The public relief which greeted the enactment by the National Assembly of the Administration of Criminal Justice Act 2015, was only tempered by its limited scope in terms of courts: it is only enforceable in Federal courts as listed in the Constitution. Even though the Act has since been replicated in at least 30 States across the country, I believe that a more fundamental concern is that, to the extent both laws purport to regulate the practice and procedure of courts in criminal trials, they might be unconstitutional. This is because, as I shall presently endeavour to show, both the National Assembly and State Houses of Assembly are incompetent, under the Constitution, to enact such adjectival legislation, because the same Constitution has specifically conferred that power on the heads of courts. Before going into my reasons for holding this view, first, an . . .
The National Assembly derives its authority to enact adjectival statutes from Item 68 of the Exclusive Legislative List of the Constitution, read along with Paragraph 2(b) of Part III of the 2nd Schedule thereto. Whilst the first empowers the Assembly to make laws on anything that is incidental or supplemental to any of the 67-odd substantive subject- matters in the Exclusive Legislative List, the second defines such incidental or supplementary matters to include “the practice and procedure of courts of law”. As for State Houses of Assembly, the Constitution confers no comparative rule-making power on them; that function being reserved exclusively for the heads of State Courts, subject, however, to laws made by their Legislatures. More on this shortly. For now, a pertinent question is: what is practice and procedure?
Meaning of Practice and Procedure
According to the online source https://legal-dictionary.thefreedictionary.com, “Rules of practice (are) certain orders made by the courts for the purpose of regulating the practice of members of the bar and others.” Another source, https://www.lexico.com defines ‘Practice’ simpliciter, as inter alia, “an established method of legal procedure”, and, “the customary habitual or expected procedure or way of doing something”. As to the difference between ‘practice’ and ‘procedure’, it appears that it depends on the particular variant of either term employed in any given case.
As a noun, the online source http://wikidiff.com states that ‘practice’ means, inter alia, “the form, manner, and order of conducting and carrying on suits and prosecutions through their various stages, according to the principles of law and the rules laid down by the courts”. The same source describes the noun variant of ‘procedure’ as, inter alia, “the steps taken in an action or other legal proceeding”. It is obvious that it is the noun variants (as opposed to the verb forms) of both terms, that are applicable in the context in which they are used in the Constitution. Unfortunately, that document does not define either term – neither does the Interpretation Act. Accordingly, their ordinary grammatical meanings referenced above will have to suffice.
Judicial Power Over Practice and Procedure
The 1999 Constitution has specifically conferred the power to enact rules of practice and procedure, on the heads of both Federal and State courts. Examples of it’s provisions in this regard include:
– Section 236 (the Supreme Court; by the Chief Justice of Nigeria, subject to an Act of the National Assembly);
– Section 248 (the Court of Appeal; by the President of that Court, subject to an Act of the National Assembly);
– Section 254 (the Federal High Court; by the Chief Judge of that court, subject to an Act of the National Assembly);
– Section 254F (the National Industrial Court; by the President of that court, subject to an Act of the National Assembly);
– Section 259 (the High Court of the Federal Capital Territory; by the Chief Judge of that Court, subject to an Act of the National Assembly);
– Section 264 (the Sharia Court of Appeal of the Federal Capital Territory; by the Grand Kadi of that Court, subject to an Act of the National Assembly);
– Section 269 (the Customary Court of Appeal of the Federal Capital Territory; made by the President of that court, subject to an Act of the National Assembly);
– Sections 274, 279 and 284 (the High Courts, Sharia and Customary Courts of Appeal of a State; by the Chief Judge, Grand Kadi and President of those courts, respectively, subject to laws made by the State Houses of Assembly).
Purport of ACJA
There is no better place to find this than Section 2(1) thereof, which provides that “Without prejudice to Section 86 of this Act, the provisions of this Act shall apply to criminal trials for offences established by an Act of the National Assembly and other offences punishable in the Federal Capital Territory, Abuja”.
What of the Various ACJLs in the States?
