The Control of constitutionality of laws - a comparative analysis between Ethiopia and Nigeria

This essay examines the normative contemporary constitutional law question ‘how constitutionality of laws is controlled?’ under Ethiopian and Nigerian Federal Systems. In constitutional terms, both this question and federal systems require a written constitution that serve as a fundamental or basic law and placed hierarchically at the highest peak.

Federalism with written constitutions is one of the hallmarks of the Ethiopian and Nigerian political system. In both countries there are constitutionally entrenched distribution of powers between States and federal government to enact law, to execute and adjudicate as means of modern attempt to accommodate democratic complexity and pluralism. In exercising these constitutionally entrenched powers, the possibility of enacting inconsistent and ultra virus laws and hence, disputes regarding the constitutionality of laws is inevitable. The federal and state laws should be consistent not only with the terms and conditions of the federal constitution i.e. considered as a Basic Law but also should exist in harmony with each other. The settling of disputes concerning the constitutionality of laws is essential in federal systems and takes distinct form. Irrespective of its distinct form, the constitutionality of laws is one of the central problems of Constitutional Law that must be addressed in any federal states.

The objective of this essay is therefore; to compare how Ethiopia and Nigeria arrange the control of constitutionality of laws in their federal structure the aim of which is to guarantee and ensure the observance of hierarchy of legal norms and rule of law. In doing so, the essay is divided in to four sections. Section I explore the methods of controlling Unconstitutional Provisions and provide list of possible solutions for comparison. Section II demonstrates the general background and legal basis for application of control over unconstitutional provisions in Ethiopia and Nigeria. Section III compares the two countries method followed by conclusion under Section IV.  

2.      Mode of Controlling Unconstitutional Provisions in Federal Systems

Despite the fact that federalism comes in many varieties and contexts, written constitution, supremacy of the constitution, and division of power between states and federal government are the common characteristics found in any federal system. The Supreme Constitution divides power between the federal government and the states, and that both orders of government are autonomous with respect to the powers granted to them. Federal government cannot exist except under a constitutional framework institutionalizing limited governmental sovereignty. In exercising these constitutional entrenched power both the federal and state legislature should enact laws and policies within the limits set by the Supreme Constitution. Furthermore, in these countries, state laws should exist in harmony with the federal laws and vise versa. As a result, Federal countries with written constitution as a basic superior law find themselves with a valid question as to how the superiority of the constitution over ordinary federal and state legislation is to be secured. Hence, there must be an institution that maintains the hierarchy of laws and the federal integration. One way of guarding and demarcating the boundary is by creating an institution that controls the constitutionality of laws through constitutional or judicial review.

Controlling constitutionality of laws by way of ‘constitutional’ or ‘judicial’ review and subordinating statutory law and state action to higher principle may take different forms. Despite its difference, there are four basic Wh-questions/problems that need to be addressed in controlling constitutionality of laws in order for the observance of hierarchy of laws and the rule of law. Which institution, What kind of arrangement, What legal character, and When to control are the basic problems that need solution. These Wh-questions, for the purpose of this essay, can further be categorized as ‘Institutional’ and ‘Procedural’ solutions.

With regard to ‘Institutional’ criterion, whether the control of constitutionality is practiced through court or non-court organ and whether the control is concentrated or diffused is a matter of high consideration. When the authority to control constitutionality of laws is granted to court, it is considered as ‘court-controlled’ system of review. This can be done either by constitutional court, Supreme Court or ordinary courts. When the power to control constitutionality of laws is assigned to a single organ with qualified judges either for Supreme Court or Constitutional Court, the authority is referred as ‘Concentrated’ and when ordinary courts, while the highest court in the system provides for uniformity of jurisdiction, are assigned with this power it is referred as ‘diffused’. When question of constitutionality is carried out by organs other than court and representing legislature, executive or a combination powers, it is referred as ‘non-court controlled’.

There is a high philosophical debate behind the choice of institutional design, especially when courts are assigned with the authority to control the constitutionality of laws. When courts declare the Acts of elected representatives of the people unconstitutional, they are in a way invalidating the will of the people majoritarian governance and popular sovereignty.  This is usually referred to as the counter-majoritarian problem or difficulty. The counter-majoritarian problem view court-controlled system as an illegitimate institution and claim that decisive tasks like control of constitutionality of laws should not be uncoupled from the body that represents the electorate. Particularly the task of constitutional review should not be on the shoulders of court and must not be permitted for unelected and an accountable judges to nullify the acts of democratically elected and accountable legislatures. This idea seems to have influenced new constitutions like Ethiopia which will be discussed later on.

