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Tambuwal: Whither Our Constitutional Conventions
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Aminu Tambuwal 
Anthony Idigbe
The ancient Greeks defined democracy as government of the people, for the people and by the people. However it is not always easy to involve all the people in government all the time. It will be inefficient and unwieldy. Consequently, the concept of democracy has been modified to mean responsible and representative government. By this arrangement the will of the majority of the people is expressed through election of representatives, to whom a select group of persons charged with government on behalf of the people is responsible even if this group is also elected by the people. In-built into a system of representative and responsible government are checks and balance conceived by Montesquieu as a mechanism to prevent abuse of power. Apart from dividing power into three (3) arms of government the system of checks may also divide power among different levels of government such as in a federation. Now, the constitutional framework even where there is a written constitution is usually tied together by certain unwritten principles and conventions. A convention is an unwritten practice which political actors feel they are bound to follow for a normative reason and which is not enforceable by the courts. Such conventions are recognised as being part of the constitution. Unwritten principles are values which form the fundamental framework of the written constitution.  To assist us with appreciation of the matter we shall discuss in  little detail the Canadian constitutional experience to enable us draw persuasive inferences  when we discuss the position under the Nigerian Constitution. Another reason for the foray into the jurisprudence of another country is the dearth of authority directly on the point in our jurisprudence.

In Reference re Secession of Quebec case the Supreme Court of Canada spoke exhaustively on Canadian constitutional law. They posited that the Canadian Constitution has full force of law with supporting principles and rules which include constitutional conventions and unwritten fundamental principles. The unwritten principles of the Canadian Constitution were identified as constitutionalism, federalism, democracy and rule of law/protection of minorities. These unwritten principles as distinct from conventions are enforceable as part of the Canadian Constitution. Constitutionalism refers to the obligation of government institutions and agencies to act in accordance with the Constitution. S.52 of The Canadian Constitution Act 1982 provides that any law which is inconsistent with the Constitution shall be invalid to the extent of the inconsistency. It follows that all government actions including legislation which are inconsistent with the division of powers provisions of s.91 and 92 of The Constitution Act 1867 or the Charter of Rights and Freedom are void to the extent of the inconsistency. By constitutionalism the actions of government are now limited by the Constitution. Rule of law on the other hand refers to the obligation of all persons including government to act in accordance with all laws and the Constitution. It follows that constitutionalism and rule of law are not exactly the same. The rule of law is a wider concept which requires all persons and government to act in accordance with all laws as well as the Constitution whereas constitutionalism requires only compliance with the Constitution.

On the issue of the status of conventions in the constitutional framework the Supreme Court of Canada in the landmark reference The Patriation reference confirmed existence of constitutional conventions and delimited its scope. The issue was whether there was a convention that the Federal government would seek the agreement of the provinces before patriation. The court held that there is a convention which is part of the unwritten constitution of Canada by which substantial agreement was to be obtained before patriation. Patriation was the process by which it was sought to terminate the requirement for Imperial parliament approval of amendment to the Canadian Constitution. The court in finding that the convention exists considered the previous practice in 22 instances of the Federal government consulting with the provinces before approaching the imperial parliament for amendment of the Constitution. This practice is recognised by the political actors and they are bound to follow them though not enforceable by the courts. Therefore it was found that patriation with consent of just two (2) of ten (10) provinces will breach the constitutional convention.

Based on the Patriation Reference decision the Prime Minister further consulted with the provinces and achieved substantial agreement that led to the patriation of the constitution by the Constitution Act 1982. S.52 of the Act now provides that the Constitution of Canada would be the supreme law of Canada and any law inconsistent with it is void. It also provides that the Constitution includes the Constitution Act 1867, Acts and orders referred to in its schedule and any other amendments. The use of the word includes is significant. Also by preamble of 1867 Act Crown practices are applicable and the court has recognised not just conventions but also unwritten principles of the Constitution. Further the 1982 Act now provides for amendment in sections 38, 41 to 46.

It is in the above context that we would discuss the provisions of the Nigerian Constitution and the implication of the defection of the Speaker of the House of Representative Aminu Tambuwal from the majority party in the House to the minority party. Are there unwritten principles that underpin our Constitution in Nigeria? If so, what are these unwritten principles and conventions and is there breach of them in the circumstances?

The preamble to the Nigerian Constitution establishes firmly that it is based on certain unwritten principles when it proclaimed loudly as follows:
We the people of the Federal Republic of Nigeria
Having firmly and solemnly resolve, to live in unity and harmony as one indivisible and indissoluble sovereign nation under God, dedicated to the promotion of inter-African solidarity, world peace, international co-operation and understanding.
And to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people.
Do hereby make, enact and give to ourselves the following Constitution:-.

