THE LIMITS OF THE DOCTRINE OF SEPARATION OF POWERS IN THE

CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999

BY
Y.O. ALI (SAN)

INTRODUCTION that power is not concentrated in

There is no gainsaying the fact the hands of the Alafin, which is
that the famous doctrine or capable of being misused or
principle of separation of powers abused.
is as old as man, what we are The doctrine of separation of
saying in essence is that, powers as practiced by the then
separation of powers has been in Oyo – empire was premised on the
existence since man came to the YORUBA adage which says that:
society. It is apposite to state (i) Agbajowo Lafi nsoya, ajeje
that the doctrine of separation owo kan ko gberu dori.
of powers was in existence and (ii) Akii je meji Laba Alade –
strictly observed in this country eni to jesu koni mumi.
before the advent of the British. (iii) Enikan kii je awade, Igi
This foregoing position can be kan kole da igbo se.
demonstrated when a recourse is Meaning that, no man is an island
made to the old Oyo empire, where to himself and cannot be all in
there were in existence the all.
Alafin, Oyo Mesi, the Ogboni The point we are trying to derive
among other traditional title home is that, the principle of
holders who took charge of the separation of powers is not
administration of the said strange to the African society
empire. There was a manifest and and therefore, the principle can
undoubted separation of powers not be said to be imbibed or
between the Alafin who was the imported from the white man but
head and the Oyo Mesi, and the in its formalized theoretical
Ogboni, this brought about the notion it is an imported value
necessary checks and balances, so into our body politic.
 power of making laws; to have
HISTORICAL DEVELOPMENT OF MODERN also in their hand the power
THEORY OF SEPARATION OF POWERS to execute them, whereby they
You will agree with me that any may exempt themselves from
system of government that is obedience to the laws they
hinged on the Rule of law and made and suit the law, both in
Democracy and especially the its making and execution, to
presidential system of government their own private advantage.2
as practiced in Nigeria must In the same vein Montesquieu said
consist of the three great arms that:
of government, namely, the ”Political Liberty is to be
Executive, the Legislature and found only when there is no
the Judiciary. As rightly abuse of power. But constant
pointed out by Aihe in his book1 experience shows every man
that such a division of labour is invested with power is liable
a condition precedent to the to abuse it, and carry his
supremacy of the Rule of Law in authority as far as it will
any society. go. To prevent this abuse; it
is necessary from the nature
The principle of separation of of things that one power
power as it is known today was should be a check on another…
propounded by Montesquieu who When the Legislative and
derived his inspiration from Executive powers are united in
Locke’s writings and the study of the same person or body there
the eighteenth century English can be no liberty….. Again
constitution. The basis of the there is no liberty if the
principle of separation of powers judicial power is not
was given by Locke in his second separated from the legislative
Treatise of Civil Government as and executive. There would be
follows: an end of everything if the
“It may be too great a same person or body, whether
temptation to human frailty, of the nobles or the people,
apt to grasp at power, for the were to exercise all the three
3
same persons who have the powers.”
 …Limited government demands
It is worthy of note that the therefore that the
principle of separation of powers organization of government
was not in operation in his should be based on some
country France at that time, even concept of structure, whereby
up till today the executive and the functions of law-makings,
legislative functions are execution and adjudication are
concentrated in the hands of the vested in separate agencies,
same group of people in France. operating with separate
personnel and procedure. We
However, the American are not prepared, write Vile,
constitution practicalised the ‘to accept that government can
theory of separation of powers. become, on the ground of
In other words, it was fully “efficiency”, or for any other
adopted in the United States of reason, a single
America. This is in undifferentiated monolithic
contradistinction with the structure, nor can we assume
British constitution where there that government can be allowed
is no such clear cut separation to become simply an accidental
of powers. agglomeration of purely
pragmatic relationships…. By
A Nigerian renowned separating the function of
constitutional lawyer Professor execution from that of the
Nwabueze while emphasizing the law-making, by insisting that
importance of the principle of every executive action must,
separation of powers says: in so far at any rate as it
“Concentration of governmental affects an individual, have
powers in the hands of one the authority of some law, and
individual is the very by prescribing a different
definition of dictatorship and procedure for law making the
absolute power is by its very arbitrariness of executive
nature arbitrary, capricious action can be effectively
4
and despotic. checked.
Therefore, in the light of the discourse, an attempt will be
above, separation of powers can made to examine the principle of
be succinctly put to mean, the separation of powers as
exercise of three distinct entrenched in those constitutions
functions of government by three aforementioned viz-a-viz its
arms of same without undue effectiveness at that point in
meddlesomeness and/or unnecessary time. To achieve this, we shall
interference in the affairs of examine the topic under the two
another ensuring the desired headings viz: the period of
checks and balances in military Regimes and Civilian
government. Regimes.

SEPARATION OF POWERS UNDER THE MILITARY REGIMES (1966- 1998)

PREVIOUS NIGERIAN CONSTITUTIONS It is common place that, the
It is our opinion that a review first assignment usually
of the separation of powers under undertaken by military dictators
the 1999 constitution cannot be immediately they usurp power by
effectively carried out without that unconventional means, was to
recourse to the previous put some parts of the
constitutions, like the 1960 constitution in abeyance,
Independent constitution, the regardless of the ways or
Republican constitution of 1963 procedures laid down in the
and the 1979 constitution. constitution for its amendment.