With regard to ‘procedural’ criterion, when to control constitutionality of laws, before/preventive or after enactment/ex post facto and what the control itself looks like, Abstract or Concrete, are the basic solutions that need to be addressed. While preventive control takes a form of examination of constitutionality of draft laws, during the legislative process and before parliament’s promulgation, afterward control of constitutionality takes place after the law has come in to force. While Abstract review determines the constitutionality of a statute without a specific case and without being limited by or to the facts of a specific litigant’s situation, concrete review requires litigation of constitutionality in the context of a particular case. Abstract review particularly includes the power to adjudicate any federal or state law on the basis of conformity with the basic law, the purpose of which is to decide whether legislative provision is contrary to higher legal norm.

Regardless of the difference in the choice of the above solutions, there is a common commitment to maintain hierarch of legal norms to a basic law that reflects the society’s fundamental values in federal countries. A law that is neither in accordance with the higher law nor conflicts with it should cease to exist by some kind of procedure as has been declared in Norton v. Shelby County case “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” With this assertion in mind, let us now explore how constitutionality of laws is controlled and what kind of solutions are there under Ethiopia and Nigeria Federal Systems.

3.      Control over unconstitutional provisions in Ethiopia and Nigeria

In order to make the analysis in the next section as valid as possible, the same objects should be examined between the two countries. The common features of federal states, the type of solution for controlling constitutionality of laws and the legal basis in which the control is based will be discussed. The ultimate goal from this is that the conditions for comparison are met in the same order.

3.1  Common features of Ethiopian and Nigerian Constitutions

3.1.1        Written and Supremacy of the Constitution 

Ethiopia and Nigeria, being a federation consisting of states and Federal territory, have written Constitutions which establish Parliamentary and Presidential form of government respectively. Article 9(1) of the Ethiopian constitution provides for the supremacy of the constitution by declaring “the constitution is the supreme law of the land’. The same is true for the Nigerian Constitution declaring “the constitution is supreme and its provision should have binding force on the authorities and persons throughout the Federal Republic of Nigeria.” In both countries every organ of the state and every functionary working under the constitution are required to act in accordance with the provision of the constitution. Any other law inconsistent with the provisions of the constitution shall have no effect.

3.1.2        Division of Power

Common features of division of legislative power between Federal government and the States can be observed from both Ethiopian and Nigerian constitutions. Both constitutions establish bicameral legislature consisting of upper and lower chamber. While the Ethiopian Constitution provides House of Peoples’ Representatives as (lower chamber) and House of Federation (as upper chamber), the Nigerian constitution establishes the Senate (as Upper House) and House of Representatives (as Lower House).  The Senate and the House of Representatives together called National Assembly have the legislative power of the Federal government in Nigeria. The House of Peoples Representatives of Ethiopian parliament, on the other hand, has the highest authority of the federal government. Both Constitutions allocates legislative power on the basis of Exclusive, concurrent and reserve powers. In both countries, the Federal government has an exclusive authority to exercise an exclusive legislative list and states have exclusive legislative authority in residual matters. While the exclusive list for Nigeria consists of as many as 68 items, the Ethiopian constitution only provides for 21 items. Both the Federal and States have concurrent authority to exercise on concurrent legislative list.

3.2  Solution for controlling Constitutionality of Laws

3.2.1        Ethiopia

With regard to the Institutional question for controlling constitutionality of laws, the Ethiopian Constitution favors the non-court controlled and concentrated system of control. This can be evidenced from the Ethiopian Constitution as articulated that all constitutional disputes, including Federal and State law contested as being unconstitutional, shall ultimately be decided by the upper house of Parliament–House of Federation (HOF). The Ethiopian constitution further establishes a body called Council of Constitutional Inquiry (CCI) that acts as an advisory body to the HOF. The CCI –composed of the president and vise-president of the Federal Supreme Court, six legal experts and three designated persons from the HOF – investigate issues of constitutional interpretation and submit recommendations where it finds it necessary to interpret the constitution. If the CCI, after investigating the case submitted to it, finds that there is no need for constitutional interpretation, it may reject the case and inform of its decision thereof to the concerned party. The interested party, if dissatisfied with the decision of the Council, may appeal to the House of the Federation. With the introduction of this unique arrangement of constitutional adjudication, the judiciary in Ethiopia is left aside from having a direct power on constitutional interpretation.

With regard to Procedural question, the Ethiopian constitution also favors both Abstract and concrete and before enactment and after promulgation system of control. Issues on constitutionality of legislations could arise with or without absence of court litigation. This can be inferred from the general provision of the constitution and from the rules of procedure of the CCI which states courts or any interested party are allowed to launch the process. In exercising judicial power, courts may face issues that involve constitutionality of laws and if courts believe that there is a need for constitutional interpretation, they should refer the case to CCI and keep the cases pending. On the other hand, any party having a case before a court may, if he/she believes that there is a need for constitutional interpretation first apply to the court handling the case and if rejected can submit to the CCI. This provision particularly depicts the existence of litigation based or concrete and Ex post facto control of constitutionality of laws in Ethiopia. Furthermore, without reference to any concrete case, where any federal or state law, including draft laws, is considered inconsistent with the federal constitution or where state laws are not inconformity with the federal law and vise-versa one-thirds members of the federal or state councils, or the federal or state executive bodies may submit to the CCI.

