THE GRUNDNORM IN NIGERIA'S CHANGING REGIMES N. M. Abdulraheem (Mrs.

) INTRODUCTION The issue o where the Grundnorm lies in Nigeria is generating much controversy among Nigerian legal luminaries. This is not surprising for what constitute the Grundnorm of a legal order has always generate heated controversies in the legal science. Grundnorm owes its exercise to Hans Kelsen . Whilst most of the justice, law and society lawin the historical perspective or law authoritarian perspective, kelsen revolted against this idea. He create a pure science of law stripped law of what he called irrelevant materials. Law, he says, must be separated 1 Kelsen refused to define law as a command as Austin did, because such a definition introduces subjective and political

c o n s i d e r a t i o n s . Kelsen wanted his theory to be truly objective. To him, law cannot be defined in terms of justice because there are so many rules which may be unjust and yet do not cease to be law, To kelsen justice is an irrational idea. 2 Kelsen believed that of law must deal with law as it is and not as it ought to be hence the theory of law must be free from politics, history, sociology, ethics. It is from this attitude that he developed his pure science of law.3 Kelsen believed that ethics is a purely subjective field where no objectivity is possible and was firm on the need separate the study of law from ethics. or political or political considerations. 4 I. AN OVERVIEW OF KELSEN'S VIEW OF LAW He sought to elaborate

theory of law free from any admixtures with moral, psychological, sociological

It is generally common among the legal philosophers to consider law as having

something to do with norms and individual law is said to be norm and a legal system is said to consist of a set of norms. 1 To Kelsen, law is a system of norms in a hierarchical order. Kelsen believed that the activity of every legal system is traceable to an authoritative standard known as a norm, which gives validity to the precise behavior involved in such an activity/' A norm is said to be a type of directive. It tells people more than what they must do, under pain or compulsion, it tells them in a sense what they also "ought to do". Therefore, norms are said to be more than a command although it takes its source in command. A norm could also be said to mean an act by which certain behavior is commanded, permitted or authorized.8 It may cither arise through a custom e.g. common law, or are enacted by conscious acts of certain organization aiming to create law as a legislative acting in its law making capacity.0 A legal norm does not only prescribe certain type of behaviour but specifies coercive act i.e. sanctions to any contrary behaviour to that specified.10 To Kelsen, a norm derives its validity solely from its having been authorised by another legal norm higher in rank, for example, administrative order deriving its authority from the statute. According to Kelsen, norms exist in hierarchy and every norm is dependent upon a superior norm for its authority and the norms become 'more concrete' and less abstract as one descends the levels within the hierarchy.1 Legal norms receive their validity from the higher more general norms until a partrcular point is reached which Kelsen described as a "basic norm" or the "Grundnorm" which imparts validity on the whole legal order. It is only the legal norm. That can validate other norms than the validity of a norms is established by locating that norm within the hierarchy of norms12 . Grundnorm therefore as a final basic norm does not depend upon another norm for its validity 13 It is the commencement of a specific chain of legal norms. For example, in tracing the origin of a particular act, we arrive at a

validity to the constitution. This is the Grundnorm because there is the final postulate which gives effect other norms . The basic norms is presupposed I legal thinking for legal purpose therefore analysis of a legal norm cannot move beyond Grundnorm. 14 A question may be asked at this juncture, whether there can be finishing point to the chain of validity or hierarchy of law in other to find its root of title? In answer, kelsen argues that a logical system must be made out of material of the material of the legal other and that it is only by assuming such a point that a sense can be made out of the actual activities of the legal officials and legal academics. He argued further that if the process is to go on , then the validity o any norm would never be established by references to another norms must be reached. Wayne Morrison noted as follows: T h e n o r m w h i c h represents the reason for the validity to another norm is called the 'higher' norm. but the search for the reason of a norm's validity cannot go on indefinitely. It must end with a norm which it cannot be posited, that is to say: created by authority whose competence would have to rest on a still higher norm such a presupposed highest norms is ... the basic norm. All norms whose validity can be traced back to one and the basic norm constitute a system of norms, a normative order. The basic norm is common source for the validity of all norms that belong to the same order, it is their reason for validity".16 In order to make sense out of legal order, it must be presupposed that every legal order has a basic norm. For example, the chain of a norm may be traced back to the constitution and still find that the constitution was made in accordance with the

