Developing a Theory of Constitutional Silence and Gap-Filling in Nigerian Public Law: Lessons from Comparative Constitutional Adjudication

Constitutional texts inevitably contain silences, ambiguities, and gaps that courts must fill through interpretive choices, and the theoretical principles governing how those gaps should be filled have significant consequences for constitutional governance. In Nigeria, constitutional silences on issues including the constitutional status of digital rights, the rights of future generations, and the residual powers of local governments have generated judicial improvisation without a coherent theoretical foundation. This study develops an original theory of constitutional silence and gap-filling in Nigerian public law, examining the conditions under which judicial gap-filling is constitutionally legitimate, the methodological approaches available, and the limits of judicial gap-filling in relation to legislative competence. The methodology combines a doctrinal analysis of Supreme Court and Federal Court of Appeal decisions involving constitutional silences from 1999 to 2023, with comparative theoretical analysis of gap-filling jurisprudence from Germany's Federal Constitutional Court, the South African Constitutional Court, and the Indian Supreme Court. The study uses Comparative Constitutional Theory, the Constitutional Interpretation Completeness Doctrine, and the Implicit Constitutional Norm Theory to construct the original analytical framework. The study's original contribution is a Constitutional Gap-Filling Theory for Nigerian Public Law that distinguishes permissible judicial interpretation from unconstitutional judicial legislation. Findings generate doctrinal criteria for gap-filling legitimacy and a proposed Supreme Court Practice Direction on constitutional interpretation methodology. Keywords: constitutional silence, gap-filling, constitutional interpretation, judicial activism, Nigeria.