This attitude is only to
The foregoing becomes necessary demonstrate that the successive
in view of the fact that, we need military regimes in Nigeria
to go down the memory lane, at considered the principle of
least to take a cursory look into separation of powers as an
the past in a bid to understand aberration during their tenure of
the present and the future. And office, prima facie, the military
as the great Cicero rightly says regimes combine both legislative
“to be ignorant of the past is to and executive powers in
forever remain a child”. themselves.
Therefore, to do justice to this
It is noteworthy also that, the rights inapplicable in
military not only combined both relation to any matter arising
the Executive and legislative under those Decrees, and no
powers but also frustrated the Court is to enquire into the
judiciary and apparently rendered question whether a guaranteed
same ineffective whenever in right has been or is being or
power, despite the judicial will be contravened by any
powers vested on them under the thing done or purported to be
various constitutions. The done thereunder. Thus, under
military constantly and individual Decrees of the
arrogantly took a swipe at the Military government thousands
judiciary by the promulgating of of people have been detained
Decrees purporting to oust the without trial, political
jurisdiction of the Courts and in parties, tribal unions and
effect prevent the Courts from some other similar
exercising the powers and/or associations were dissolved or
duties conferred on them by the banned, many trade unions
grundnorm that is the proscribed, the publication or
constitution. circulation of some newspapers
or magazines, prohibited
The position enunciated above, criticism of government and
was graphically demonstrated by political discussion generally
Professor Nwabueze he stated severally restricted, public
thus: assemblies and processions
“The absolute power is, proscribed, and property or
expectedly being exercised assets of some people
autocratically. In the first expropriated or encroached
era of Military rule, 15 upon.
January, 1966 to 30 September, From January 1966 to
there were 50 Decrees and 14 September, 1979, there have
between 1 January, 1984 and 15 also been 39 adhominem Decrees
May, 1985 which explicitly (Edicts of State Governments
made the constitutional excluded) of the 627 Decrees
guarantee of fundamental enacted between 16 January,
 1966 and 28th September, 1979, this to say:
295 or nearly 50 per cent had “In the executive field, which
retrospective effect with 52 the military have tried to
creating criminal offences. maintain the semblance of the
27 of the 49 or 55 per cent of rule of law by first going
the Decrees enacted between through the motion of enacting
January 1, 984 and May, 15 laws as a basis for its
1985 had retrospective executive actions, the
effects, with 11 or 22.5 per principle that an executive
cent creating criminal act of government must keep
offences.”5 strictly within the four
corners of its enabling law or
From the above quotation, it can else be open to challenge in a
be deciphered vividly that, the Court of law has all but been
issue of observance of the jettisoned. This principle is
principle of separation of powers indeed cardinal and central to
was almost a mirage during the the Rule of Law, and, as we
military regimes, in spite of the have seen, it was maintained
constitutional provisions for in the face of all the
same. In other words, what was oppression under colonial
apparent was the usurpation of absolutism. Between January
the legislative powers by the 1966 and September, 1979 and
military that also purportedly January, 1984 and May, 1985,
exercised executive powers and at there had been some 64 Decrees
the same time flagrantly which conferred
promulgated decrees which unquestionability on executive
rendered the judiciary a acts done or purported to be
toothless bull dog that cannot done under their provision. A
bite. variety of forms and
combination of forms were used
On the manner in which the to achieve this, the aim being
military striped off the judicial to ensure that all loopholes
powers of the judiciary, our for the Court’s intervention
6
renowned Professor Nwabueze had are effectively plugged.
 declared that:
Disobedience of Court orders and “There is no substitute for
wanton disregard of the rule of the rule of law where each
law became very pronounced during department of government is
the dark days of later dictator, allowed to function without a
Gen. Sanni Abacha. Like his fundamental interference by
predecessors, he ran foul of the any of the 3 in the
provisions of the constitution by performance of the others’
constantly and illegally fundamental duties and
hindering the judiciary from functions. In most instances,
performing its role guaranteed by the whole concept of ouster in
the 1979 constitution and also Nigeria is to protect the
found of trampling upon the illegalities, the mis-
fundamental Human Rights of the governance, the corruption;
citizenry. Since the support of the general misdeeds including
this paper is not to examine the immoralities of those who hold
infringement of fundamental Human political powers particularly
7
Rights, we need not go beyond in a military dictatorship.”
this point. However it should be
noted that the disregard of the Be that as it may, the judiciary
principle of separation of powers in a bold defence of its
by the military was predicated on constitutional role to
the desire of the military adjudicate, challenged the
dictators to shield themselves ousting of its jurisdiction by
from incurring the wrath of the various, Decrees in the famous
law, sequel upon their misdeeds and historic case of The Attorney
which in general forms were General (Western State) & Ors vs.
outrageous and inhuman. Chief E.O. Lakanmi and Ors8. The
Gani Fawehinmi while commenting separation of powers provided for
on the observance of the under the 1963 constitution,
principle of separation of powers though not as sharp as that of
viz-a-viz the military regimes in the 1979 constitution was relied
a lecture delivered in Ibadan at upon by the court in this popular
the instance of the N.B.A., case, which was considered as the
primus inter pares of the cases citizens and the state. See
against ouster of court’s Attorney-General for Australia
jurisdiction and executive vs. the Queen (1975), A.C.
usurpation of judicial power. 288, on pg. 311, etc”.

