Lesson 1: Constitutional and Administrative Law for Postgraduates

SUMMARY

• Rule one: comparators must be similar; methods: functionalism, contextualism, transplants.
• Families: common law (precedent, adversarial); civil law (codes, inquisitorial); mixed (SA, Botswana; SL formal + customary).
• Alexkor: indigenous law an independent, original source, subject only to the Constitution.

35. Theme One: Constitutional Design: Federalism, Unitary States, Decentralisation

Federal design entrenches two orders of government, each with constitutionally protected powers: a written constitution, an umpire court and (usually) a bicameral legislature whose upper house represents the units. Nigeria is the region’s laboratory: exclusive, concurrent and residual legislative lists distribute power, and the Supreme Court referees. Two lines of authority matter. On fiscal federalism, the Court has policed the vertical flow of money: in the Abia State litigation over the Monitoring of Revenue Allocation to Local Governments Act, it curbed federal attempts to control state handling of local government allocations, and in Attorney-General of Lagos State v Attorney-General of the Federation it held the President’s withholding of statutory allocations from Lagos local councils unconstitutional; and in July 2024 it completed the arc by ordering direct federal payment to local governments as constitutional entities entitled to financial autonomy. On regulatory federalism, Attorney-General of the Federation v Attorney-General of Lagos State (2013) upheld Lagos State’s power to regulate hotels and tourism within its territory as residual matters, rebuffing federal monopoly claims.

Unitary design with decentralisation keeps sovereignty fused at the centre, then devolves administration by ordinary statute, revocable in principle. Sierra Leone is the type-case: local councils were re-established by the Local Government Act 2004 and the framework renewed by the Local Government Act 2022, with functions devolved by schedule; the councils are creatures of statute, not co-sovereigns. The United Kingdom shows a unitary state travelling: devolution statutes for Scotland, Wales and Northern Ireland created powerful legislatures, yet Westminster retains legal sovereignty, as Miller confirmed. Kenya, a unitary state with entrenched devolution, sits between the poles: its 2010 Constitution constitutionalises counties, and in Council of Governors litigation the courts have policed the boundary between national oversight and county autonomy, holding for example that senators’ oversight of nationally allocated county revenue is constitutional while defending the counties’ constitutional space.

Case Study: R (Miller) v Secretary of State for Exiting the European Union UKSC 5

Facts. After the 2016 Brexit referendum, the UK Government proposed to trigger Article 50, beginning withdrawal from the EU, using prerogative power alone, without an Act of Parliament. Gina Miller challenged this. Issues. Can the executive use prerogative power to start a process that will strip statutory rights? Do the devolution conventions give Scotland, Wales and Northern Ireland a veto? Decision. The Supreme Court (8-3) held that only Parliament could authorise the trigger: prerogative cannot be used to nullify rights Parliament created; Parliament has ultimate legislative authority. On devolution, the Sewel convention, that Westminster will not normally legislate on devolved matters without consent, is a real convention but not judicially enforceable:

no veto. Why it matters. It is the modern flagship of parliamentary sovereignty, of the limits of executive power, and of the law-convention divide, and it shows courts umpiring the deepest political controversy without deciding its merits. For Sierra Leone, replace prerogative with s 53 executive power and the lesson holds: the executive cannot, by unilateral act, undo what statute has conferred.

SUMMARY

• Federal: entrenched two-order government; Nigeria’s lists and fiscal cases (Abia 2006; Lagos 2004; LG autonomy 2024; Lagos hotels 2013).
• Unitary + decentralisation: SL (LGA 2004 then 2022, statutory councils); UK devolution under sovereignty (Miller); Kenya entrenched devolution (Council of Governors).
• Miller: prerogative cannot defeat statute; Sewel convention non-justiciable.

Case Study: A v Secretary of State for the Home Department UKHL 56 (Belmarsh)

Facts. After 11 September 2001, the UK authorised indefinite detention without trial of foreign nationals suspected of terrorism who could not be deported, derogating from art 5 of the European Convention on the ground of a public emergency; suspects were held at Belmarsh prison. Citizens suspected of exactly the same conduct could not be so detained. Issues. Was there a qualifying emergency? Was indefinite detention of foreigners only a proportionate and non-discriminatory response? Decision. The House of Lords (8-1 on the main point) accepted that an emergency existed (deferring to the executive on that) but held the scheme disproportionate and discriminatory: it irrationally targeted foreign suspects while leaving equally dangerous citizens free, and detention without trial struck at liberty itself. The court issued a declaration of incompatibility; Parliament replaced the scheme. Lord Hoffmann, dissenting on the emergency question, wrote that the real threat to the life of the nation came not from terrorism but from laws such as these. Why it matters. It is the leading Commonwealth authority on emergency powers meeting proportionality and equality, and a working demonstration of the s 4 mechanism: the statute survived, and politics cured it.