earlier constitution which was also made by another earlier constitutions, until a particular place is reached where you cannot go further. It is not the first constitution that serves as a basic of validity but a more basic norm which is the act which ought to be done in accordance with the historical first constitution and it is not the fact of the first constitution. Wayne Morrison further observed as follows: Ultimately, we reach some constitution that is the first historical and that was laid down by an individual usurper by some kind of assembly. The validity of this first constitution is the last presupposed, the final postulate, upon which the validity of all norms of our legal orders depend. It is postulated that one ought to believe as the individual or the individuals who laid down the first constitution have ordained.1 It must be noted that the constitution itself is not the basic or Grundnorm because it is factual document or set of understanding but it is the act that ought to be done in accordance with the provision of the constitution. This is however something to be presupposed, since there is no authority to lay it down or to enforce it. I N In a legal system where there is no constitution, the basic norm can be found in their custom, because the constitution arises through custom. It is also found in those legal systems in form of coercive act which ought to b applied in accordance with the customary way of making law in that particular country. According to kelsen: t h e b a s i c no r m i s n ot as a positive legal norm is. valid it is created in a certain way by a legal act, but is valid because without this presupposition no human act could be interpreted as a legal act.19

Although norms can said to be true or false, they must meet the requirement of validity. An invalid norm is not in fact, a norm. Eve through norm can neither be said to be true or false statement of scholars that a particular norm is or is not valid are capable of being though true or false. For a system to survive it must be dynamic and kelsens visualization of a system that is dynamic is are continuously created on the ultimate authority of an original norm. The Grundnorm must have no rule behind it, it is the fons et origo i.e the final norm.20 A valid norm may however depend on many factors or combination of factors like content, source, or method of creation. Contemporary legal philosophers have however insisted on some sort of efficiency 4 the validity of a purposed norm. The existence of a legal order must not only be valid but must be effective. Norms of the legal system must be accepted by the community and Grundnorm must enjoy an appropriate general support, otherwise it loses its efficacy and another law which commands the obedience and acceptance of the society becomes the Grundnorm21 to Krisen: the efficiency of the entire legal other is a necessary condition for the validity of every single norms of the other, a condition sine qua non but not a condition per quam. The efficiency or the total legal order is a condition not the reason for the validity of its constituted norms. 22 A norm is said to be efficacious when it is in fact applied and when circumstances arise which make the norm applicable. Consequently, a legal system is said to be efficacious when the norms of which it consist are efficacious or some sufficiently high percentage of them are efficacious, and that

is to say in essence that they are in fact applied when circumstances arise which make those norms applicable.23 A basic norm is essence must be effective before it is valid, since effectiveness is a necessary condition of a validity of a legal order, and as soon as legal system loses its efficacy, then it is no longer valid, and for a basic norm to lose its validity, the whole legal order to which it belongs must lose its effectiveness, hence there is no validity without efficacy but there can be efficacy without validity.24 Legal norm must be obeyed and a norm which does not command obedience of the society is not valid. Universal and total obedience is not required but just a sufficiency of adherence for the essence of a basic norm to be effective.25 If a norm is largely ignored by ordinary citizen, it does not critically affect its validity or the fact that the police, prosecuting authority and other similar officials ignore a particular norm again does not preclude its being valid but a particular norm loses its validity when courts ignore its application.26 Critics of Kelsen's Pure Theory of Law have advanced the argument that law is not an isolate, and cannot be separated from its environment of social and political fact. It is regarded as a part of the community and it is affected by the dynamics of society, hence there cannot be a pure theory of law. Furthermore, the concept of Grundnorm is unreal as it only represents personal value-judgement of the investigator. They argued that the reason for the obedience of the law is not be found in any norm because there is a variety of Complex reason-social, political etc behind the conscious response of the citizen to the legal duties. 27 It was further argued that it will be difficult to test the minimum support for basic norm without enquiry into political and social factors and this however goes contrary to kelsens concept of

pure theory. 28 II. Applicability of kelsens Theory of the Nigeria legal System The issue as to whether there is a Nigeria Grundnorm has generated a lot of controversy among the Nigerian legal luminaries 29 the question is whether there is a Nigerian Grundnorm and , and if there is, where exactly does it lies. This question will be looked at from the perspective of the pre-colonial era, the colonial era and he post independent era. (a) Pre-colonial Era Before advert of British to Nigeria, Nigeria was not a state of anarchy but the law consisted of customs of the people though not codified. Although the laws were not written, they were known to all, especially are the custodians of the traditions of their communities. The indigenous pre-colonial African communities are classified into two political groups.30 The first machinery and constitutes societies with administrative

judicial institution. The Yoruba and the Sokoto caliphate

are typical example of this type of political system. However, while the Yoruba is traditional and indigenous, the sokoto caliphate was run along Islamic lines. 31 the communities have common interest and loyal to a political superior usually the paramount chief or the king in council.32 In such traditional communities, the Chief was the ultimate, what he declared as law, was what governed the people.33 Thus, the Grundnorm here could be said to reside in the hands of the paramount chiefs.34 In the Islamic empire of Sokoto, the Grundnorm was probably traceable to the Quran, being the holy book of Islam. All other norms in the system derive their validity from the Quran.