3.2.2        Nigeria

The Nigerian constitution has also given a constitutional basis on how constitutionality of laws is controlled and hierarchy of legal norms is to be maintained. With regard to institutional design, unlike Ethiopia, the Nigerian constitution grants ordinary courts with the authority to control constitutionality of laws by placing the Supreme Court at the apex of the judicial hierarchy for final and ultimate judgment. Ordinary courts including The Court of Appeal; The Federal High Court, The High Court of a State and of the Federal Capital Territory, all referred to as a Court of record can declare a federal law or any other law to be unconstitutional and, therefore, null and void. However, the Supreme Court has the final and ultimate power on cases of constitutionality of laws decided by any court of record. Furthermore, the Supreme Court has original jurisdiction in any dispute between the Federation and a State or between States if and if so far as the dispute involves any question, whether of law or fact, on which the existence or extent of a legal right depends.  It is for the court to determine whether there exists a legal right in a dispute between the Federation and a State or between States.

Persons entitled to take appeal are parties to the case, and other persons having an interest in the matter may avail of their right but with the leave of the Federal court of appeal or the Supreme Court. This produced the overall control of constitutionality of laws with regard to Procedural question. It evidences that concrete, Abstract and ex post facto existence of control of constitutionality in Nigeria. With regard to abstract review, although it cannot be referred from the wording of the constitution, a close examination of cases decided by Supreme Court shows that anyone even if it doesn’t have locus standi can lodge a case to Supreme court. Adesanya v. President of the Republic case when the locus standi was challenged the Supreme Court ruled that no one should be denied the opportunity to access the court.

The Ethiopian and Nigerian solutions for unconstitutional provisions can be summarized as follows.

3.2.3        Comparing the two approaches

With regard to the institutional design, while the Ethiopian Constitution could be seen as respondent to the counter-majoritarian problem by establishing a non-court controlled system of constitutional control; the Nigerian approach is still open for criticism of counter-majoritarian problem that grants ordinary courts, placing Supreme Court at the apex, for final and ultimate decision. On the other hand, because the Nigerian approach grants ordinary courts (diffused) to decide constitutionality of laws, courts have the capacity to engage in every argument and have a better experience in examination of the constitutionality of laws and interpretation of the constitution, and better than that of the Ethiopian approach where the HOF (Concentrate) doesn’t have the capacity to engage in often complex and technical arguments that any constitutional questions entails. Furthermore, Courts in both countries Constitutions established as an independent institution and have institutional freedom and presumed as impartial, the Ethiopian approach by taking away the control of constitutionality of laws from ordinary courts and by granting this function to HOF and CCI, it imposes the question of independence and impartiality.

With regard to Procedural design regarding abstract and concrete, when compared between two countries, the process to get decision promptly and immediate redress in any alleged constitutionality of laws is short in Nigeria and somewhat long in Ethiopia. This is obvious because courts in Nigeria in the normal course of proceeding if any question of constitutionality arises will adjudicate as they are entitled to do so. However in Ethiopia, as ordinary courts are not entitled to decide on cases that rise any kind of constitutional interpretation, parties in the dispute are transferred to CCI and from CCI to HOF either the court or one of the parties involved.

4.      Conclusion

To sum up, so far in this essay we have been considering written constitution, supremacy of the constitution and division of power are the common features found in any federal state, and that the same holds true for both Ethiopia and Nigeria. The Division of power between the Federal and state governments when exercised should not exceed the limits set by the supreme constitution. This principle should be guarded by creating an institution that protects and looks after the supremacy of the constitution and the hierarch of legal norms. One way of doing so is through controlling constitutionality of laws. There are Procedural and Institutional solutions that must be addressed to maintain the supremacy of the constitution and guarantee the hierarchy of legal norms by any federal states.

Both Ethiopia and Nigeria introduce the solutions of unconstitutional provisions through their constitution and the solutions have constitutional foundation. With regard to Institutional design, while Ethiopia adopts Non-court controlled and concentrated system of control the Nigerian constitution introduces the Court controlled and diffused system of control. By doing so, while the Ethiopian approach responded for the counter majoritarian problem and fails for impartiality and independence, the Nigerian approach is still open for counter majoritarian problem and better with regard to impartiality and independence. With regard to Procedural solutions, Nigeria practices the control of constitutionality of laws after they were passed by the parliament and when there is a concrete case i.e. Ex post facto and concrete solution, Ethiopia controls the constitutionality of laws not only both during the legislative process and after enactment but also abstractly and concretely.

Despite the solution favored, control of constitutionality of laws guarantees the observance of hierarchy of legal norms and ensures rule of law in any federal state.