THE major theories of law, the validity of law either by its moral content, its effect on the society, its effectiveness or the process or legitimacy of bringing the law into being is the foundation of validity granted. Though law may be valid without having a legitimate foundation or without being legitimate. An example of the latter proposition may be seen in actions that are unconstitutional but are nonetheless valid. The National Assembly may make a law, which is unconstitutional but which is valid and enforceable and remains a law until declared to the contrary by a court of law. A law is valid if its source is legitimate at least in terms of the prevailing legal order. However, legitimacy is a different proposition altogether in that it can be imposed (like under a military regime by means of a Decree) or it can be freely given by a most superior authority (like in a democracy by the people).According to Hans Kelsen, chief proponent of the Pure Theory of Law, a branch of Legal Positivism, the legitimacy of every law is traceable to a basic norm, which he called the grundnorm. The grundnorm denotes the basic norm, order, or rule that forms an underlying basis for a legal system. This theory is based on a need to find a point of origin for all law, on which basic law and the constitution can gain their legitimacy.The grundnorm itself owes its legitimacy to an identifiable sovereignty.It is in the light of the foregoing that one feels the need to address the view point recently expressed by the Deputy Senate President and Chairman of the National Assembly Constitution Review Committee, Ike Ekweremadu. He made the point that a sovereign national conference was untenable since it already resides with the 1999 Constitution of Nigeria as amended.Even in the classical Benthamite legal order, as well as the Austinian legal order where law is 'what is' as against 'what ought to be', it is an aberration to insinuate like the eminent Deputy Senate President did, saying that sovereignty lies in the current Nigerian Constitution.For example, in the Austinian positivism, sovereignty lies with a determinable human superior not subject to another human superior or sovereign and which must be continuous and unlimited by time or law. The 1999 Nigerian Constitution is neither of the above. Since sovereignty lies with the Parliament only in a parliamentary system of government where the parliament can do all things except turn man into woman and vice versa, sovereignty in Nigeria, being a presidential system, lies with the people through whom all laws must draw its legitimacy as different from validity.The distinguished senator seemed to gloss over the fundamental and irrebutable fact that the current 1999 Constitution even as amended and as yet to be amended is in fact and indeed Decree 24 of 1998 made by the Military junta led by Gen. Abdusalam Abubakar.The military regime spoke for the Nigerian people without asking them their views. The regime went ahead to declare that the same constitution, which the Nigerian people never made any input or contribution to, was made by the same people!Assuming without conceding that the Constitution was made by the people, can we say that the people left themselves to the Constitution in absolute terms without reserving some rights over the Constitution' I most respectfully think not. There is no doubt that the people are still superior to the Constitution. Even while succumbing to the operativeness of the 1999 Constitution albeit forcefully, the people of Nigeria still reserve some 'deep lying rights' which have never been ceded by them in the Constitution or otherwise to Parliament (National Assembly) or to any of the other organs of government.Senator Ekweremadu seemed to disregard these deep lying rights of the people, including the right to make a Constitution for themselves and not to have one made for and imposed on them by a military Decree.Ikeji is a Lagos-based legal practitioner.
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