CONSTITUTIONAL LAW DIGESTION 2 BY FELIX CHIBUIKE
THE LEGISLATURE
Section 4(1) of the 1999 constitution states that:
The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly
for the Federation, which shall consist of a Senate and a House of Representatives.
Thus, the National Assembly has the power to make, alter, amend and repeal laws. It may
however delegate rule making powers to departments in the executive branch. It should be
taken note of that the legislature cannot generally delegate any of its essential powers to
anybody or persons as was noted by the Supreme Court in AG Bendel State v AG Federation, it
can however delegate regulatory Powers.
CONSTITUTIONAL PROVISIONS RELATING TO THE LEGISLATURE
1. Composition, Election and Qualification
The National Assembly's Senate is composed of three senators from each state of the
Federation. The House of Representatives is made up of 360 members representing different
constituencies (Section 48 of the 1999 constitution). The Senate is headed by a President and
a deputy president while the House of Assembly is headed by a Speaker and Deputy Speaker,
who are to be elected by members of each House amongst themselves (Section 50). According
to section 65, to become members of the Senate and House of Representatives, candidates
must be 35 and 30 years of age respectively and must be Nigerians. Section 65(2) further
states that such candidate must be a part of and sponsored by a political party and have at
least, a Secondary School certificate or its equivalent. By virtue of section 77, election into the
National Assembly is to be by direct election. Before taking their respective seats, all members
of the different Houses must declare their assets and subscribe to the oath of allegiance under
the 7th schedule to the Constitution as embedded in section 52.
State legislatures are unicameral. They cannot, however, be less than 24 or more than 40
members. The House of Assembly is headed by a Speaker and a deputy Speaker (section 93).
2. Disqualification of Members
The grounds for disqualification of membership are contained in section 66. These grounds
range from lunacy to death sentence, bankruptcy, public service employment, inter alia. These
same grounds apply to the State House of Assembly under section 107.
3.Tenure or Loss of Seat
The grounds for the loss of seat of a member of the National Assembly is grounded in section
,68. These grounds range from membership in another legislative house, lunacy, bankruptcy,
occupying an executive position, inter alia. Section 109 stipulates these same grounds for the
State House of Assembly.
POWERS OF THE LEGISLATURE
1.The Main powers of the National Assembly are contained under section 4(2-4)
2.Power over public funds
The National Assembly has the power to make laws in relation to taxation of incomes, profits
and capital gains under item 59 of the exclusive legislative list and the authority to determine
the spending of the public funds. In section 80 of the Constitution, all revenue or moneys raised
or received by the federal government must be laid into a Consolidated revenue fund for the
Federation except where it is for a specific purpose. Thus, moneys from the fund can only be
used for expenditure charged upon it by the constitution or where the Appropriation or
Supplementary Appropriation Act promulgated by the National Assembly had authorized such.
Also, it can only be drawn if authorized under such Acts and in a manner prescribed by the
National Assembly. To obtain such authorization, the president must lay before each house of
the National Assembly, estimates of the revenue and expenditure of the Federation for the
relevant financial year.
The power over public funds for the State legislature is contained in section 162. In subsection
6, the constitution states that each State shall maintain a special account to be called "State
Joint Local Government Account" into which shall be paid all allocations to the Local
Government Councils of the State from the Federation Account and from the Government of the
State. Each State shall pay to Local Government Councils in its area of jurisdiction such
proportion of its total revenue on such terms and in such manner as may be prescribed by the
National Assembly.
3. Impeachment
This is the power of impeachment of the President or Vice President. This power is contained in
section 143
4.Power to Conduct Investigations
Section 88 of the 1999 constitution provides that each House has the power to cause an
investigation into the matters which it has the power to make laws on and the conduct of any
person or ministry charged with certain responsibilities. Seeing how this is a very potent power,
the courts have often prevented the Legislature from utilizing this power to contravene certain
rights. See Adikwu and others v National Assembly, Tony Momoh v Senate where the right to
freedom of Speech and expression of the respective appellants were to be infringed upon.
Section 128 gives power of investigation to the State Houses of Assembly.