As previously noted, at least 30 State Houses of Assembly have enacted similar laws dealing with practice and procedure in criminal matters, within their respective jurisdictions. I believe that those laws fare even worse than ACJA, in terms of their constitutional validity. This is because, unlike the latter, there is no identical or even similar constitutional provision which authorises State Houses of Assembly to enact rules of practice and procedure directly. On the contrary, that power is reserved by the Constitution exclusively for the heads of State courts, such as State High Courts, State Customary Courts of Appeal and State Sharia Courts of Appeal, as aforesaid. It is clear that, to the extent that State Houses of Assembly enacted those laws, they have usurped the constitutional functions of the heads of State courts; accordingly, those laws are ultra vires and invalid.
The case of ACJA appears to be more nuanced. Suffice it to say that, at the risk of over-generalisation, it appears that those provisions of the Act which deal with practice and procedure as defined above, ought to have been enacted by the heads of the relevant Federal courts, and not directly by the National Assembly, as is the case. My belief is anchored on the latin maxim ‘specialibus generalia derogant’ or special things derogate from general things. As applied in legislative and constitutional interpretation, this means that: “where a special provision is made to govern a particular subject-matter, it is excluded from the operation of any general provision”: ATTORNEY-GENERAL OF THE FEDERATION v ABUBAKAR (2007) All FWLR pt. 375 pg. 405 @ 524, SC: GOVERNMENT OF KADUNA STATE v KAGOMA (1982) 6 S.C.87 @ 107.
In the specific context of the powers of the National Assembly to regulate practice and procedure of courts of law, while I concede that these appear to be conferred by a combined reading of Item 68 of the Exclusive Legislative List and Paragraph 2(b) of Part III of the 2nd Schedule to the Constitution, however, I hasten to add that these are general provisions which only deal with any matter that is incidental or supplementary to any of the 67 substantive items in the Exclusive Legislative List. In other words, they lack any life of their own, but are only activated by the enactment of a law on any of the 67 preceding substantive items on the Exclusive List.
By contrast, the Constitution specifically confers on the heads of the Supreme Court, the Court of Appeal, the Federal High Court, the National Industrial Court, the Sharia Court Appeal of the FCT, the Customary Court of Appeal of the FCT and the High Court of the FCT, the power and the right to enact rules of practice and procedure applicable in both civil and criminal trials in those courts. I believe the only logical inference from this, is that the makers of the Constitution intended to confer that function exclusively on the heads of those courts.
I submit that to construe those provisions otherwise, would be to suggest that the Constitution gave that right to the heads of the aforesaid courts with one hand, and took it away with the other, that is, Item 68 and Paragraph 2(b) of Part III of its 2nd Schedule as aforesaid. It is trite law that no Constitution-maker will be presumed to have done that: OSADEBAY v ATT-GEN. of BENDEL STATE (1991) 1 NWLR pt. 169 pg. 525 S.C.; ATT-GEN. of THE FED. v ABUBAKAR, supra @ pg 472; S.C.
Neither the National nor State Houses of Assembly are courts of law; no Legislature is. Their role is constitutionally-restricted to law-making, whilst that of the courts is to interpret those laws. Even though this separation is not water-tight, under a Federal Constitution – in the absence of an explicit and unambiguous mandate – it has never extended to the Legislature enacting rules guiding the practice and procedure of courts. That tradition is maintained by the 1999 Constitution, which denies that power completely to State Houses of Assembly; rather, it confers it on the heads of State courts – albeit subject to laws made those Assemblies.
In the case of the National Assembly, the Constitution confines the adjectival law-making power of the National Assembly to those things which are merely incidental or supplementary to its powers to enact laws on specific matters, as specified in the Exclusive Legislative List of the Constitution. In other words, that power is not self-executing. ACJA is a radical departure from this tradition. While admittedly not all it’s provisions are adjectival in purport, the vast majority of ACJA’s prescriptions pertain to practice and procedure of the courts in criminal trials. To the extent that the National Assembly purports to usurp the functions which the Constitution specifically confers on the heads of Federal courts in that regard, I believe a plausible case can be made for invalidating it’s affected provisions. The alternative is to reduce the rule-making provisions of heads of Federal courts in the Constitution, to mere dead letters.