Constitutional law Note

There is no generally accepted definition of what the constitution is.

Constitution is a fundamental principle or established precedents according to which a state or
other organization is governed.
A constitution is an aggregate of fundamental principles or established precedents that constitute
the legal bases of a polity or Organisation or other type of entity and commonly determines how
that entity is to be governed.
It is the basic principles and laws of a nation, state or any social group that determines the powers
and duties of a government and guarantees certain rights to the people in it.
A constitution is primarily a set of rules and principles specifying how a country should be
governed how power is distributed, controlled and what rights citizens possess.
The black law dictionary says a constitution is the fundamental organic law of a nation or state
that established the institution and system of government or defines the scope of governmental
sovereign powers and guarantees the people’s civil rights and civil liberties.
The Constitution is a body of law which defines the roles powers and structure of different entities
within a state namely, the executive, the parliament or legislature and judiciary or judicature as well
as the basic roles of citizens.

N/B: Constitution is the supreme law or the “Grundnorm”

Main Features or characteristic of a constitution

1. Constitution is the supreme law of the land; it’s the Grundnorm
2. Constitution is the framework of any government
3. A constitution is the legitimate way to grant and limit powers of government officials, tiers of
government and organs of government.
4. The Constitution gives the people the power to elect people of their choice
5. Every constitution guarantees checks and balances.

Features of a good constitution

1. Adaptability: it adapt to changes or changing circumstances. It should have provision for
amendments
2. Separation of powers of the government
3. When it has proper representation of people in government
4. It protects the fundamental human rights of the citizens
5. It guarantees the independence of the judiciary

Sources of Constitution
1. Opinion of some political and constitutional writers
2. Constitution of other countries
3. Customs and convention
4. Judicial precedents
5. Previous Constitution
What is constitutional law
- is a body of rules, doctrines and practices that govern the operation of a state.
- Is the body of law that evolves from a constitution setting out fundamental principles according to
which a state is governed and defining the various branches of government
- Defined as those laws which regulates the structure of the principal organs of government and
their relationship with each and determine their main functions
- Constitutional law pervades all areas of law because there is hardly any department of law which
does not at one time or the other becomes of constitutional importance

Sources of constitutional law

1. Constitution
2. Legislation - Ordinances, act of the National Assembly, laws, decrees and edicts and by-laws
3. Judicial precedents
4. Customary law
5. Islamic law
6. Received English law; common law
7. Equitable doctrines and statues of general laws of application

5 July 2021
According to Aristotle constitution is the way of life the state has chose for itself. The Constitution
is the embodiment of the will of the people on how they want to live and govern themself, that is
why in all the constitution it is visible ‘we the people’

Sources of the constitution

1. The people themselves- The people’s will
2. Key historical events in the development of constitutional law eg. International treaties, French
Revolution
a. Academic works of jurists
b. International treaties
c. Magna Carta of 1215
d. The American Revolution 1775 to 1783
e. French Revolution
f. Petition of rights
Core historical events that determine sources of a constitution

Classification of Constitution
Constitution are widely classified into two categories written and unwritten constitution, rigid and
flexible constitution .

Written Constitution
Written constitution is the one in which the fundamental principles concerning state amendment
and administration are embodied and has as a specific document being passed by a specific body.
In other words a written constitution is one that can be produced and shown as a written document.
A written constitution is contained in a single document or a series of documents with or without
amendment defining the basic rules of the states.
The origins of written constitution lies in the American war of Independence
Countries that have written constitutions are USA, Nigeria, India, Bangladesh.

Unwritten constitution
Where the constitution has not been passed formally as a specific document by a specific body and
fundamental principle concerning states administration exist in political customs, judicial decisions
and in some scattered documents, the constitution is called an unwritten constitution. Britain is
one Landmark country that operates an in written constitution.

What Britain has is an accumulation of various statutes ,conventions, political customs, judicial
decisions, treaties and they exist in some scattered documents which collectively can be called or
referred to as the British constitution. Also Saudi Arabia and New Zealand also operate an
unwritten constitution

In needs to be noted that these classifications of constitution is not scientific because no

constitution can in practice be fully written fully unwritten.
The point is that an unwritten constitution must have some written elements likewise a written
constitution cannot be fully written but some elements of it exists in an unwritten form. In other
words , every written constitution has an unwritten element in it and every unwritten constitution
has some written elements in it. For example the British constitution is said to be unwritten but
some important elements of it are contained in written documents like Magna Carta, bill of rights
petitions of rights acts of settlements etc.

On the other hand do US constitution is written but some important constitutional subjects like
political party organization, cabinet, committee of Congress, working procedure of Congress etc
are not written but are largely based on political customs or conventions. Furthermore, the
Bangladesh Constitution is a written one but the political party organization appointment of Chief
Justice, formation or collision governments are not written these are based on conventions. This
is why the distinction between written or unwritten constitution is one of the degree rather than a
form.
Please note that this kind of distinction between written and on written constitution is fictitious or
illusory, the better way is to call them documentary/qualified and non-documentary/un-codified
Constitution.

Classification according to the mood of amendments or method of changing the constitution

This classification rests primarily on whether or not some constitution can be easy amended The
Constitution would be flexible/elastic or rigid/in elastic

A Flexible constitution
a flexible constitution this is a kind of constitution that Can easily be amended or changed in other
words this kind of constitutional has few or no special amendments procedure
The procedure of amending the flexible constitution is largely the same with the Presidio of
amending all the laws of the country example Canada and UK

A Rigid constitution or inelastic constitution is the kind of constitution that cannot be easily
amended. it has special procedures for its amendment.

Functions of the constitution; that means why should we have a constitution.