,5. Miscellaneous Powers
Under section 214, in relation to the Police force, the National Assembly has the power to
determine by Law, the organization and administration of the force, and may make provisions
for the establishment of different branches of the Force. Under section 217, the National
Assembly has the power to make laws for the adequate equipment and maintenance of the
Armed Forces for the attainment of its purpose. Under Section 218 also, the National Assembly
may make laws regulating the powers of the President as the Commander in chief of the Armed
Forces. Also, the President cannot declare war without the sanction of a resolution of both
Houses of the National Assembly at a joint sitting. Finally, the National Assembly may make
laws for the punishment of those involved in various offences relating to the formation and
organization of political parties.
The House of Assembly of a State under sections 7 and 8 of the Constitution, has the authority
and power to create additional local government areas and determine their structure, finance
and functions.
6.Salaries and Remuneration
The National Assembly has the authority to determine the salaries of certain Federal and State
public officials. It must however not exceed what has been determined by the Revenue
Mobilization Allocation and fiscal commission and cannot be altered to their detriment after
appointment (section 84).
7. Appointment and Removal
The National Assembly, especially the Senate, has authority in the appointment and removal of
some public officers of federation. Thus, the appointment of members of various executive
commissions and heads of the various levels of Federal Courts by the President must be
confirmed by Senate. The removal of these same personnel can be done by the President,
acting on an address supported by two-third majority of the Senate asking for such removal.
LIMITATIONS OF LEGISLATIVE POWERS
the Legislature cannot act or conduct their work in a way contrary to the provisions of the
Constitution. In AG Bendel State v AG Federation, the court declared null, the appropriation bill
passed by the National Assembly in a manner contrary to the provisions of the Constitution.
Section 4(8) also states that the National Assembly or State House of Assembly is subject to
the jurisdiction of the Courts and judicial tribunals established by Law, and shall not oust such
jurisdiction under any law. The same section also provides that both levels cannot make
retrospective criminal laws. This was supported by the court in the case of Adikwu v Federal
House of Representatives.
, THE EXECUTIVE
Section 5(1) of the 1999 constitution thus provides:
(1) Subject to the provisions of this Constitution, the executive powers of the Federation:
(a) shall be vested in the President and may subject as aforesaid and to the provisions of any
law made by the National Assembly, be exercised by him either directly or through the Vice-
President and Ministers of the Government of the Federation or officers in the public service of
the Federation; and
(b) shall extend to the execution and maintenance of this Constitution, all laws made by the
National Assembly and to all matters with respect to which the National Assembly has, for the
time being, power to make laws.
QUALIFICATION AND DISQUALIFICATION
The criteria for qualification for election in to the office of President is provided in section 131
and they include the following: He must be a Citizen by birth, must be at least forty years old, be
a member of a Political party and get sponsored by it and be educated up to at least School
certificate level or its equivalent.
Section 137 deals with grounds for disqualification. A candidate for the office of the President
of Nigeria is disqualified for election on the same grounds as members of the Legislature stated
earlier. Thus, if an aspirant is declared bankrupt or a lunatic, he is automatically disqualified.
The INEC is responsible for organizing the presidential election, which must not be earlier than
Sixty days or later than thirty days before the expiration of the office of the incumbent. By virtue
of section 142, to be qualified for nomination, the President must nominate a Vice President
from his own political party who is regarded as duly elected once the Presidential candidate is
elected. The President is saddled with the responsibility of executing and maintaining the
provisions of the law and in order to attain an achievement of this, the Constitution endorses
the President with certain powers which will be discussed subsequently. It is worthy of note that
the powers of the President are delegable also.Section 142, as stated above, establishes the
importance of the office of the Vice President. The Supreme Court in AG Federation v Abubakar
stated that by virtue of the provision of section 142, it is assumed that the President and Vice
President should maintain the same relationship throughout their term of office. Thus, his
freedom to disagree and criticize can only be privately in a meeting with the President alone or
in the Executive Council. This should not be taken to mean the Vice President is a toothless
bulldog as such, because according to the Court of Appeal in the same case, it is to the Federal
Republic of Nigeria that all persons in government ultimately owe their allegiance. The Vice
President is not given any particular role under the Constitution and it is the President who
determines what role he plays in government.
