Law & Human Rights

May 4, 2017

Constitution superior to any Act of N/Assembly—Ozekhome

Nigerian, Ozekhome


THE 1999 Constitution proudly proclaims its supremacy in section 1(1), in the following words: “This Constitution is supreme and its provisions shall have binding force on all authorities and  persons throughout the Federal Republic of Nigeria”.


Section 1(3) then goes on to state most unambiguously: “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void”.

The Supreme Court of Nigeria has upheld the supremacy of the Constitution in a plethora of cases, including: ABACHA VS FAWEHINMI (2000) 4 SC (PT.  11), PAGE 1.;  AG ABIA STATE VS AG FED.  (2002) 6 NWLR (PT.  763) 204; AG ONDO VS AG FED. (2002) 1 NWLR (PT.  772) 222; BALONWU VS GOV.  ANARMBRA STATE (2009) 18 NWLR (PT.  1172) 13.

The pith and substance of my argument is that there is no conflict whatsoever and howsoever between the clear provisions of section 2(3) of the EFCC Act which insists that the President shall have powers to appoint its Executive Chairman SUBJECT TO CONFIRMATION by the Senate, and section 171 of the 1999 Constitution, which NEVER envisaged an EFCC created 5 years later, NEVER provided for it, but which merely provides for certain bureaucratic positions of government that are not created by Statute, such as Extra – Ministerial Departments (EMDs). Such EMDs are not like statutorily created bodies, such as the EFCC, NNPC, CBN, NAFDAC, FRSC, Prisons, Customs, etc. Such EMDs once enacted into an Act of the National Assembly, they cease to be EMDs. They are governed solely by the provisions of the parent creating Act, and no more.

I hereby maintain my stand that section 2(3) of the EFCC Act does not in any way howsoever, conflict with, or derogate from, section 171 of the 1999 Constitution. Not that it is superior to, or that it overrides section 171. NEVER. Infra dignitatem. The tail can never wag the dog. They are worlds apart. One is supreme ( the Constitution), but does not cover or apply to the specific matters of appointment dealt with only by the inferior EFCC Act, the very Act that breathed the oxygen of existence into the EFCC itself as an institution. To say that section 171 of the 1999 Constitution does not apply to matters covered by the EFCC Act is not to say the Constitution is inferior to the Act, or that the provisions of the Act supercede those of the Constitution. That is mere red herring.

For the avoidance of doubt, it is the EFCC Act, No. 1, LFN, 2004, and NOT section 171 of the 1999 Constitution, that created the EFCC and gave it life. Consequently, the origin, powers, composition, rules of engagement, practice and procedure, of the EFCC are governed solely by the EFCC Act, 2004, and not by section 171 of the 1999 Constitution, which deals with EMDs, and not the EFCC. This does not in any way make the Act superior to the Constitution.