1. the essence of having a constitution is to organize distribute and regulates state powers in other
words Constitution sets out the structure of the states they may just the institutionAnd the principles
governing the relationship with each other
2. It Legitimizes states powers that is it’s creates basic legal framework we do in vital states powers
that can be organized
3. It gives legitimacy to the governments and defines the powers under which the government may
act in other words it sets the limits boots to the powers which can be exercised into the manner in
which they can be exercised
4. Constitution distributes separate and control the legislative executive and judicial powers

Federal Constitution
What is Federal Constitution?
It needs to be noted that whether a country has a federal or unitary constitution will depend on how
the constitution shares, organises powers between the central and sub-national units ie. Sharing
powers between the federal government and federal units. A federal constitution is one which sets
up a system of federalism within a country, that is to say such a constitution gives specific rights
and powers to the National government and the federating units. This kind of Constitution spells
out the structure of the federal government and regulates how both the federal government and the
federating units work. In other words it sets up or sets out the norms that govern the distribution of
political powers among the branches of government.
A federal constitution is a document that area out in detail the precise nature of the relationship
between the governors and the governed, between the centre of power and peripheral. This is very
important because in the federal system power is divided between the federal government and the
state government..
In other words, the federal Constitution is one which sets up a system of Federation within a
country. Federalism is a political system in which the national government and smaller governmens
(states / provinces) each have their own powers that are specified by the constitution.
That is to say in a federal system certain rights and powers are given to the national government and
State government. The national government does not determine what rights and powers the state
have and the state government do not determine what rights and power the federal government has.
Some federal constitution give more power to the national government and less powers to the state
government.
It is important for us to note that for a federal system to operate effectively. It is essential for the
precise division of powers and responsibilities to be set out clearly in the federal Constitution. It's
however important to note that no matter how carefully a federal constitution is drafted it is nearliy
impossible to avoid conflict between different levels concerning the appropriate exercise of power.
Features of federal constitution
1.Distribution of powers ; the constitution must be clear on how powers are distributed.
2.Supremacy of the Constitution; the supreme in every federal state. Every federal state as derives it
validity from the constitution
3.There must be written constitution
4.There must be a rigid constitution

Examples of countries with a federal constitution Nigeria, USA, Argentina, Brazil, Switzerland,
Australia, India etc.

Unitary Constitution
26/7/21

A unitary Constitution is the opposite of a federal Constitution, in a unitary Constitution all powers
are centralized in the hands of a central government.A single central govt controls the whole state
with full might. Although the state may be divided into provinces nd other units, but these divisions
are administrative in their nature. These subdivisions completely work under the supervision and
control of the central government. In a unitary form of government, the political authority is
centralized, unitary states is useful for those states where there are no strong nationalities or in
small states. A unitary Constitution provides for a unitary system of government.
Characteristics of a Unitary Constitution
1) Centralization of power: in every unitary system, power is centralized
2) It's a single and simple government:
3) Uniformity of Laws
4) No distribution of powers
5) Flexibility of constitution
6) Despotism
Merits of Unitary System
1) It has a strong government
2) It's a single administration
3) Simple and Less Expensive to Operate
4) Suitable for small countries
5) Very useful to meet emergency situations
Demerits of unitary System
1) It can produce a dictator since all powers lie in the hands of a single person
# find out countries that practice this, Japan, United Kingdom and France

Presidential System of Government.

This is a kind of government sometime called a single executive system, which the president leads
an executive branch that is separated from the legislative branch through the use of separation of
powers. This head of government is in most cases the head of state. The president is elected and not
responsible to the legislature which cannot in normal circumstances dismiss it. Such dismissal
is possible however in uncommon cases often through impeachment. It is based on the principle of
separation of powers between the executive and legislature. under this system the executive is
independent from the legislature. The chief executive is independent as to his tenure and to a large
extent as to his policies and act. To this extent the head of state is the real. It's based on sharing of
powers amongst independent and coordinate branches of government. Most presidential systems
of government the president is not only the chief executive but is elected by the people. In this
system all the three branches are Constitutionally independent of one another. Meaning no branch
can dismiss any other branch. The president is responsible for enforcing laws, the legislature for
enacting laws d judiciary for interpreting the laws. In this system specific powers are given to check
and balance all other branches.
Features Presidential System
1)The President is the real head of state as well as government
2) Clear example of separation of powers between the three organs of government
3) Checks and balances
4) The President is elected by the people because democracy is about the people
Merits Presidential System
1) Stable form of government because the elected for a fixed form of fours year's.
2) Separation of powers, checks and balances
3) Very suitable for emergency
4) It encourages able men to be appointed
Demerits of Presidential System
1) The President can become despotic due to his long term in office
2) Dead laws between the organs of sgovernment
3) Extreme checks and balances can become antithetical to economic planning
4) Rigidity of the Constitution can lead to problems as it may not be able to handle emergencies
5) Due to conflict of interest it can lead to disharmony among the organs of government
countries that have federal system of government United States of America, Afghanistan, Algeria,
Mexico, Argentina, Belarus, Costa Rica, Ghana, Guinea, Angola, Brazil, Columbia, Russia, South
Korea, Dominican Republic