In that case, the Supreme Court In Lovell vs. United States

had the opportunity of having a (1946), 66 Supreme Court reports
clear interpretation of the 1073, on pg. 1079, Mr. Justice
provisions of the 1963 Black said as follows:
constitution and made adequate “Those who wrote our
pronouncement on the principle of constitution well knew the
separation of powers contained danger inherent in special
therein, when it held thus: legislative acts which take
“We must here revert once away the life, liberty, or
again to the separation of property of particular named
powers, which, the learned persons, because the
Attorney General himself did legislative thinks them guilty
not dispute, still represents of conduct which deserves
the structure of our system of punishment. They intended to
government. In the absence of safeguard the people of this
anything to the contrary it country from punishment
has to be admitted that the without trial by duly
structure of our constitution constituted courts”.
is based on the separation of And even the Courts, to which
powers, the Legislature, the this important function was
Executive and the Judiciary, entrusted, were commanded to
our constitution clearly stay their hands until and
follows the model of the unless tested safeguards were
American constitution. In the observed. When our
distribution of powers the constitution and Bill of
Courts are vested with the Rights were written, our
exclusive right to determine ancestors had ample reason to
justifiable controversies know that legislative trails
between citizens and between and punishments were too
 dangerous to liberty to exist 34 of 1968 followed. But
in the nation of free men they Decree No. 45 of 1968 is the
envisioned. And so, they core of the matter. It
proscribed Bills of validated everything that was
Attainder”. wrong or wrongly done,
These principles are referred specifically to the
absolutely fundamental and names of the appellants in the
must be recognized. It is to schedule and without defining
define the powers of the a new “public officer”,
legislature that constitutions validated orders made against
are written and the purpose is the second appellant who,
that powers are left with the according to section 13 (1) of
legislature be limited, and the Decree No. 37 of 1968,
that the remainder be vested could not by any stretch of
in the courts” 9. imagination be considered a
public officer. In an attempt
The Court went further and states to crown the efficiency of the
thus: Decree, it purported to abate
“At the passing of Decree No. all actions and appeals
37 of 1968, the present case pending before any Court. In
was pending in the Western short, it stopped the pending
State Court of Appeal. appeal of appellants in the
Although the Decree repealed Western State Court of Appeal.
Edict No. 5 of 1967 and We have come to the conclusion
purported to withdraw the that this Decree is nothing
constitutional rights to short of legislative
challenge by way of action and judgement, an exercise of
prerogative writ in any Court judicial power. It is in our
of law provided for in chapter view ultra vires and in valid.
III of the constitution, We are in no doubt that the
dealing with fundamental Human object of the federal military
Rights, it would appear that government, when it engaged in
more thought was given to this this exercise, was to clean up
enactment, and the Decree NO. corrupt practices, those
 vampires in the society whose aspiring to edge out the
occupation was to amass wealth judiciary through the
at the expense of the country. promulgation of Decrees ousting
But if, in this pursuit, the the court’s jurisdiction.
government, however well-
meaning, falls into the error In the same vein, the Supreme
of passing a legislation which Court had another opportunity to
specifically in effect, passes condemn in its entirely the
judgement and inflicts flagrant flouting of court orders
punishment or in other words by the Government of Lagos State
erodes the jurisdiction of the and reaffirmed the doctrine of
courts, in a manner that the separation of powers contained in
dignity and freedom of the the 1979 constitution as amended,
individual, once assured, are in the celebrated case of Gov. of
taken away, the Court must Lagos State vs.. Ojukwu where the
intervene10“. Supreme Court held inter-alia
that:
The Supreme Court in this case “It is more serious when the
unequivocally rested the act of flouting the order of
principle of separation of powers the court, the contempt of the
as contained in the 1963 court, is by the executive.
Constitution. However, to the Under the constitution of the
chagrin of the citizens, the Federal Republic of Nigeria,
decision of the Supreme Court was 1979, the executive, the
rendered nugatory by overruling legislative while (it lasts)
it vide a legislation, Decree No. and the judiciary are equal
28 (Supremacy and Enforcement of partners in the running of a
Powers) Decree of 1970. The successful government. The
attitude of the then military powers granted by the
dictator lend credence to the constitution to these organs
point that military regimes by S.4(legislative powers) S.
successfully combine both 4 (executive powers) and S. 6
legislative and executive powers (judicial powers) are
and cap it all by persistently classified under an Omnibus
 Umbrella known under part II of Appeal had earlier on granted
to the constitution as “powers an interim injunction to stop
of the Federal Republic of ejection of Chief Ojukwu, pending
Nigeria”. The organs wield the determination of substantive
those powers and one must motion on notice had this to say:
never exist in sabotage of the “In the area where rule of law
other or else there is chaos. operates, the rule of self-
Indeed there will be no help by force is abandoned.
