Addition to qualifications fixed by the Constitution
We agree with the Plaintiff and the Attorney General that the effect of section 16(2)(a), which restricts dual citizens from occupying the office of Chief Justice and Justice of the Supreme Court, amounts to an unconstitutional amendment of Article 128(4) as it imposes a further qualification criteria which was not contemplated or endorsed by the Constitution on persons who are serving as justices of the Supreme Court. This backdoor attempt to impose a further qualification criterion on members of the Apex falls foul of not only the principles of procedural constitutionalism by reason of the Acts failure to be passed in accordance with the prescriptions of Article 289 and 291; but also of the substantive text of the constitution as it is directly inconsistent with the scope of the criteria set out in Article 128(4). The qualification criteria set out in Article 128(4) is exhaustive and cannot be arbitrarily increased or reduced by Parliamentary fiat, except in accordance with the dictates of the Constitution.
Effect of an enactment that amends the Constitution without following the amendment procedure
In the circumstances we find that section 16(2)(a) and 16(2)(h)-(l), which constituted amendments to the Constitution ought to have been undertaken through the prescribed channels of formal amendment as prescribed under Articles 289 and 291. Having failed to do this, we exercise our authority under Article 2(2) of the 1992 Constitution to strike down the said sections as being unconstitutional. Accordingly sections 16(2)(a) and 16(2)(h)-(l) of the Citizenship Act, 2000 (Act 591) are hereby struck down as unconstitutional, same being inconsistent with and contravention of Article 289 and 291 of the Constitution.
The concept of supremacy of the Constitution does not admit of any exception invested in any institution or person to take away or obliterate the Constitution and its values. The prescriptions, letter, values, conventions, and spirit of the Constitution are carried into effect through procedure. Therefore, procedure mandated by the Constitution cannot be negatived by any official or institutional conduct without recourse to the clear tenets of the Constitution. The supremacy of the Constitution is not only entailed in the substantive values of the constitutional provisions but also in the prescribed procedure through which such provisions are executed or amended.
The free hand of Parliament to amend the Constitution is also constrained by the prescribed procedure, and in some relevant context, the substance. There is no power vested in Parliament to unilaterally ignore the procedure through which the Constitution is to be amended. If Parliament wishes to effect an amendment to the Constitution, it must do so in accordance with what procedure the Constitution laid down, enshrined in Chapter 25.
Black’s Law Dictionary (9th Edition) defines ‘amend’ as “to change the wording of; specifically to formally alter (a statute, constitution, motion, etc.) by striking out, inserting words or substituting words” A mutatis mutandis application of this definition infers that where there is an addition or deletion of words to those originally set out in a constitutional provision, then the said constitutional provision, to the extent of that insertion or deletion, has been amended.