Parliamentary System of Government

This system is also called the cabinet system because it is the nueclus of power in the parliamentary
system. its is also called cabinet system because the cabinet is accountable to the parliament. In
modern times this system this system is called west minster. A primer minister in the Uk is known
as. parliamentary systems owe their name to their founding principle namely "parliament is
supreme"
It is a democratic form of government in which a party or coalition of parties with the greatest
representation in the parliament forms the government. its leader becomes the prime minister. The
executive functions are exercised by members of the parliament by the prime minister to the
cabinet.
A parliamentary system of government is a system of democratic government of a state where the
executive derives its democratic legitimacy from its ability to command the support of the
legislature. In a parliamentary system the head of state is usually a person distinct from the head of
government. Members of the legislature are individually and collectively responsible to the
legislature. Countries with parliamentary democracies may be constitutional monarchies where a
monarch is the head of state while the head of government is almost always a member of
parliament.For instance Denmark, Norway, Sweden where the head of state is monarch and the
head of government is a member of the parliament. Parliamentary democracies can also be
parliamentary republics where a ceremonial president is the head of state while the head of
government is from the legislature e.g Nigeria, Italy, Pakistan, Singapore, Germany. In few
parliamentary republics such as Botswana and south Africa the head of state is usually the head of
government but is elected by the people but the paradox is that he's answerable to the Parliament.
Characteristics of Parliamentarianism
1) In this system legislature and executive are closely related
2) The parliament is formed by the cabinet but the Parliament is supreme
3) There are two executives in this system., the executive represent
Features of Parliament System
1) Formation of cabinet: when election is over the prime minister nominates his members of his
cabinet
2) Team work spirit : Here the ministers work together as a team and also fall together if a vote of
no confidence is passed on any member
3) The prime minister is superior and has many powers, he a the leader of the house in the
legislature and the leader of council in the executive, he appoints, removes, appoints portfolios,
4) The prime minister acts as a bridge between the cabinet and the president (shining moon/ galaxy
of stars)
5) A prime minister coordinates powers of the legislature and executive
5) The term of the cabinet a fixed but not in a rigid sense
Merits of Parliamentary System
1) Harmonious relationship amongst the organs of government
2) Both are inter dependent
3) Less conflict or dispute among the organs of government
4) It is a responsible government since the ministers are responsible to the Parliament
5) This system of government prevents despotism reason is not vested in any person but in a group
of individuals called council of ministers and they are responsible to the parliament
6) If a vote of confidence is issued the whole parliament is dissolved
Demerits of parliament System of
Government
1) It does not have stable government
2) The ministers depend on majority support from other ministers for their stay in office
3) No continuity of policies: once there is change in the ruling class there will be no continuity of
policies
4)The system is against separation of powers
which system best suits Nigeria?
THE DOCTRINE OF SEPARATION OF POWERS UNDER THE NIGERIAN CONSTITUTION:
A CRITICAL OVERVIEW
By
Duru, Onyekachi Wisdom Ceazar
(Email: onyekachiduru@gmail.com; Tel: +234-8037707496)
Readers are reminded that this work is protected by copyright. While they are free to use the ideas
expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed,
electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are
permitted to make copies, electronically or printed, for personal and classroom use.
Abstract
A complete separation of powers is neither practicable nor desirable for effective government. This
essay argues that a watertight separation of powers is impracticable under the 1999 Constitution of
Nigeria. In so doing, the paper is divided into three distinct but related segments. The first segment
is made up of the meaning and nature of separation of powers. Whereas the second segment
focuses on the factors that limit the strict application of the doctrine; the last segment is the
conclusion.
Introduction
The principle of separation of powers is regarded as one of the basic principles of public law.
Separation of powers
Modern government should be a co-operative, co- ordinated effort and not a tug of war between the
Electronic copy available at: http://ssrn.com/abstract=2142933

principal organs of government. Separation of executive and legislative function is necessary and
desirable if limited government and individual liberty are to be secured but certainly not a rigid
separation.1
In the light of the foregoing, this paper focuses on the critical analysis of the doctrine of separation
of powers. The view as expressed in the paper is to the effect that, absolute separation of powers is
impracticable in recent times; considering the various factors that appear to frustrate and limit the
strict application of the doctrine.
The paper is divided into three distinct but related segments. The first segment is made up of the
meaning and nature of separation of power. Whereas the second segment focuses on the factors that
limit the strict application of the doctrine; the last segment is the conclusion. Lastly, special
emphasis has been placed on the provisions of the 1999 Constitution vis-à-vis separation of powers.
Meaning and Nature of Separation of Powers
Separation of powers2 is the division of the powers and functions of
government among the three independent and separate arms of government;
that is, the legislature, executive and judiciary, to act as a check and balance
on one another and prevent the excesses and abuse of powers. The primary
purpose of the concept is to guard against dictatorial rule by avoiding
concentration of all the powers of government in one hand, or more than one
1 Report of the Constitutional Drafting Committee, vol. 1, 1976 p. XXXIII
2 In commonwealth countries in Africa, this concept means a little more than an independent
judiciary.
2
 Electronic copy available at: http://ssrn.com/abstract=2142933