federal government. I think, Nigeria being one of the
for one organ, and more countries in the World which
especially the executive, proclaim loudly to follow the
which holds all the physical rule of law, there is no room
powers, to out itself in for the rule of self-help by
sabotage or deliberate force to operate. Once a
contempt of others is to stage dispute has risen between a
an executive subversion of the person and the government or
constitution it is to uphold. authority and the dispute has
When the executive is the been brought before the Court,
military government which thereby invoking the judicial
blends both the executive and powers of the state, it is the
the legislative together and duty of government to allow
which permit the judiciary to the law to take its course or
co-exist with it in the allow the legal and judicial
administration of the country, process to run its full
then it is more serious than course. The action the Lagos
imagined11“. State Government took can have
no other interpretation than
The court while showing its the show of the intention to
displeasure at the manner in pre-empt the decision of the
which Chief Ojukwu was forcibly court. The courts expect the
ejected by the then Military utmost respect of the law from
Governor of Lagos State, when the the government itself which
case was pending in the High rule by the utmost respect of
Court, and more so when the Court the law from the government
itself which rule by the law. nation to maintain the rule of
The Nigerian constitution is law. It is both in the
founded on the rule of law the interest of the government and
primary meaning of which is all persons in Nigeria. The
that everything must be done law should be even handed
according to law. between the government and
It means also that government citizens12“.
should be conducted within the
framework of recognized rules Honourable Justice Oputa JSC (as
and principles which restrict he then was) while acting to the
discretionary power which Coke attitude of the Lagos State
colourful spoke as ‘golden and Government stated that:
straight metwand of law as I can safely say that here in
opposed to the uncertain and Nigeria even under a military
crooked cord of discretion’ government, the law is no
(see 4 Inst. 41). More respecter of persons,
relevant to the case in hand, principalities, governments or
the rule of law means that powers and that the court
disputes as to the legality of stand between the citizens and
acts of government are to be the Government alert to see
decided by judges who are that the state or Government
wholly independent of the is bound by the law and
13
executive see Wade on respect the law ”.
th
Administrative Law 5 Edition
P. 22 – 27. That is the One can notwithstanding the good
position in this country where fight put up by the judiciary to
the judiciary has been made defend its judicial powers in
independent of the executive line with the principle of
by the constitution of the separation of powers, say that,
Federal Republic of Nigeria under the military regimes there
1979 as amended by Decree No. had been no clear separation of
1 of 1984 and No. 17 of 1985. powers. Apart from fusion of
The judiciary cannot shirk its both the executive and
sacred responsibility to the legislative powers by the
military, the judiciary had no be mentioned that manner of
free hands to perform its duties exercising of the executive
according to the constitution, as authority of the president ad the
the courts were encumbered by executive authority of the
various obnoxious ouster clauses. Governors were contained in
Chapter VI.
The period of November, 1993 to
July, 1998 was indeed a watershed There was no sharp and/or
in the annals of tyranny, elaborate separation of powers
dictatorship, arbitrariness and under those two constitutions as
corruption of the military in mentioned above. The reason for
Nigeria. this is not far fetched, it is
axiomatic that, the independence
UNDER CIVILIAN REGIMES 1960 AND constitution was promulgated vide
1963 CONSTITUTIONS and Order in Council made by the
Under constitutions that were in colonial masters for the colony
place during the 1st Republic were of Nigeria. While the 1963
the independent constitution of constitution merely effected a
1960 and the 1963 Republic change from monarchy to
Constitution. These republicanism. This made a wide
constitutions provided for an difference between the 1979
obvious separation of powers constitution which was fashioned
though not as sharp as that of in line with the American
the 1979 constitution. For constitution and both the
instance, the office of the independence and republican
Governor-General and the constitution of the first
President under the 1960 and 1963 republic. The two constitutions
constitutions respectively was were based on the British model
established pursuant to Chapter of parliamentary system of
IV of both constitutions. government.
Chapter V of the aforementioned
constitutions provided for the It should be noted also that in
parliament, while Chapter VIII the operation of the 1963
hosts the judicature. It should constitution the civilian
government also displayed its in operation during the second
disdain for the principle of republic provided for a clear
separation of powers when the separation of powers. This is
federal parliament, passed, The contained in SS. 4, 5 and 6 of
Constitution of Western Nigeria Chapter V of the said
(Amendment Law) reversing by constitution which established
legislation a Privy Council the national assembly, the
judgement which found that Chief composition of the senate, the
Akintola had been validly removed House of Representatives;
as the Premier of Western president of the senate and so
Nigeria. This singular act on. While chapter VI provides
suffices to justify our position for the executive arm of
that the disregard of the government and chapter VII
principle is not peculiar to contained the aspect relation to
military regimes alone. the judicature.