THE LEGISLATURE
Section 4(1) of the 1999 constitution states that:
The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly
for the Federation, which shall consist of a Senate and a House of Representatives.
Thus, the National Assembly has the power to make, alter, amend and repeal laws. It may
however delegate rule making powers to departments in the executive branch. It should be
taken note of that the legislature cannot generally delegate any of its essential powers to
anybody or persons as was noted by the Supreme Court in AG Bendel State v AG Federation, it
can however delegate regulatory Powers.
CONSTITUTIONAL PROVISIONS RELATING TO THE LEGISLATURE
1. Composition, Election and Qualification
The National Assembly's Senate is composed of three senators from each state of the
Federation. The House of Representatives is made up of 360 members representing different
constituencies (Section 48 of the 1999 constitution). The Senate is headed by a President and
a deputy president while the House of Assembly is headed by a Speaker and Deputy Speaker,
who are to be elected by members of each House amongst themselves (Section 50). According
to section 65, to become members of the Senate and House of Representatives, candidates
must be 35 and 30 years of age respectively and must be Nigerians. Section 65(2) further
states that such candidate must be a part of and sponsored by a political party and have at
least, a Secondary School certificate or its equivalent. By virtue of section 77, election into the
National Assembly is to be by direct election. Before taking their respective seats, all members
of the different Houses must declare their assets and subscribe to the oath of allegiance under
the 7th schedule to the Constitution as embedded in section 52.
State legislatures are unicameral. They cannot, however, be less than 24 or more than 40
members. The House of Assembly is headed by a Speaker and a deputy Speaker (section 93).
2. Disqualification of Members
The grounds for disqualification of membership are contained in section 66. These grounds
range from lunacy to death sentence, bankruptcy, public service employment, inter alia. These
same grounds apply to the State House of Assembly under section 107.
3.Tenure or Loss of Seat
The grounds for the loss of seat of a member of the National Assembly is grounded in section
,68. These grounds range from membership in another legislative house, lunacy, bankruptcy,
occupying an executive position, inter alia. Section 109 stipulates these same grounds for the
State House of Assembly.
POWERS OF THE LEGISLATURE
1.The Main powers of the National Assembly are contained under section 4(2-4)
2.Power over public funds
The National Assembly has the power to make laws in relation to taxation of incomes, profits
and capital gains under item 59 of the exclusive legislative list and the authority to determine
the spending of the public funds. In section 80 of the Constitution, all revenue or moneys raised
or received by the federal government must be laid into a Consolidated revenue fund for the
Federation except where it is for a specific purpose. Thus, moneys from the fund can only be
used for expenditure charged upon it by the constitution or where the Appropriation or
Supplementary Appropriation Act promulgated by the National Assembly had authorized such.
Also, it can only be drawn if authorized under such Acts and in a manner prescribed by the
National Assembly. To obtain such authorization, the president must lay before each house of
the National Assembly, estimates of the revenue and expenditure of the Federation for the
relevant financial year.
The power over public funds for the State legislature is contained in section 162. In subsection
6, the constitution states that each State shall maintain a special account to be called "State
Joint Local Government Account" into which shall be paid all allocations to the Local
Government Councils of the State from the Federation Account and from the Government of the
State. Each State shall pay to Local Government Councils in its area of jurisdiction such
proportion of its total revenue on such terms and in such manner as may be prescribed by the
National Assembly.
3. Impeachment
This is the power of impeachment of the President or Vice President. This power is contained in
section 143
4.Power to Conduct Investigations
Section 88 of the 1999 constitution provides that each House has the power to cause an
investigation into the matters which it has the power to make laws on and the conduct of any
person or ministry charged with certain responsibilities. Seeing how this is a very potent power,
the courts have often prevented the Legislature from utilizing this power to contravene certain
rights. See Adikwu and others v National Assembly, Tony Momoh v Senate where the right to
freedom of Speech and expression of the respective appellants were to be infringed upon.
Section 128 gives power of investigation to the State Houses of Assembly.