person being involved in more than one of the powers of government or one arm of government
exercising control over the other.
The doctrine of separation of powers as it is understood today came largely from the work of the
French Jurist Baron De Montesquieu in his book The Spirit of Law (chapter XI) who studied and
expanded the work of John Locke.3 He was concerned with the preservation of political liberty of
the citizen. According to him:
Political liberty is to be found only when there is no abuse of power. Experience shows that every
man invested with power will abuse it by carrying it as far as it will go... to prevent this abuse, it is
necessary from the nature of things that one power should be a check on another...when the
legislature, executive and judicial powers are united in the same person or body..., there can be no
liberty...Again there is no liberty if the judicial power is not separated from the legislative and
executive...There would be an end of everything if the same person or body whether of the nobles
or of the, people, were to exercise all three powers.4
The 1999 Constitution of the Federal Republic of Nigeria recognizes the doctrine of separation of
powers.5 While section 4 of the Constitution
3 John Locke, Second Treatise on Civil Government (1690) Chapter XII. It is generally agreed that
the doctrine of separation of powers stemmed from the observation of John Locke of the conditions
prevalent in the 17th Century England. Locke thought that it was convenient to confer legislative
and executive powers on different organs of government as the legislature can act quickly and at
intervals, while the executive must constantly be at work. He argued that it was foolhardy to give to
lawmakers the power of executing the laws, because in the process, they might exempt themselves
from obedience and suit of the law (both in making and executing it) in their individual interest.
4 Spirit of Law (1748) Chapter 11 at 3. According to Montesquieu, constant experience shows us
that every man invested with power is apt to abuse it and to carry his authority as far as it will go.
To prevent such abuses it is necessary that power should be checked by power.
5 Also, the doctrine of separation of powers has been recognized in the Massachusetts Constitution
of 1780; The US Constitution of 1787; The Commonwealth of Australia Constitution Act of 1901.
See the case of Liyanage v. The Queen, where the Privy Council upon the facts of the case held that
there existed under the Ceylonese Constitution a tripartite division of powers – legislative,
executive and judicial – and that it
3

vests the legislative powers of the federation on the National and State Houses of Assembly;
section 5 and 6 vest the executive and judicial powers of the Federation on the President and
Governors; and the courts established by the constitution, respectively.6 Additionally, section 147(4)
of the Constitution provides that: a member of the legislature appointed as a minister of the
Federation must vacate his seat in the legislature.
This is consistent with the decision of the Court of Appeal in Hon. Abdullahi Maccido Ahmad v.
Sokoto State House of Assembly & Anor,7 where the Court Per Salami JCA held inter alia that;
The doctrine of separation of powers has three implications.
a. that the same person should not be part of
more than one of the arms or division of government;
b. that one branch should not dominate or control another arm. This is particularly important in the
relationship between (the) executive and the courts;
c. that one branch should not attempt to exercise the function of the other...,
would be unconstitutional for judicial functions to be allowed to be interfered with by the
legislature
through an Act of Parliament.
6 In Lakanmi and Ors, v. Attorney General of Western State the court recognized the importance of
the
concept of separation of powers by noting as follows; “ we must here revert once again to the
separation of powers, which the learned Attorney General himself did not dispute, still represents
the structure of our system of government. In the absence of anything to the contrary, it has to be
admitted that the structure of our constitution is based on separation of powers – the legislature,
the executive and the judiciary. Our constitution clearly follows the model of the American
Constitution. In the distribution of powers, the courts are vested with the exclusive right to
determine justifiable controversies between citizens and the state.... Also in Samuel L. Ekeocha v.
Civil Service Commission, Imo State and Anor. (1981) 1 NCLR 154, the court held inter alia that in
the Presidential System entrenched in our 1979 Constitution, powers are deliberately separated and
balanced between the legislature, executive and judiciary.
7 (2002) 44 WRN 52
4

The tripartite division of powers is necessary for the purpose of achieving balance of authority and
power for the smooth running of government at any level. However, the doctrine of separation of
powers is not without exceptions. The exceptions to the strict application of the theory of separation
of powers are known as checks and balances. This is also provided for under the constitution for the
purpose of checking the excesses one arm of government might indulge in, claiming constitutional
protection. This is consistent with the view of Prof. Ben Nwabueze which is to the effect that:
Concentration of government powers in the hands of one individual is the very definition of
dictatorship, and absolute power is by its very nature arbitrary, capricious and despotic.8
Consequently, the framers of the constitution just made provisions which were not meant to amount
strictly to checks and balances, but which somehow fused the powers allocated to the three arms of
government intense. The focus of the next segment is on the limitations, exceptions or frustrations
of the doctrine of separation of powers.
Instances of Fusion of Powers under The Doctrine of Separation of Powers in Nigeria
Firstly, under section 4(8) of the 1999 Constitution of the Federal Republic of Nigeria, the exercise
of the legislative powers of both National Assembly and a State Assembly “shall be subject to the
jurisdiction of court
8 B. O. Nwabueze, The Presidential Constitution of Nigeria (London: Sweet and Maxwell, 1981) at
32.
5

of law and of judicial tribunals established by law”.9 The second part of the provision is to the
effect that the National Assembly or a House of Assembly “shall not enact any law that ousts or
purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law”.10
This completes the circle of an effect check on the powers of the legislature and also positions the
judiciary as the custodian of the rule of law.
Consistent with this declaration, is the view of Mustapher JSC in Inakoju v. Adeleke11 which is to
the effect that:
The courts have the jurisdiction and the competence and indeed are duty bound, to exercise their
jurisdiction to ensure that the legislature comply with constitutional requirement.
In addition, the Chief Justice of Nigeria is empowered by virtue of
section 46(3) of the Constitution of Federal Republic of Nigeria, 1999 to
make rules with respect to the practice and procedure of a High Court for the
9 In Senator Abraham Adesanya v. President of Nigeria (1981) 2 NCLR 358, it was decided inter
alia by majority of the Justices of the Supreme Court that the courts have no power to challenge an
Act of the legislature except in certain circumstances, for example, where civil rights are violated.
According to Idigde JSC in that case, the circumstances in which the judicial power of the court
under section 6(6)(b) can be exercised by the court to pronounce on the constitutional validity of
any legislation must be limited to those occasions in which it has become necessary for it, in the
determination of a justifiable controversy or case, based on bona fide assertion of rights by adverse
litigants before it, to make such a pronouncement. The court does not posses general veto power
over Acts or Legislation by the National Assembly. Its powers are supervisory and can only be
properly exercised in the circumstances above.
10 In Honourable Godwin Jideonwu & Ors v. Governor of Bendel State & Ors. (1981)1 NCLR 4,
the High Court held inter alia that the constitution clearly sets out the powers of the three arms of
government, and if the legislature passes any law which is beyond its competence, and which it has
no jurisdiction to pass, whether or not it was passes by all the members of the House, any member
of the house or the public who is affected can challenge it in court, and nothing prevents the court
from setting it aside and declaring it ultra vires the legislature. Indeed, nothing prevents a court of
competent jurisdiction from hearing and determining matters that had been discussed in the House:
Tony Momoh v. Senate of the National Assembly & Ors. (1981) NCLR 105. In Attorney-General of
Bendel State v. Attorney-General of the Federation and 22 Ors. (1982) 3 NCLR 1, the court held
inter alia that by virture of section 4(8) of the 1979 Constitution, the courts of law in Nigeria have
the power and duty to see to it that there is no infraction of the exercise of legislative power,
whether substantive or procedural, as laid down in the Constitution. If there is such infraction, the
courts have the power to declare any legislation passed pursuant to it unconstitutional and invalid:
Bello v. Sanni & Ors. (1982) 3 NCLR 831.
11 (2007) 13 NWLR 427 at 670
6