Under the 1960 and 1963 This constitution as earlier

Constitutions members of the mentioned provided for distinct
executive arm of government must and specific functions for each
be elected into the respective organ of government, unlike the
houses either at the Federal or previous constitutions. It can
regional level before qualifying be seen that the executive under
to hold executive positions. the 1979 constitutions is to
execute the law made by the
This was a clear departure from legislature and should not
the position in the 1979 venture into law making. The
Constitution where provisions legislature is to make laws while
were made that made an elected the judiciary is to adjudicate
legislator that accepted an and interpret the laws made by
executive post to relinquish his the legislature. None of the
elective position. arms of government should dabble
into the arena outside its
1979 CONSTITUTION purview of function.
The 1979 constitution which was
The separation of posers as president assents to, in
enshrined in the 1979 exercise of executive powers
constitution was also given a within the legislative process
judicial interpretation in the is a nullity. The Supreme
case of Attorney General of Court in exercise of its
Bendel vs. Attorney General of jurisdiction under section
the Federation and 22 Ors where 212, when there is a dispute
the Supreme Court held: under the section, could
“In my view legislative powers adjudicate on the issue. And
commence when a Bill is this constitutes the
introduced in either House of limitation on the sovereignty
National Assembly and end when of the legislative14”.
the Bill is submitted to the
president for his assent. I The whole essence of the doctrine
hold the view that what the is to give room for checks and
president does, in assenting balances and by so doing,
to a bill, is performing encourage healthy influence or
executive powers within control by one over the
legislative process. activities of another is
expected. As rightly put by Aihe
If, in the process of the and Oluyede in their book15 that:
exercise of the legislative “What the whole idea means is
power by the National that neither the legislature,
Assembly, there is such a the executive not the
constitutional defect, as to judiciary should exercise the
lead to an interpretation to whole or part of another’s
the effect that a Bill was not powers, but it does not
passed according to law, that exclude influence or control
is, it does not follow the by one over acts of another”.
procedure laid down under the
constitution for the passing The doctrine of separation of
of a Bill, then the Bill which powers under the 1979
has passed through such constitution was not strictly
exercise is null and what the followed by the politicians in
power as well, like their was its model. However, those
military counterparts though not that operate the constitution as
so pronounced. The civilian indicated above contributed to
regime also strived hard to its ineffectiveness at that point
render nugatory the provision, of in time.
the constitution as rightly
pointed out by professor Nwabueze SEPARATION OF POWERS UNDER THE
in his book16 where he declared 1999 CONSTITUTION
that, the legislative arm of Consequent upon the controversies
government was not independent of surrounding the making of the
the executive arm during the 1999 constitution, unlike the
second republic, that is, October 1979 constitution which gained
1979 to December 1983. This overwhelming acceptance of the
according to him was sequel to vast majority of Nigerians, an
the dominance of the party in attempt will be made to trace the
power, particularly the President root of the 1999 constitution in
and Governors, who by their order to garner the purport of
position and influence, were in a the peoples’ outcry and
position to use the power of condemnation of the said
patronage to subdue members of constitution. Thereafter, we
the legislature. This took the shall take a look at the 1979
form of award of contracts, constitution vis-à-vis the 1999
distributorship of scarce constitution in a bid to see if
commodities, provision of social there are any remarkable
amenities, like roads, schools, differences or innovations,
hospitals, pipe borne water in especially as regards the
the member constituencies and so provisions of those constitutions
on. that deal with separation of
powers. In the same vein, we
Therefore, the 1979 constitution will examine briefly those
no doubt made an explicit and provisions under the 1999
elaborate provision for constitution and make necessary
separation of powers like its comment on them.
United States counterpart which
Under this heading too, we shall edition out of the various
succinctly appraise the versions available was referred
workability and the effectiveness to the Constitutional Debate Co-
of the principle of separation of ordinating Committee constituted
powers as entrenched in 1999 by General Abdul Salami Abubakar
constitution under this political for review.
dispensation. We shall then However, the Constitutional
conclude the discourse by making Debate Co-ordinating Committee
some recommendations we consider having regard to the condemnation
germane to fostering enduring and the genesis of the draft
democracy in our great country, constitution recommended that a
Nigeria. recourse should be made to the
1979 constitution subject to some
THE MAKING OF THE 1999 amendments.
CONSTITUTION AND THE ATTENDANT
CONDEMNATION The legal giant Chief F.R.A.
It is not in dispute that the Williams SAN while vehemently
1999 Constitution of the Federal condemning the making of the 1999
Republic of Nigeria came into constitution when delivering a
force on 29th May, 1999 vide: The keynote address at a workshop
Constitution of the Federal organized by N.B.A. Ikeja branch17
Republic of Nigeria lamented that:
(Promulgation) Decree 1999, “…. The last speaker asked me to
following General Sani Abacha’s name the author of the 1999
transition to civil rule constitution. Every day, from my
programme which produced a draft early days as a student, I have
1995 constitution after the been taught to classify a
deliberation by a few selected document which tells a lie about
persons imposed on the citizens itself as forged document. When
by the then military junta that I searched for the author, I
purportedly collected and found that the introduction to
collated some Nigerians views the 1999 constitution, the
about the constitution and came preamble says “We the people of
out with a report. The published the Federal Republic of Nigeria”
do hereby make, enact and give to itself when it proclaims as
ourselves the following follows:-
constitution. That is what the “WE THE PEOPLE of the Federal
document says about itself. I Republic of Nigeria …. DO
will classify it as I have always HEREBY MAKE ENACT AND GIVE TO
been taught to classify a OURSELVES the following
document that tells a lie about constitution.
itself you all know it’s a lie.” As probably every enlightened
Nigerian knows, we the people
What Chief F.R.A. Williams who of the Federal Republic of
was the Chairman of the Nigeria did not make, enact or
Constitution Drafting Committee give ourselves the 1999
of the 1979 constitution was constitution. A few persons
saying is that, the 1999 selected by the military junta
constitution is not a document collected some views, collated
that emanated from the people as them and wrote a report. The
purportedly claimed in the military government
preamble and by implication such thereafter, made, enacted and
document is not fit to be gave to their Nigerian
regarded as the constitution of “subjects”, the constitution.
the Federal Republic of Nigeria. The document was infact hidden
away from Nigerians, until a
Professor I.E. Sagay, SAN in a few days before the hand-over
paper titled: The 1999 date of 29th May 1999.