,5. Miscellaneous Powers
Under section 214, in relation to the Police force, the National Assembly has the power to
determine by Law, the organization and administration of the force, and may make provisions
for the establishment of different branches of the Force. Under section 217, the National
Assembly has the power to make laws for the adequate equipment and maintenance of the
Armed Forces for the attainment of its purpose. Under Section 218 also, the National Assembly
may make laws regulating the powers of the President as the Commander in chief of the Armed
Forces. Also, the President cannot declare war without the sanction of a resolution of both
Houses of the National Assembly at a joint sitting. Finally, the National Assembly may make
laws for the punishment of those involved in various offences relating to the formation and
organization of political parties.
The House of Assembly of a State under sections 7 and 8 of the Constitution, has the authority
and power to create additional local government areas and determine their structure, finance
and functions.
6.Salaries and Remuneration
The National Assembly has the authority to determine the salaries of certain Federal and State
public officials. It must however not exceed what has been determined by the Revenue
Mobilization Allocation and fiscal commission and cannot be altered to their detriment after
appointment (section 84).
7. Appointment and Removal
The National Assembly, especially the Senate, has authority in the appointment and removal of
some public officers of federation. Thus, the appointment of members of various executive
commissions and heads of the various levels of Federal Courts by the President must be
confirmed by Senate. The removal of these same personnel can be done by the President,
acting on an address supported by two-third majority of the Senate asking for such removal.
LIMITATIONS OF LEGISLATIVE POWERS
the Legislature cannot act or conduct their work in a way contrary to the provisions of the
Constitution. In AG Bendel State v AG Federation, the court declared null, the appropriation bill
passed by the National Assembly in a manner contrary to the provisions of the Constitution.
Section 4(8) also states that the National Assembly or State House of Assembly is subject to
the jurisdiction of the Courts and judicial tribunals established by Law, and shall not oust such
jurisdiction under any law. The same section also provides that both levels cannot make
retrospective criminal laws. This was supported by the court in the case of Adikwu v Federal
House of Representatives.
, THE EXECUTIVE
Section 5(1) of the 1999 constitution thus provides:
(1) Subject to the provisions of this Constitution, the executive powers of the Federation:
(a) shall be vested in the President and may subject as aforesaid and to the provisions of any
law made by the National Assembly, be exercised by him either directly or through the Vice-
President and Ministers of the Government of the Federation or officers in the public service of
the Federation; and
(b) shall extend to the execution and maintenance of this Constitution, all laws made by the
National Assembly and to all matters with respect to which the National Assembly has, for the
time being, power to make laws.
QUALIFICATION AND DISQUALIFICATION
The criteria for qualification for election in to the office of President is provided in section 131
and they include the following: He must be a Citizen by birth, must be at least forty years old, be
a member of a Political party and get sponsored by it and be educated up to at least School
certificate level or its equivalent.
Section 137 deals with grounds for disqualification. A candidate for the office of the President
of Nigeria is disqualified for election on the same grounds as members of the Legislature stated
earlier. Thus, if an aspirant is declared bankrupt or a lunatic, he is automatically disqualified.
The INEC is responsible for organizing the presidential election, which must not be earlier than
Sixty days or later than thirty days before the expiration of the office of the incumbent. By virtue
of section 142, to be qualified for nomination, the President must nominate a Vice President
from his own political party who is regarded as duly elected once the Presidential candidate is
elected. The President is saddled with the responsibility of executing and maintaining the
provisions of the law and in order to attain an achievement of this, the Constitution endorses
the President with certain powers which will be discussed subsequently. It is worthy of note that
the powers of the President are delegable also.Section 142, as stated above, establishes the
importance of the office of the Vice President. The Supreme Court in AG Federation v Abubakar
stated that by virtue of the provision of section 142, it is assumed that the President and Vice
President should maintain the same relationship throughout their term of office. Thus, his
freedom to disagree and criticize can only be privately in a meeting with the President alone or
in the Executive Council. This should not be taken to mean the Vice President is a toothless
bulldog as such, because according to the Court of Appeal in the same case, it is to the Federal
Republic of Nigeria that all persons in government ultimately owe their allegiance. The Vice
President is not given any particular role under the Constitution and it is the President who
determines what role he plays in government.