purpose of enforcement of Fundamental rights. This has made the judiciary a promulgator instead
of an interpreter of the law.
Thirdly, the President of the Federal Republic of Nigeria is empowered to make regulations, under
section 32 of the Constitution, concerning citizenship and immigration matters. Whereas subsection
(2) of section 32 requires the president to lay before the National Assembly such regulations, the
promulgating authority here is the executive (that is the president), and not the legislature.
Again, the President, or the Governor as the case may be, is empowered, under section 175 and 212,
respectively, to pardon convicted persons or to exercise his prerogative of mercy, by remitting,
blotting out or extinguishing a convict’s sentence imposed by the judiciary. Yet still, by reason of
section 292 of the 1999 Constitution, the president, together with the Senate or a Governor together
with a House of Assembly may remove a judicial officer for stated misconduct. Not only that,
section 315 of the Constitution, allows the President or a Governor to modify an existing law.
Furthermore, section 160 and 204, respectively of the 1999 Constitution, allow certain executive
bodies established under the constitution to regulate their own procedure, confer powers and
impose duties on any other or authority for the purpose of discharging its functions; provided the
approval of the president or the governor, as the case may be, is
7

obtained beforehand. Elsewhere, the constitution allows the President12 or the governor13 to attend
any meeting of the National Assembly or State House of Assembly, respectively, either to deliver
an address on national or state affairs or to make such statements on policy of government as he
considers to be of National or State importance.
By the same token, a Minister of the Federal Government is obliged to attend either House of the
National Assembly, if invited to explain to the House the conduct of his ministry and in particular
when the affairs of that ministry were under discussion.14 Similarly, a Commissioner of a state if
invited to explain to the Assembly the conduct of his ministry and in particular when the affairs of
that ministry were under discussion.15
The legislative, on its part is empowered under section 143 and 188, of the 1999 Constitution to
initiate, carryout and conclude the impeachment proceedings of the president or the vice-president;
the Governor or the Deputy Governor. Thus in Attorney General of The Federal & Ors v. Atiku
Abubakar & Ors,16 the Supreme Court opined that:
Impeachment or removal of the President or Vice President from office by the National Assembly
is a strong political weapon and solution to political problems that may arise in the Presidency
either in the discharge of the constitutional function or conduct of the personality involved.
12 Section 67 of the 1999 Constitution
13 Section 108 of the 1999 Constitution
14 Section 67(2) of the 1999 Constitution
15 Section 108(2) of the 1999 Constitution
16 (2007) 10 NWLR (Pt. 1041) 1 at 125 (Para. E-F)
8

Additionally, although a panel is to be appointed by the Chief Justice of Nigeria, or the Chief Judge
of a state, as the case may be, to carryout certain investigations, such a panel will still submit it
report to the legislature. Worst still, subsection (10) of both sections ousts the courts jurisdiction to
inquire into the outcome of the impeachment proceedings.
Again, the legislature must confirm all executive appointment of ministers and commissioners, who
form an integral part of the executive. The National Assembly by virtue of the provision of section
80 of the constitution has authority over public funds and to determine the remuneration of
members of the executive and the judiciary.17 However, such remuneration must be charged on the
Consolidated Revenue Fund. It must also not exceed what the Revenue Mobilization and Fiscal
Commission prescribe.
Again, although the primary duty of the legislative is to make laws yet the constitution empowered
it to conduct investigations, (which are strictly a quasi judicial Act) in order, amongst other things,
to expose corruption, inefficiency or wastes in the execution or administration of funds
appropriated by it.18 In addition, the constitution also gave what may be considered judicial powers
to the Senate or the House of Representatives or a Committee so appointed.19 Such powers include
inter alia, the power to issue a warrant to compel the attendance of any person who, after having
been
17 See also section 84 of the 1999 constitution. 18 Section 88 (Federal) and Section 128 (State) 19
Section 89 of the Constitution
9