Constitution and the Nigeria’s Thus the present group of
Federalism18 also voiced out his political rulers did not know
displeasure on the manner in what their functions and
which the 1999 constitution came powers were to be, long after
into being, he stated that: they were elected to perform
The 1999 constitution has been those duties and to exercise
dogged by problems and those powers.
controversies right from the This applied not only to the
moment of its release in May executive and legislative arms
1999. It tells a lie about of government, but also to the
 judiciary, third arm of lacking.
government. Just as the
elected legislators were Having said that, it is worthy of
unaware of the legislative note that the 1999 constitution
lists and the comparatives is a replica of the 1979
powers of the state and the constitution with the
centre, so too were the courts introduction of few new
ignorant of their comparative provisions noticeable therein,
jurisdictions, bases of such as environmental objectives,
appeals, or even the types of duties of the citizen, dual
courts that were to be citizenship, right to acquire and
established by the own immovable property anywhere
19
constitution. The whole in Nigeria . Also there are
transition programme was for provisions for additional
the politicians, judges and qualification for membership of
the civil populace, a sheet parliament both at the federal
leap in the dark.” and state levels, recall and
remuneration and an elaborate
We quite agree with the learned provision on political parties20.
Chief F.R.A. Williams and Prof In the aspect of the judiciary,
Sagay and we pitch out tent with there is the creation of the
21
their submissions, hence to say National Judicial Council which
the least, the 1999 constitution see to the appointment and
is nothing short of a Decree removal of judicial officers
imposed on Nigerians as their among other responsibilities.
constitution as it was midwived
by the military, more so, when Apart from the few new provisions
one of the features of the and innovations contained in the
constitution is general 1999 constitution, one can state
acceptance by the people, which without mincing words that the
usually form the basis of the 1999 constitution is a verbatim
preamble. But in the case of the reproduction of the 1979
1999 constitution, this basic constitution. In view of the
element of acceptability is foregoing, the provisions of the
 22
1999 constitution that relate to constitution.”
the principle of separation of “The legislative powers of a
powers remain unchanged as we state of the federation shall
have them under the 1979 be vested in the House of
constitution. For the avoidance Assembly of the state.
of doubt we shall endeavour to The House of Assembly of a
reproduce some of the relevant state shall have power to make
sections of the 1999 constitution laws for the peace, order and
that deal with powers of the good government of the state
Federal Republic of Nigeria and or any part thereof with
the aspects that treated the respect to the following
three arms of government that is matters, that is to say.
the legislature, executive and (a) Any
the judicature. matter not included in the
exclusive legislative list
LEGISLATIVE POWERS set out in part 1 of the
The Constitution provides as second schedule to this
follows: constitution;
“The legislative powers of the (b) Any
Federal Republic of Nigeria matter included in the
shall be vested in a National concurrent legislative list
Assembly for the federation set out in the first column
which shall consist of a of part II of the second
Senate and a House of schedule to this
Representatives. constitution to the extent
The National Assembly shall prescribed in the second
have power to make laws for column opposite thereto; and
the peace, order and good (c) Any
government of the federation other matter with respect to
or any part thereof with which it is empowered to
respect to any matter included make laws in accordance with
in the exclusive legislative the provisions of this
23
list set out in part 1 of the constitution.
second schedule to this From the above provisions of the
1999 constitution, it is federation is dominating at the
unequivocally stated that, the expense of the states, this is
functions or powers of law making against the principle of
are vested in the National federalism.
Assembly and Houses of Assembly
of the states for the federation Those items listed in the
and states respectively. However exclusive legislative list of the
the constitution also provides 1999 constitution are now 68
for a clear demarcation between compare to the 1979 constitution
the areas which can be legislated with 66 items and in contra
upon by the National Assembly and distinction with the 1960/1963
the states Houses of Assembly. constitutions with just 45 items.
These are contained in the The argument at this juncture is
exclusive and concurrent that, some of the matters in the
legislative lists24. The National exclusive legislative list ought
Assembly has exclusive power of to be within the competence of
law making with respect to any the states alone.
matter included in the exclusive
legislative list, to the It is also observed that some
exclusion of the Houses of items contained in the exclusive
Assembly of the states, while legislative list should
both the National Assembly and ordinarily be placed in the
the Houses of Assembly shall concurrent legislative list. It
exercise their legislative powers is argued in some quarters that
on those matters contained in the the issues involving borrowing of
concurrent legislative list. money by a state, local
government, company or any other
A closer look at the legislative entity should be placed in the
especially the exclusive concurrent legislative list, so
legislative list reveals that the that both the federal and state
federal government enjoy governments can legislate on
overwhelming power to legislate those matters.