The second is composed of those societies with very rudimentary political arrangement, without any strong centralized authority, administrative machinery or judicial institution.35 In these communities, power is diffused among the elders, the clan and family heads, and the village meeting. It is arguable that the Grundnorm here resided either in the collective will of the community or in the allegiance to their customs. But since customs derives their validity from the will of the people, the will of the people supercedes customs in the competition for the Grundnorm. However, some customs and beliefs are virtually unchangeable, for to change them will lead to a fundamental change in the community itself, that is will amount to a revolution in Kelsenian terms. Thus, the 'will of the people' has a better claim to being the grundnorm. (b)Colonial Era At the advent of the British rule followed by the adoption of Received English law (period normally referred to as the colonial period), the validity of Nigerian laws derived their authority from Westminster, because the administration of the government and country was the full responsibility of the British colonial master. Therefore, the Nigerian Grundnorm was in the enactments of the

Crown-in-Parliament at Westminster which were expected to be obeyed, even though reluctantly obeyed.36 In civil regimes, Hon. Justice Kayode Eso, is of the opinion that Grundnorm is traceable to the executive, judicial or the legislative arm of the government.41 Dr. Akinola Aguda is of the opinion that the Grundnorm of our legal order cannot be said to be traceable to the judiciary or the executive, unless, the word "Grundnorm" is given a meaning totally different from what Kelsen wants it to mean.42 He further argued that the Grundnorm could not lie in the judiciary, executive or legislative or even judicial precedent, because, neither the

judiciary, nor the executive or the legislative could be said to be the fundamental rule in accordance with which legal norms are created. They are neither norms nor the Grundnorm because their validity unlike the Grundnorm is founded on the fact that they are created in a manner determine by a legal act and none of them imparted validity into a legal order, they are not 'metal-legal' Grundnorm because they are creatures like the

of the constitution in the material It was norms

sense and their validity and authority derivable from the constitution. 43 argued further that the judicial but never precedents could at most be

the Grundnorm. 44 It was stated that the judiciary, the executive or

the legislature can not have an existence independent of the constitution as this will mean that each of them is fans et origo i.e. final norm upon which the validity of every other norms is derived including the constitution itself, it will also mean that each of them furnishes constitution with validity, 45 when in fact they are creatures of the constitution and derive their validity from the constitution. In this regard, Justice Field send in Madsimbamuto v Lardner-Burke 46 said: "A court created by a written constitution can have no independent existence part from that constitution, it does not receive its powers from the common law and declare what its own powers are, it is not a creature of of Frankenstein which once created can turn and destroy its maker it is maker - it is a matter of the supremacy of the constitution.47 In the same vein Nwabueze said ".the validity of the court's authority to decide depend upon the

validity of the constitution granting it that authority".48

Thus, many have argued that under the Grundnorm lies in the constitution.49

civilian

regimes,

the

II

Military Regimes

On January 15, 1960 the Nigeria Armed Forces took over control of the federal and regional governments. This development however led to the prommulgation of the Constitution (Suspension and modification) Decree, 1966.50 With this development however one would have thought that the grundnorm of Nigeria should be 1966 The Supreme Court however held otherwise in lakanmi v A.G. Western State and others51 The Court held inter-alias that the event of 1966 did not amount to a revolution but a mere invitation to the Armed Forces to form an Interim Military government .The Military government reacted by nullifying the effect of the judgment through a decree.52 This has remained the position throughout the successive military governments in the country Given the dictatorial nature of military governments, some have opined that military governments are not subject to any form of legal restraint. However as pointed out by Sagay, [the] view that a military government enjoys absolute power on the basis of physical force, it is difficult to see how such a government is bound to rule by law, even its own law. For it is not subject to any legal control or restraint, except its own judgement, it could indeed go ahead and carry out executive acts without first going through the motion of enacting enabling legislation. This is the logic of absolutism."