summoned to attend, fails, refuses or neglect to do so and does not excuse such failure, refusal or
neglect to the satisfaction of the House or the Committee in question.20
In view of this provision, the Court of Appeal in Senate of the National Assembly & Ors v.
Momoh21 has held, inter alia and to the effect that the provision of the equivalent of section 89 of
the 1999 constitution did not amount to an infraction on the powers of the judiciary and the
executive.
Furthermore, the president can exercise veto powers over laws made by the legislature, but such can
be overruled by two-thirds majority of the National Assembly.22 However, in National Assembly v.
President of the Federal Republic of Nigeria,23 the Supreme Court opined that such a veto can only
be overturned by a two-thirds majority of the whole house and not a quorum and there must be a
full reconsideration of the vetoed bill. That is it must go through all the stages for consideration of a
bill.
Lastly, while legislative confirmation is needed for appointment of Chief Justice of Nigeria,24
Justice of the Supreme Court,25 Chief of a State,26 among others; certain judicial officers are
empowered under sections 236, 248, 259, 264, 269, 274 279 and 284 of the 1999 Constitution, to
promulgate
20 Section 89 (1) and for the state, similar provisions are contained in Section 128 of the 1999
constitution. 21 (1984) 4 NCLR 269 CA
22 See sections 58 and 159 of the 1999 Constitution
23 (2003) 41 WRN 94.
24 Section 231(1) of the 1999 Constitution 25 Section 231(2) of the 1999 Constitution 26 Section
271(1) of the 1999 Constitution
10

rules for regulating the practice and procedure of the respective courts, such judicial officers
superintend.
Conclusion
The foregoing constitutes an erudite attempt to show that an examination of the constitutional
provisions reveals that separation of powers was not intended to be water tight or exclusive. This is
supported by the opinion of Prof. Ojo, which is to the effect that:
A complete separation of powers is neither practicable nor desirable for effective government.
What the doctrine can be taken to mean is the prevention of tyranny by the conferment of too much
power on any one person or body and the check of one power by another.27
According, while the constitution proclaimed the separation of powers, it allowed for
interdependence, and an expressly built in system of checks and balances.
11
27 A, Ojo, “Separation of Powers in a Presidential Government” (1981) Public Law Journal 105.

Rule of law
2/8/21

For any government to function properly then it must adhere to the Rule of law. The Absence of the
Rule of law is the presence of the rule of might which result to the survival of the fittest further
resulting in anarchy.
Oxford English Dictionary defines Rule of law as the authority and influence of law in society
where by all members of a society including those in government are considered equally subject to
public disclosed legal codes and processes.
Rule of law is the mechanisms, process, institution, practice or norm that supports the equality of
all citizens before the law, secures a non arbitrary form of government and more. Generally it
prevents the abuse of power.
Rule of law is the opposite of Absolutism, authoritarianism and totalitarianism. In this sense Rule
of law implies the creation of laws, their enforcement and the placement of citizens non to be above
the law. Rule of law means supremacy of the law. Rule of law means equality, it means
accountability towards the law/ it means fairness on the application of the law, separation of powers,
participation in decisions making, legal certainty,avoidance of arbitrariness and procedural and
legal transparency.

The phrase rule of law can be traced to the 16th century, In Britain. In the 17th Century, A Scottish
theologian Samuel Rurtherford employed it in arguing the divine after him John lock became
proponent.
He said freedom in the society means being subject only to laws made by the legislation that
applies to everybody. Rule of law was made popular in the 19th century by A.V. Dicey
“It is more proper that law should govern its citizens”.
The Rule of law implies that every person is subject to law including people who are law makers,
law enforcement officials and Judges. The Absence of rule of law makes the society to drift
towards tyranny and Oligarchy.

The Rule of law according to him means that no man is punishable from distinct breach of law and
no man is above the law....A.V Dicey.
It is the Absolute supremacy of or performance of regular laws as opposed the influence of
arbitrary power and it excludes the existence of arbitrary power, prerogative or even rules of wild
discrecional authorities on the part of the government.
He meant that a man can be punished for the breach of law but he can be punished for nothing
else.
In English law Author Yates and Company Property Ltd V. Vegetable seeds committee 1945, 7 CLR
pg. 168
Herring CJ as he then was said “it is not the English view of the law that whatever is officially
done is law, on the contrary the principle of English law is that what is done officially must be done
in accordance with the law.

Key principles of the Rule of law as proposed by A. V Dicey

1. Absolute supremacy of the law
2. Equality before the law
3. Protection of the Rights of citizens.

In all, there is no impartiality of law, no distinction between the poor and the rich, between officials
and non officials, between majority and minority and no one can be degraded and non can be
upgraded. Law gives equal justice to all.

In Courier v. Union of Post Officer workers 19977, 1 QB, Pg 761- 762 . Lord Denning said “ to
every subject in this land no matter how powerful, I would use Thomas Faller’s words over 300
years ago, ‘Be you neither so high, the law is above you’ .

In Shugaba V. Minister of Internal affair 1981, 1 NCLR, pg 125. The court held “ the rule of law
ensures the equality of all persons without any distinction that it also guarantees an in
corruptibleness and must be preferred.

Adolph us Karibi - Whyte JSC as he then was. In the case Agba and others V. Okogbue 1991,
LPELR SC
He said it is generally presumed that the written constitution is the source of legal liberty of citizens
how even it is not true as Britain has an unwritten constitution. Legal spirit is the Real Source of
law in England the legal spirit seen in its customs convention and Judicial decision.

A. V. Dicey pines that the individual rights and liberties are more safely protected in Britain than in
France.
The principle in the rule as stated by A. V Dicey
1. Absolute Supremacy of law as opposed to the exercise of arbitrary power.
2. The equality of all persons before the law
3. The constitution as a result of the Ordinary law of the land as interpreted by the courts

Some basic features of the Rule of Law as per A. V. Dicey

1. Law does not recognize any special right for any individual or groups of individuals
2. Law does not recognize any distinction between one individual and the other on the basis of race,
sex or religion. etc.
3. None is punished without proper trial
4. All will be tried by the same court by the same law.
5. The Rule of law does not gibe scope to absolute and arbitrary powers.

Merits of the Rule of law.