virtually on every subject. This
is a clear indication that the It is also our contention that
issues like Evidence used in service of the federation; and
court contained in item 23, Shall extend to the execution
Labour, Trade unions, industrial and maintenance of this
relation in item 34 and the local constitution, all laws made by
government election ought to be the National Assembly and to
in the concurrent legislative all matters with respect to
list, instead of the exclusive which the National Assembly
list. The idea is that why has, for the time being, power
should the federal government to make laws.”
become an Alpha and Omega which Subject to the provisions of
must have a way on every aspect this constitution, the
of life of this country? It is executive powers of a state:
our view there should be a forum Shall be vested in the
where our co-existence as a governor of that state and
Nation should be reviewed so as may, subject as aforesaid and
to pave the way for proper and to the provisions of any law
true federalism. made by a House of Assembly,
be exercised by him either
EXECUTIVE POWERS directly or through the Deputy
The 1999 Constitution provides Governor and Commissioners of
inter alia as follows: the Government of that state
“Subject to the provisions of or officers in the public
this constitution, the service of the state; and
executive powers of the Shall extend to the execution
federation shall be vested in and maintenance of this
the president and ay, subject constitution, all laws made by
as aforesaid and to the the House of Assembly of the
provisions of any law made by state and to all matters with
the National Assembly, be respect to which the House of
exercised by him either Assembly has for the time
25
directly or through the vice – being power to make laws.”
president and ministers of the
government of the federation In the light of the above
or officers in the public constitutional provisions, one
can rightly posit that, the permitted by the constitution
powers of the executive neither itself.
encompasses law making, nor
adjudication but strictly limited JUDICIAL POWERS
or restricted to execution and The Constitution makes extensive
maintenance of the constitution provisions for the judiciary as
and the laws made by the follows:
legislature. The executive “The judicial powers of the
powers of the federation is federation shall be vested in
conferred on the president and the courts to which this
according to the constitution, section relates being courts
can be delegated to the vice established for the
president, ministers or officers federation.
in the public service of the The judicial powers of a state
federation. While the State shall be vested in the courts
Governors shall exercise the to which this section, being
executive powers of a state courts established, subject as
either by himself or through the provide by this constitution,
Deputy Governor, Commissioners or for a state.
officers in the public service of The judicial powers vested in
the state. accordance with the foregoing
provisions of this section.
Therefore, under the 1999 Shall extend, notwithstanding
constitution like the 1979 anything to the contrary in
constitution there are this constitution, to all
unambiguous provisions for inherent powers and sanctions
separation of powers among the of a court of law;
three arms of government viz: the Shall extend to all matters
legislature, the executive and between persons, or between
the judiciary their distinct government or authority and to
functions are explicitly spelt any person in Nigeria, and to
out in the constitution and on no all actions and proceedings
account should one carry out the relating thereto, for the
function of another save as determination of any question
 as to the civil rights and some committees by the president
26
obligations of that person.” and the National Assembly to look
into it, the said 1999
The judiciary as the third arm of constitution will remain in
government exercise is powers of operation as our grundnorm in
adjudication and interpretation this country despite whatever
of the constitution and law made anomalies that is surrounding its
by the legislature through the existence.
courts created by the
constitution and other courts as CONCLUSION
may be established by the At this juncture, it is pertinent
National Assembly or any House of to state that, despite the clear
Assembly. Therefore the separation of powers provided for
judiciary and courts may be used under the 199 constitution, which
interchangeably as they imply the distinctly made provisions for
same thing. As an addendum to the respective functions of the
our position that, the functions three arms of government,
of the three arms of government interdependence among the
are distinct, one cannot find in aforementioned arms of government
this aspect of the constitution is desirable in order to ensure
related to judicial powers checks and balances. As rightly
anything connected with the pointed out that, no man is an
functions of the other two island to himself, the
branches of government. This is legislature, the executive and
an indication that, the the judiciary must relate and
constitution as it is today cross path in the discharge of
though not generally acceptable their functions, toward ensuring
to the populace, still made ample smooth governance in the interest
provisions for a clear separation of the populace that voted them
of powers among the legislature, into power and which must reap
the executive and the judiciary. the dividends of democracy.
And unless reviewed, as the
mechanism for that is being set In the light of the above there
in motion by the constitution of is the need for interaction and
control of one arm by another. arms inevitable for the
The constitution sanctioned the successful execution of the
National Assembly and the Houses provisions of the constitution.
of Assembly not to make laws to
oust the jurisdiction of courts. This is why the president, though
The legislature is also stopped the commander-in-chief of the
from making any Law relating to Armed forces of the federation
criminal offences which have a cannot declare war without the
retrospective effect. In other prior approval of the
words, the exercise of their legislature, at the same time the
legislative powers is made legislature, even the judiciary
subject to the jurisdictions of must request for any security
27
the courts of Law.” agents for their protection from
the President. Another area of
It was pursuant to the foregoing interest is the Money bill which
provisions of the constitution can only emanate from the
that, the Supreme Court condemned Executive. But if the president
the promulgation of the Decree within thirty days after the
purporting to oust the presentation of the bill to him,
jurisdiction of the court during fails to put his assent or where
the military regime in the case he withholds assent, then the
of Attorney General of Western bill shall again be presented to
28
State vs. Lakanmi ors. amongst the National Assembly sitting at
other authorities to that effect. a joint meeting and if passed by
Definitely such an attitude would two-third majority of the members
be vehemently condemned during of both of Houses at the joint
the civilian dispensation. meeting, the bill shall become
law and the assent of the
Even though the three arms have president shall not be required.
separate powers but there is no In the same vein, the executive
water tight compartment in both at the federal and state
between then. There are areas of levels must not unilaterally
the constitution which make withdraw moneys from the
interaction between the three consolidated revenue fund of the
federation and states without prescribed by a law of the House
30
being authorised by the National of Assembly of the state.