The reality is that during the military regimes, have unfettered discretion to make laws. As pointed out by Chief F. R. A. Williams: Successful revolutionaries, having over-thrown the existing constitution have the capacity to enact a completely new one. It is also open to them to suspend or modify any portion not suspended or modified as part of the new grundnorm whether the new grundnorm is a brand new set of rules from the beginning to the end, or whether it incorporates portion of the constitution which was in force at the date of the revolution, there can be no doubt that the power to shape the grundnorm is wholly in, the hands of the revolutionary government.54 chief Williams further further that having done so, it cannot lawfully, exercise

governmental power (be it executive power or the power to make laws) inconsistently, or in disregard of it.55 Some have the Grundnorm under such government to Decrees passed by the government. Niki tobi pointed out that the Grundnorm under General Babangida administration consisted of : [t]he Constitution (Suspension and Modification) (Amendment) Decree 1984, the Constitution (Suspension and Modification) (Amendment) Decree no 17 of 1985, the unsuspended provisions of the 1979 constitution, and any other decree which directly relate to above in their total packages 56 . Some are of the opinion that a Decree or Decrees cannot be the Grundnorm. Uzuokwu says that a Decree is at best, a norm, since its validity falls outside it itself. It cannot be regarded as a fundamental norm. since it requires the signature of the heads of state after its promulgation the Supreme Military Council or Armed

Forces ruling council for validity and that its validity is not a presupposition unlike the Grundnorm but its validity is a question of H the success of a military revolution, it is created by a legal organs and does not merely exist in juristic thought.57 All the all the view seems consistence with Ojo's view that in the military regimes any search for a grundnorm away from the Supreme Military council (or it equivalent under the various Military regimes) or the expression of power its powers as declared in Decrees is a futile academic exercise (d) The People as the Grundnorm Some have traced the Grundnorm to the people. According to professor sagay, groundnorm of Nigeria is the consent or will of the of the populace" 59. Section 14(2)(a) of 1999 Constitution embodies this principle: "Sovereignty belongs to the people of Nigeria from whom government through this constitution derives all its powers and authority.60 It would seem therefore that the source of all governmental authority in this country is the people. Even where the military takes over power from an elected government after 1979, they claim to do so on implied mandate of the people of Nigeria, and no matter how powerful any government ruling in Nigeria is, they are subservient to the people of Nigeria from whom it derives its power and authority.61 It is therefore incontestable that the Federal Military Government is subservient to the people of Nigeria by deliberately leaving the sections to equivalent section 14(2)(a) of the 1999 Constitution in the relevant constitutions, unsuspended and by proclaiming their intention to hand over government powers to elected representatives of the people they confirm their acceptance of the ultimate right and privilege of the people Nigeria to decide who shall exercise the powers of

government over them. It can therefore be rightly concluded that the provision of section 14(2)(a) of the Constitution is not a mere doctrine of political theory in Nigeria.62 CONCLUSION It is submitted that Grundnorm in a system where there is a written constitution is neither in the parliament nor in the constitution. Yet, the Constitution is by its own terms 'supreme. The constitution itself derives its existence from the 'people'. Hence, "the will of the people" must necessarily supersede the constitution in our search for the Grundnorm. Hence, that the constitution of Nigeria ought to be obeyed is another legal norm. In the same vein, under a military era Grundnorm does not lie in the Armed Forces Ruling Council Provisional Ruling Council (AFRC) or Provisional Ruling Council (PRC) or its Decree.63 However In order to determine whether tracing Grundnorm to the people fit into Kelsenian concept of Grundnorm as a metaphysical concept it has been stated that the basis of grundnorm is the constitution in the legal-logical sense and exist in juristic thoughts.64 Therefore, the will of the people could be regarded as the ultimate source of the legal authority of the state to which the Validity of other norms within a legal order could be traced to. It can therefore, be stated that if efficacy is a necessary factor and Grundnorm must enjoy the support of the community, we then say that the wish of the people as contained in the constitution constitutes Grundnorm and this means that the Constitution on its not a Grundnorm, but at best could be a norm since its validity traceable to the wish and believe of the people, and Grundnorm could also arise from the custom of the people. Since the people wish does not derive its validity from another norm, it then means that the people's wish is the last in the

hierarchy of norms in Nigeria. Thus, by Kelsen's theory the Grundnorm I Nigeria mustbe traceable to the people.

Lecturer, Faculty of Law, University of Ilorin, Ilorin G.W. paton, A textbook of Jurisprudence (4th Edition by G. W. Paton P. Derham) p. 16.

Ibid. kayode Eso,Nigeria Grundnorm (Lagos: Nigeria Law Publication, 1986) p.34 J.M. Elegido, Jurisprudence(Ibadan Spectrum Books Ltd. 1994) p. 84. George C. Christie, Law, Norms and Authority (London: Duck-worth, 1982) p. 1 C. B. Curzon: Lecture Notes on Jurisprudence (London: Cavendish Publishing Ltd., 2nd Edition, 1995) p. 120.