1. It reverses tyranny or anarchy
2. It puts legal barriers to governmental arbitrariness
3. It provides safe guard for the protection of individual rights.
4. It echoes the principles of law, that says no man shall be taken or imprisoned or deceased or
outlawed or exiled nor will we go or send for him except by the lawful judgment of peers or by the
law of the land.

Demerits, Criticism or Exceptions to the Rule of law

1. Certain privileges are granted to officials in government and out of government. Therefore, the
rule of law may not apply the way we know it. N/B : You cannot treat two unequals equally and
two equals cannot be treated Unequally
2. For the development of Welfare of state concept, the role of the state has expanded - sometimes
some administrative agencies can decide cases.
3. In some critical condition the fundamental rights are suspended. Like in the case of the Corona
pandemic fundamental human right of freedom of movement was breach. National security
supersedes the rule of law.
4. To meet exigency task, the law must depart one way or the other.
5. The rule of law is the pillar of constitutional development.

Supremacy of the constitution

9/8/21

In every society there must be an entity that must be a sovereign. The word supremacy comes from
a Greek work ‘ Supremos’ which means ‘Supreme or superior to all others’ . Supremacy can
also be defy as the position of having the superior greatest power or authority.

Constitution can be defined as the fundamental or organic law of a nation or state that establishes
the institutions and apparatus of government, defines the scope of government sovereign powers
and establishes the people’s civil rights and civil liberties.
The concept of supremacy of constitution confess the highest authority in any legal system on the
constitution. Supremacy of the constitution is a doctrine where the Constitution is the supreme law
of the land. All states and organs including Parliament and state Legislature are bound by it. They
owe their existence executive powers to the exit constitution because edition is a fundamental law
of the states it is taken The will of the people because it is the supreme law of the land.
In the system the constitution is seen as the law of laws, the source of all legal regulations, the
highest legal value and the super legality.
Supremacy of the constitution include both, material supremacy (content of the constitution) and
the formal supremacy (the form in which constitution is enacted) it means therefore any other law
in the state is inferior to the constitution

Why should a Constitution be supreme

1. It serves as a check on governmental powers so as to prevent abuse of power.
2. It serves as the defender of human rights
3. It promotes the rule of law
4. It ensures law and order in the society
5. It outlines the functions and powers of each organs of government.
6. It ensures the independence of the Judiciary
7. It ensures fair play in government.

Supremacy of the Nigerian Constitution.

Section (1)of the CFRN States that the constitution has binding effect or force on all persons or
citizens.
AG Lagos State V. AG Federation The court held that withholding federal allocation is
unconstitutional, null and void. The action of the president is contrary to Sec 162(5) of CFRN

Inakoju V. Adeleke. The court held in removing the governor of the state you must follow Sec 188
ibid; if not followed the court will declare such actions, null and void.

Sec 1(3) CFRN - when any law is inconsistent with the constitution, the constitution shall prevail
and such law will be void.

Inspector General of Police V. ANPP & Ors

The public order act says you need a permit from the governor of the state for you to meet together.
If the court held according to Sec 39 and section 40 such law was termed inconsistent, with the
constitution, therefore it is null and void.

Buba Maswa & Ors. V. Murtala Nyanku & Ors 2012 LPELR - 7837 SC

Anka V. Lokoja 2001 4NWLR pt 3702 pg Governor lagos State V. Ojukwu 1986 1 NWLR pt 18 pg
621 - any Provision of law is immaterial if it is inconsistent with the constitution that the
constitution is the basic law of the land. Every other law is subsivient to the constitution.

INFC V. Balarabe Musa 2003 LPELR 2492 7 SC

FRN V. Osahon & Ors 2006 LPELR - 3174

Tukar V. Governor of Gongola State 1989

4 NWLR pt 177 pg 517
Ugba & Anor V. Suswam & Ors 2014 LPELR 22882 SC

The implication Of the supremacy of the constitution is that the people are sovereign. Sec14(2)(a)
the people give power to the government through voting.
h

Constitutional development in Constitutional law.

Constitution has been defined in several ways and this is because there is no definite definition or
generally accepted definition of the constitution. Blacks law dictionary defines constitution as the
fundamental and organic law of nation or states that established the institution and apparatus of
government ;system of government), defined the scope of governmental sovereign powers and
guarantees the peoples civil rights and civil liberties. It is also a written instrument embodying the
fundamental law together with a formal amendment.
Prof. Ben Nwanbueze, define constitution as the frame or composition of a government, the way in
which the government is actually structured in terms of its organs, distribution of power within it,
the relation of the organs Inter say and the procedure of existing powers. Alternatively, It is a formal
document having the force of law by which a society organizes a government for self define the
limits it’s powers prescribed in relation to its various organ inter say and with the citizens.
Nigeria since it’s creation 1914 with the amalgamation of the northern and southern protectorates
and the colony of Lagos has experimented many constitutions. In 1914 we had the amalgamation
constitution or the Lord Lugard constitution.
In 1914 the amalgamation was achieved on the three legal instruments. Under the amalgamation of
constitution we had the jurisdiction of the legislative Council. Lord Lugard was the governor
general and he establish in Nigerian Council which was purely an advisory body or a deliberative
body. This council was made up of 30 members, 17 official members and 13 un official members,
these 13 unofficial members are appointed by the governor. During this time all the laws were
made by order in Council.
Article 17 (order-in-council) states no resolution passed by the council shall have any legislative
or executive authority and the governor shall not be required to give effect thereto. This implies that
the Governor General was in charge.
The Nigerian Council was criticized based on the fact that the 17 officials member were not African.
These resulted in agitation which gave it to the 1922 Clifford Constitution.

