Hot SourceNICHOLAS EBEHIKHALU argues that Decree 24 of 1999 cannot take the place of a referendum by the people
Grundnorm is a German concept used in the pure theory of law. It was used in the theory to denote the basic norm, order or rule that forms the foundation of any legal system. The theory was created by Hans Kelsen, an Australian Jurist and a Legal Philosopher (1881 – 1973). The theory was based on the need to find a point of origin for all laws, or to find a point of origin on which constitution as a body of basic laws gain its legitimacy. The theory also known as Normativity theory, centers on the normative nature of law which means that laws necessarily consist of norms. It talks about pure law which excludes all factors affecting the definition of law such as morality, ethics, economics, and sociology, etc., so that the law can stand on its own.
According to Kelsen, a norm is a law or rule prescribing human conduct and behavior in a society. He distinguished between legal norms and moral norms. He stated that moral norm is “what a person should do or not do” but the legal norm states that if a person does any act against the norm then he would be punished by the state. Every norm exists in a hierarchical system (and being hierarchical in nature), derives its existence and validity from its supreme norm called the basic norm or grundnorm, which does not derive any existence or validity from any other source.
In every legal system, grundnorm is self existed. It is sui generis, meaning that, it stands on its own and does not come from any other source or derives its validity from any other source or be tested by any other source. For instance Sub Delegated Legislation derives its validity from the Delegated Legislation. Delegated Legislation derives its validity from the Act of Parliament and the Act of Parliament derives its validity from the Constitution, and the Constitution is to be in accordance with the basic norm or grundnorm which of course derives no validity from any source. This means that the legality or validity of each norm is to be decided by the higher norm until it gets to the position of the grundnorm. The process of one norm deriving its power from the norm immediately superior to it, until it reaches the grundnorm was termed by Hans Kelsen as “concretization” of the legal system. Thus, every legal system is based on series of norms which derive its validity from a Grundnorm.
The Grundnorm can therefore be described as the ultimate, supreme or highest norm in the society from which other norms emanate. It is the justification for the rest of the legal system or justification for the rest of the laws prevalent in the society. Kelsen stated that in a legal system, there is a chain of authorization, to the extent that a legal norm can gain validity or can be created in accordance with another “higher” legal norm that authorizes its creation, and the “higher” legal norm in turn is legally valid if and only if, it has been created in accordance with yet another “higher” norm that authorizes its enactment. In other words, in a country having its own constitution and the states having their own laws or legislation, it is from within the boundary and content of the constitution of the country that each state’s legislature can enact their types of laws of legislations. But what makes this the law? The state’s legislation confers this power on the state legislature to enact laws within certain authorized limits of jurisdiction and content. But then what makes the state’s legislation legally valid? The answer is that the legal validity of the law of a state derives from the authorization granted by the nation’s constitution. It is at this stage that the chain of authorization comes to an end on the ground that there is no higher legal norm that authorizes the enactment of the constitution. However, what makes the constitution or a nation’s constitution legally valid? At this point, Kelsen argued that one must presupposed the legal validity of the constitution based on the fact that there is a rule behind every constitution, and he described the normative content of the presupposition as Grundnorm. It is for this reason that he said that grundnorm is not the constitution, it is simply the presupposition made in the theory for the interests of legal science that this “constitution ought to be obeyed”. Hence, grundnorm only imparts validity to the constitution, and all other norms derived from it.
The presupposition is based on the fact that the constitution does not exist for itself but framed or built or mounted on an ultimate norm. This ultimate norm defines, denotes or elucidates the principles and ideologies of the people. Thus, even though a constitution of nation is the supreme law of the land, but for the fact that there is rule behind the constitution, it cannot be regarded as a grundnorm. All constitutions are constituted on the principles and ideologies which emanates from the worldview, culture, belief, or mores and social consciousness of the people. That is why Americans will tell you that America is a country founded on principles and ideologies of freedom, liberty and pragmatism. These principles and ideologies constitute the grundnorm of United States of America on which their laws and justice system rest. The history of Germany shows that the Germans are idealists in their philosophical disposition; hence the German’s constitution was founded on the principles and ideologies of idealism which serve as the grundnorm of Germany. In India context, the principle of justice, liberty, equality and fraternity guided the framers while constituting the constitution. Hence the principle can be rightly called the grundnorm because the constitution is based on these principles and every law including the constitution is judged on the basis of these principles in India.
So, the constitution and grundnorm cannot be used interchangeably or synonymously. It is an act of mendacity or terminological inexactitude or exaggeration to use the concepts interchangeably. Hence, the 1999 Constitution of the Federal Republic of Nigeria is not the grundnorm of Nigeria. If anything should be taken as the grundnorm of Nigeria, it would be the military philosophical temperament or disposition; characterized with exploitation, oppression, enslavement, victimization and subjugation. It is on these philosophical temperaments that the 1999 Constitution of the Federal Republic of Nigeria was founded. The 1999 Constitution was midwifed by the military government of General Abdusalami Abubakar, pursuant to the promulgation of the Constitution of the Federal Republic of Nigeria Decree No. 24 of 1999. Nigeria must ensure that its constitution is framed properly and mounted on the principles and ideologies in Nigeria. Nigeria must take notice that what determine the content and character of the laws of a people, nation, country or society is the grundnorm which represent the mores, culture and social consciousness of the people. It is these that provide explanations, justifications and validation for their laws. Nigeria is a multinational society and in spite of that, the many nations can be made to come together and harmonize their various elements of culture, beliefs, history, psychological traits and language to become a nation and have a common principles and ideologies from which it will have its grundnorm. The Decree No. 24 of 1999 cannot therefore take the place of a referendum by the people in the making of the constitution. The people must constitute a constitution based on their principles and ideologies.
Prof. Ebehikhalu is Head, Department of Geography and Environmental Management, University of Abuja
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