4 5

7 8 9

Christie, op cit, p. 2.

Curzon, op cit, p. 120. Ibid, p. 121. Ibid. ibid, pp. 121-233. Wayne Morrison Jurisprudence from the Greek to post-Modernism

10

11

12 13 14 12 16 1 7

Ibid, p 340 Curzon, op cit, p. 122 Wayne Morrison op cit, p. 337

Ibid, pp. 337-338.

Ibid, at p. 338 Ibid. -

1 8

22

Wayne Morrison, op cit, p. 341.

23

Christie, op cit, pp. 11-12. Wayne Morrison, op cit, p. 342. Curzon, op cit, p. 123.

24

25

26

Christie, op cit, p. 13 Curzon, op cit, p. 125. Ibid, p. 126 see the discussion of some of the contribution to the controversies in J.M. Elegido,

27

28

29

jurisprudence(Ibadan: Spectrum Book Ltd,1984)pp.89-92.

32 33

M. Fortes and E. E. Evans - Pritchard, op cit, p. 5. 33 Kayode Eso, op cit, p.

kayode Eso, op cit, p. 40 K. Eso, "Is There a Nigerian Grundnorm?" in lion Justice Kayode Eso, Thoughts on Law and M. Fortes and K. lc, l-vans

34

Jurisprudence (Lagos: M.l.J. Professional Publishers, 1990'.') 217 at p. 221

35 36

Pritchard, op cit, p. 5 and Elias, op cit, pp. 11 - 14.

kayode Eso, op cit, p. 40 between 1960 and 1998 the Military regimes were: Gowan (1996 -1975);

37

Murtala (1975-1978);
41 42

Kayode Eso, The Nigerian Grundnorm, op cit, p. 24. Aguda quoted in Livy Uzuokwu, " 'The Nigerian Grundnorm - A Critical Appraisal' A

Rejoinder" JUSTICE, 1990, Vol. 1 p. 87

43 44

Uzuokwu, op cit, p. 87.

Ibid, p. 88 Ibid. See also A. Ojo, Constitutional Law and Military Rule in Nigeria

45

(Ibadan: Evans Brothers [Nigeria Publishers] Ltd, 1987) p. 110.

46

(1968) 2 S.A. 284. Ibid Nwabueze quoted in Kayode Eso, "The Impact of Military Rule on the yildu" Journal of

47 48

Nigerian Law Vol. 1 -3, No. 1, 1966, p. 15.

49

Abiola ojo, "The Search for a Grundnorm in Nigeria: The Lakanmi's ltifiiii Journal of

Contemporary Law, Vol. 1. No. 2, December 1970, pp. 200 at p.215. (Also in ICLQ. Jan 1971, pp. 177-136); T.A. Aguda, The Nigerian Grundrum
50 51

Decree No. 1 of 1966 (1971) 1 U R. 210. See comments on this decision in Ojo, "The iluorm in Nigeria: The 'S of 1970.

Lakanmi's Case", op cit. Military Government (Supremacy and Enforcement of "

52

See the comments on this Decree in A. Karibi-Whyte, "Federal Military Government

(Supremacy and Enforcement of Powers) Decree, No. 28 of 1970" Nigerian Journal of Contemporary, Law, Vol. 1 No. 2, 1970, p. 284.
53 54

Ibid, p. 16. Chief F. R. A. Williams quoted in Kayode Eso: "The Impact of Military Rule on the Judicial

System", Journal of Nigeria Law 1966, Vol. 3 No. 1,p. 15

55 56

Ibid Niki Tobi, The legislaive Competence of the Armed Forces Ruling council JUSTICE, Vol 1

No. 4, 39 at p. 40.
57 59

livy Uzuokwu, op cit, p. 88.

Sagay quoted in F.R.A. Williams, "The Nigerian Judiciary and Military Government" Journal of

Nigeria Law, 1995, Vol. 20 No. 2, p. 15.

60

Kayode Eso, "Impact of Military Rule on the Judicial System", op cit, p.16 Williams, op cit, p. 15. Ibid, p. 16. Kayode Eso "The and M. I. Uncertainty Jegede in the Movement of the Nigeria Grundnorm. O.

61 1

62

63

Elias

(eds.),

Essays

in jurisprudence lagos: M. I. J. Publishers Ltd.

1993) p. 66.
64

Livy Uzuokwu, op cit, p. 89 Ibid

65