, themselves and their government and between them and the external world.4 It may not be possible, at least in modern societies, for all adults to gather together at a forum for deliberations on the outlook of what they intend to be their constitution.5 For this reason, there may be no direct constitution, but an indirect constitution as distinct from an imposed type. This is typical of a written constitution that must also be distinguished from a formal constitution. There is a marked distinction between a positive and a formal constitution.6 The formality of a written or a positive constitution does not depend on the fact that it is written or that it is positive constitution. It all depends on the fact whether the constitution is or not subject to a superior or higher authority. The authority is not among the ones created by the constitution, it is superior to the constitution itself and it can be located outside the constitution, but its impact must as of necessity be felt in the constitution. That is, all organs created by the constitution must be guided in the exercise of the powers positively granted them by the principles of the superior, higher law or authority.7 That is the principles of natural law; justice, equity and fairness. These again translate to reasonableness, legality, good conscience, good...