In addition section 14 (1) of the same Constitution provides that the Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice. In our view the words “on the principles of freedom, equality and justice” as well as “democracy and social justice” import into our Constitution unwritten principles which underpin the Constitution. It follows that interpreting how our democracy works or should work require the courts to consider such principles as democracy, social justice, freedom, equality and justice. We dare add that indeed other principles such as constitutionalism, federalism, rule of law and protection of minorities are engrained in various provisions of the Constitution which espouse or establish those principles in our constitutional framework. The principle of constitutionalism is found in the provision of sections 1 and 13 of the Constitution. Section 1 is the supremacy clause which declares any law inconsistent with the constitution null and void and section 13 requires all government and private actions to comply with the constitution. Federalism is established in sections 2 and 3 of the Constitution. These sections not only declare Nigeria a federal state, but also, list the component units and their state capitals. Chapters 2 and 4 of the Constitution make provision for protection of human rights, civil rights property rights and minorities rights although Chapter 2 is not justiciable. Democracy otherwise referred to as majority rule is entrenched throughout the Constitution through provisions for  election of the legislative arm at state and Federal level as well as election of heads of the executive arms of government at both state and federal levels of government. Section 14 (2)c requires the participation of Nigerians in the government of the country in accordance with the constitution which then makes elaborate provisions for election of members of the different legislature as well as the executive heads. Not surprisingly the Supreme Court of Nigeria in the case of ATTORNEY GENERAL ONDO STATE v ATTORNEY GENERAL OF FEDERATION not finding any item in the Exclusive Legislative List of the Constitution to justify the power of the National Assembly to legislate on anti corruption rightly held that the Directive Principle in Chapter 2 of the Constitution to eliminate corruption was sufficient to justify the validity of the ICPC Act. There is no greater acknowledgement of the existence of unwritten principles in our constitutional framework.

Having established that there are unwritten principles under our Constitution the next issue is determination of what those principles or conventions are with respect to occupation of the position of speaker of the House of Representative. Section 50 provides as follows:

50. (1) There shall be:-
(a) a President and a Deputy President of the Senate, who shall be elected by the members of that House from among themselves; and
(b) a Speaker and a Deputy Speaker of the House of Representatives, who shall be elected by the members of that House from among themselves.
(2) The President or Deputy President of the Senate or the Speaker or Deputy Speaker of the House of Representatives shall vacate his office –
(a) if he ceases to be a member of the Senate or of the House of Representatives, as the case may be, otherwise than by reason of a dissolution of the Senate or the House of Representatives; or
(b) when the House of which he was a member first sits after any dissolution of that House; or
(c) if he is removed from office by a resolution of the Senate or of the House of Representatives, as the case may be, by the votes of not less than two-thirds majority of the members of that House. [Emphasis supplied]
As we pointed out earlier one of the unwritten principles underpinning our democracy is majority rule. It follows that if the Speaker cannot muster majority support of members he or she is to vacate the office. Where there is doubt as to whether the Speaker still has the confidence of the majority prescribed under section 50 the honourable thing to do is to subject him or herself to a confidence vote or to resign. These are core values of our democracy based on representative and responsible government. Now events such as cross carpeting from one party to the other can cast doubt as to whether the Speaker still retains the confidence of the members who elected him as their leader. Our analysis of the practice show that once the Speaker of the House of Representative, President of the Senate or Speaker of House of Assembly loses the confidence of their members they usually resign. The slogan that became quite popular is that every presiding officer must avoid stepping on the banana peel!  Also the practice is that it is only where the presiding officer fails to resign that section 50(2)c  is applied to remove the presiding officer by resolution of two-third of members. We are therefore not in doubt that the practice exists whereby presiding officers step aside if they have lost confidence of majority of their members. Political actors usually follow this practice and there is always a normative reason for the convention. However where they do not the court would usually not intervene as the matter is essentially political and the disputing parties one way or the other end up resolving the matter politically.

The argument that only strict compliance with section 50(2)c will result in removal of the Speaker begs the question which is essentially a political one and not a legal question.  Part of the unwritten principles of our Constitution is parliamentary privilege. By this concept the legislature enjoys certain rights necessary for them to perform their function of law making without interference by the Executive or the Judiciary. This privilege gives the degree of autonomy necessary to enable legislators perform their constitutional functions of law making and representing the people in the affairs of state. The power to select and remove their presiding officer is one of those rights. The courts cannot force a presiding officer on the House neither can the Executive. Also a presiding officer must subject his or herself to the will of the prescribed majority of the House always and if he cannot obtain it convention requires that he resigns or face the wrath of removal.

Luckily Tambuwal is a lawyer. The ball is in his court. The legislative business of the Nigerian state cannot be shut down so as to protect his position. Such an approach would be against the unwritten principles of our Constitution and would invite retaliatory political action by other political actors as we have seen with withdrawal of security details. The matter must be settled politically on the floor of the House. This is at the very essence of our democratic values and constitutional framework. The courts must keep out of this matter and force the parties to a political resolution of a political matter.

Chief Anthony Idigbe SAN FCIArb (UK) is the Managing Partner at PUNUKA Attorneys & Solicitors.

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