Clifford Constitution of 1922

Under the 1922 Clifford constitution the legislative Council substituted the Nigerian Council . The
Legislative Council of Nigeria would cover only the whole of the South, while the Northern Parts
would be controlled by the proclamation of the Governor.
One more thing is that the legislative Council brought in elected members into the legislative
Council. It introduce for the first time the elective principle. The Council was made up of 46
members. Out of the 46 members of the Legislative Council, the Governor and 26 others where
official members, 15 unofficial members. Out of the 15 unofficial members 4 members where
elected. The 4 elected members were elected by male adult franchise.
3 elected from lagos and one from Calabar.

Sir Bernard Budillion constitution of 1939 is one which is not often included in the constitutional
development of Nigeria. This is because it was handed over to Sir Arthur Richard. The constitution
was drafted only by Sir Bernard for Nigeria but was not implemented by him. It was handed over to
Sir Arthur Richard.

Sir Authur Richard Constitution of 1946

A new legislative Council was established to make laws for the north and south. This new
legislative Council was made up of the governor and 16 official members and 28 unofficial
members. 24 out of 28 were appointed and four elected.
This constitution gave birth to regionalism.
It introduced three regional councils. Northern, Western and Eastern Region.
Northern Council operated a bicameral legislature, with the house of assembly and house of chiefs.
While the Western and Eastern councils operated a Unicameral legislature with only house of
assembly.
The reason for the establishment of the three councils was to bring the government closer to the
people. This constitution produced the same result, it was identical yo other Constitution, the
people were not involved and the agitation continued

Macpherson Constitution 1951

One core thing that this constitution established was that it transformed the three Regional
administrative council to political Regions. This constitution established pure regional legislature
and introduced a federal system of government. This constitution largely addressed the problem of
no consultation. The 1951 constitution is seen as the people’s constitution because the people were
carried along in this democratic process. This resulted in Ethnic based parties, NCNC, AG, NPC.
Despite the fact of consultation, imperialism was a problem. Because all Nigerians were not
satisfied with the consultation, they said all these constitutions were not “Autochthonous” that
means they were not native, indigenous or home grown.
The people of Nigeria and their representatives were not consulted.
The legal source of authority for all these constitution was the British parliament.

Lyttleton Constitution of 1954

Before the Lytteton Constitution of 1954 their were some riots from the agitations. One of which
was the kano riot. In 1954 Constitution, the conference granted self government to the Eastern and
Western Region. The Western and Eastern Region desired lagos to be the Federal capital territory.

Independenc Constitution of 1960

Sec11(2) paragraph a of Independence Constitution act. The United kingdom government seized to
have responsibility on the government of Nigeria or any part of Nigeria. The queen of England
was the queen of Nigeria, she was the head of government in Nigeria. Her a powers were still
exercised by the Governor General. Appeals in court from the Nigerian federal Supreme Court
went to the judicial committee of the privy Council of the Britain . The legal source of authority
was still the British Parliament because the law was still enacted in Nigeria and so the 1960
constitution did not satisfy as an Autochthonous constitution , homegrown native or indigenous
constitution. The Agitations continued and gave birth to the Republican Constitution.

Republican Constitution of 1963

The queen of England seized to be the queen of Nigeria. Appeals to the privy council where
abolished. The Nigerian Supreme Court became the highest court of Nigeria. The constitution was
not processed by the representatives of Nigeria there was no constitution drafting committee and no
constituent assembly.
Chief Bola Ige of Blessed memory Former AG - said the constitution is one of those we had since
independence none of them were Initiated or drafted under a genuinely democratic government.
This particular one was conceived in bad faith there was no constituents symbol in which
deliberated and produce the constitution there was no referendum through which we the people
could express our approval or disapproval.

1979 constitution
The process and enactment of the 1979 constitution began in October 1975 with your appointment
and Inauguration of the member of the constitution drafting committee. The committee was made
up of 50 members. it was led by chief F. R. A Williams of blessed memory. chief Obafemi
Awolowo refused to participate and they became 49 members. they were tagged the 49 wise
men. The CDC collated the views expressed by Nigerians organization, civil societies,
interested bodies. The CDC recommended and presented the views to the constituent assembly.
The Constituent Assembly reviewed and made minor amendment and submitted it to the supreme
military counsel. You need to know that the constitution drafting committee members were not
elected by our people. But the Constituent Assembly was made up of some elected and selected
members.

Chief Bola Ige said “ The 1979 constitution was the nearest to how a constitution can be
properly and democratically produced ” There was a 1989 constitution but it was a botched
constitution because it did not materialize.
The 1989 Constitution was abortive under the M.k.O ABIOLA June 12 1993 election.
Abacha set up a National Conference made up of 369 members...270 elected, 96 selected. The 1995
Constitution was aborted because Abacha died before his coming into power. That is to say that the
constitution was never passed into law because of the death of Abacha in 1998.

1999 Constitution.
After Abacha died Adusalmi Abubakar came into power and established a 25 Constitutional
debate and coordinating Committee. This was done in Nov 1998. This committee was organized
and mandated to handle or carry out a debate on the 1995 constitution.
This committee was headed by JUSTICE Nikki Tobi and it submitted the draft copy of the
constitution to the provisional Ruling Council.
Decree (24) May 5, 1999 promulgated the 1999 Constitution. This constitution was also criticized on
the basis that it was imposed by the Military.

Prof Nwanbueze said A constitution is an act of the people if it’s made by them either directly in a
referendum or through convention or a constituent assembly duly elected by the people for this
purpose.

Niki Tobi stated “ in general terms a constitution is said to be Autochthonous if it derives its force
and validity form native authority. Once the entire constitution is indigenous and home grown it is
said to have the element of Autochthonmy