Retrospective legislation are offensive to the principles of social justice. They are inimical to progress and unwarranted in any progressive country. They should be discouraged and disallowed at all times. They look like a victimising trap to catch some political opponents and they are indeed unsuitable to any country that recognises the rule of law. That is why Section 4(9) of the 1979 Nigerian constitution prohibits the making of them in relation to any criminal offence whatsoever.
But what we have in a military regime is that a law may be made to start operating from the past which is outside the period of its birth/statutory origin. See Decree No. 45 of 1968 which validated all actions done under Edict No. 5 of 1967 retrospectively (when edict No. 5 of 1967 (Western State) was successfully challenged as a legislative judgement in Lakanmi V. A.G. Western State of Nigeria.
Please note that although both edict No. 5 of 1967 and Decree No. 45 of 1968 were declared ultra vires, null and void by the Supreme Court of Nigeria yet this decision was set aside by Decree No. 28 of 1970 by the Federal Military Government (Supremacy and Enforcement Powers) Decree which in our own opinion has a retrospective effect and connotation.
However, one may suggest that Decree No. 105 of 1979 titled the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals etc.) has repealed Decree No. 28 of 1970 discussed above. Another area worthy of note are sections 36 and 43 of the Land Use Act where Tobi JCA in the Hand Book on the LAND USE ACT had this to say:
“If the original owners of the land performed any of
the acts under sections 36 and 43 before the
promulgation of the Act, they would not have
committed any office.”
Could the expression “at the time the offence took place” be construed to mean the date before the promulgation of the Act as it affects the rights of the original owners of the Land?
If this interpretation is accepted, then the provisions of the Act have retrospective effect and therefore could be said to contradict section 35(7)”.
Few Constitutional Concepts
Parliamentary Sovereignty
This expression “Parliamentary Sovereignty” is otherwise called “legislative supremacy” and it implies the fact that parliament has absolute authority to issue orders and enact laws that are binding on every person within the area of its jurisdiction. These laws or orders when made are obligatory on the citizens and cannot be challenged or abrogated by any arm of the government.
Parliamentary sovereignty is a borrowed relic of the English system of government which became operative as a result of the conflict between the crown and the parliament in England.
Supremacy of parliament is therefore recognised in any country that is having no written constitution. It therefore means that any elected body of men called the parliament can pass any law on any topic which affects the interest of persons.
Please note that the word “Parliament” has many names in many countries. In Britain for example, parliament includes both the House of Commons, the House of Lords and the Queen. In the United States of America, parliament is the Congress; in France for example, parliament is called “the National Assembly” and in Nigeria, Parliament is made up of the House of Representatives, the Senate, and the President of the Republic in the 1979 and 1999 Federal Constitutions of Nigeria.
Because parliament is supreme, it can therefore make and unmake, it can legalise illegality and in some occasions it can pass laws which originally were meant for men to include women. Thus, no arm of the government can control a parliament in its discretion hence whenever the parliament errs; nobody has a voice on the matter for it is the parliament itself that can correct its own errors and no one else.
The supremacy of parliament means therefore that any law enacted by the parliament overrides any form of law. Parliament is very powerful and supreme because it can by itself, extend or shorten its own life; and as a glaring example, the British Parliament extended its life span twice during the two world wars.
However certain limitations are placed on the law making power of parliament in England. One is that no parliament can make any law which would bind its successors. Put in other words “no current parliament can legislate to bind its successor” as it was decided in the case of Ellen Street Estate Vs. The Minister of Health which is in line with the decision reached in Vauzhall Estate V. Liverpool Corporation. Another restriction on parliamentary supremacy is that a parliament can only legislate within its legitimate jurisdiction. Thus authority cannot extend beyond its realms.
The Position of Sovereignty in Nigeria
Parliamentary sovereignty does not exist in Nigeria and in its place what we have is the sovereignty of the Nigerian Constitution. This is so because Nigeria has a written constitution and as such superiority is given to the constitution other than the parliament.The same position obtains in Canada, United States of America, Zambia, Australia and other countries that have rigid or written constitution.
Therefore, every power in the legislature, judiciary, executive and so on is being controlled by the obtaining constitution.
This argument is fortified both by the 1963, 1979 and the 1999 Constitutions of Nigeria. Chapter one section 1 of the 1963 Republican Constitution of Nigeria states as follows:
This Constitution shall have the force of law throughout Nigeria and, subject to the provisions of
section 4 of this Constitution, if any other law (including the Constitution of a Region) is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void. In the same vein chapter one Part 1
section 1(1) of the 1979 Constitution of the Federal Republic of Nigeria talks of the supremacy of the Constitution where it provides as follows: This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
Section (2) The Federal Republic shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.
Section (3)
If any other law is inconsistent with the provisions of this Constitution, this constitution shall prevail, and that other laws shall to the extent of the inconsistency be void.
Thus the supremacy of the constitution is protected from erosion by the authority of an independent judicial body as it was decided in the case of Doherty V. Balewa where the plaintiffs successfully challenged the Commission and Tribunals of Inquiry Act 1961 No. 26 as being unconstitutional by some sections contained thereof. Hence the Tribunal and Commission of Inquiry Act 1961 was said to have exceeded the power of Parliament under the constitution. This, in effect, confers supremacy on the constitution and not on the Parliament; and the decision reached in this case is similar to that of Bribery Commissioners Vs. Ranashinghe.
The supremacy of the constitution therefore means that the constitution binds all persons within the state, that it overrides all laws in the state and that all laws and all acts of all the arms of the government do derive their validity from the constitution.
However, it must be noted that during emergency, like in a military take-over some provisions in the constitution may be abolished. This is what happened in Nigeria during the Military rule in 1966 when Decrees were made to override the constitution as it was contained in Decree No. 1 of 1966 Section 1(2) in Nigeria.
However, you should note that for the supremacy of the constitution to have proper meaning and backing, the court must of necessity have power to pronounce on the validity of the government because it is part of the functions of the judiciary to pass judgements on the validity of acts, omissions, and the decisions of the executive with all other arms of the government (including the administrative tribunals) so that considerable opportunity will be afforded the citizens in the protection of their rights.
But the power of such courts may be ousted as discussed earlier during the Military rule for instance, section 6 of the Constitution (suspension and modification) Decree of 1966 provides as follows:
…….any decision whether made before or after the commencement of this Decree by any court of law in the exercise or purported exercise of any powers under the constitution or any enactment of law of the Federation or of any State which has purported to declare or shall hereafter purport to declare as invalid the provisions of any Decree or of any Edict(in so far as the provisions of the Edict are inconsistent with the provisions of a Decree) or the incompetence of any of the governments in the Federation to make the same is or shall be null and void and of no effect whatsoever as from the date of the making thereof.
Similarly Decree No. 28 – The Federal Military Government (Supremacy and Enforcement Powers) Decree, 1970 has made it clear that a Decree is the supreme law of the land under the military regime.
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