Assembly and the State Houses of
Assembly respectively29. The In order to give effect to the
constitution also provides for principle of separation of powers
succour when it stipulated that, and checks and balances, the
the President and Governors may constitution stipulates that once
authorize expenditure in default a member of the National Assembly
of appropriation that is if the or State House of Assembly is
appropriation bill in respect of appointed a minister or
any financial year has not been commissioner respectively, such a
passed into law by the beginning member must resign his
of the financial year. appointment as a member of the
parliament before taking the
Another area of interest is the appointment as a member of the
power given to the legislature to parliament before taking the
conduct investigation into the appointment as a minister or
activities of the executive commissioner as the case may be.
charged with the responsibility It should be noted that the
of disbursing or administering approval of the Senate is also
moneys appropriated or to be required for the appointment of a
appropriated by the legislature. minister to take effect; while
accordingly, the House of
Also the amount standing to the Assembly must also approve the
credit of the states and the appointment of commissioners.
local governments from the
federation account can only be However, failure to approve the
distributed in such a manner as nomination or refusal to make
may be prescribed by an Act of return within twenty-one working
the National Assembly, while the days will be tantamount to
amount standing to the credit of deeming the appointment to be
31
local government councils of a validly made.
state shall be distributed in
such terms and manner as This power extends to some other
executive office appointments the legislature, which we
like some of the bodies created consider dangerous and inimical
by the constitution where the to the success of our nascent
nominees must be screened by the democracy now at its infancy.
Senate or State House of Assembly Such a simmering disagreement is
before the appointment will not good for our image as a
become effective. nation and also capable of
constituting a stumbling block to
The purport of the elucidation of the desired development we have
the manner and how the three arms been lounging for in this nation
of government relate with one that is already bastardise by
another, is to draw the necessary prolonged military rule. What we
inference that, albeit, the three advocate are principled
arms perform distinct functions disagreements that are
but which are interrelated, and articulated with decorum and
for effective governance, one enlightenment.
must exercise control over the
other. This position as In the light of the above, we
discussed earlier on depicts urge the executive and the
that, neither the legislature, legislature at federal and state
the executive nor the judiciary levels to close ranks and work as
should exercise the whole or an a team, in a bid to meet the
integral-part of another’s powers aspirations and yearning of the
as conferred upon them by section masses. It is by so doing that
4, 5 and 6 of 1999 constitution. they will justify the confidence
Be that as it may, this does not reposed in them by the
exclude influence or control by electorates that voted them into
one over the acts of another and power.
ensure the desired checks and
balances. There must be mutual respect
between the executive and
Finally, we must not close our legislature since honour begets
eyes to the incessant rancour or honour, one must not make an
dispute between the executive and unwarranted incursion into the
functions of another but to work 3. Some of the items contained in
together as partners in progress. the exclusive legislative list
referred to in this paper,
RECOMMENDATIONS which ought to be in the
In drawing the contain on our concurrent list should be
discussion, one cannot but looked into and put in the
venture to make some concurrent list.
recommendations to assist all the 4. Independence of the judiciary
operators of the three arms of should be guaranteed at all
government to come to terms with times, this can be achieved by
the onerous duties and ensuring security of tenure
obligations cast upon them by the for the judges and they should
Constitution. The be adequately remunerated.
recommendations are by no means Also the judiciary must be
exhaustive but if implemented properly funded. The
will go a long way in promoting Judiciary should attain
the ideals of separation of hundred percent financial
powers as entrenched in the 1999 autonomy for all its
Constitution. activities.
1. There should be extensive 5. More power should devolve to
education for the the states and local
practitioners of the governments as against the
constitution with their position now.
limitation and powers, this 6. In order to practice true
will to a great extent reduce federalism, like what is
the simmering rancour among obtainable in the first
the three arms of government. republic, states should have
2. Provisions should be made for their constitutions but to be
a residual legislative list, made subject to the National
this we believe, will constitution.
eliminate the conflict between 7. The Revenue allocation should
the federal and state be reviewed in favour of the
governments on the areas of states and the local
their legislative competence. governments, this is because
 they are closer to the people Nigeria Bar Association
and understands their (Special Edition), August
yearnings and aspirations 1989, Pp. 10-11.
better. This will reduce the 5. Nwabueze, “Our Math to
cut throat contest by all the Constitutional Democracy” in
ethnic nationalities for Law & Practice: Journal of the
positions at the centre due to Nigeria Bar Association
the belief that the federal (Special Edition),
government has limitless 6. Nwabueze Op. Cit. P. 11.
resources that can e 7. Lecture titled “Denial of
plundered. Justice through Ouster of
8. Derivation should form the Courts Jurisdiction in
largest percentage of revenue Nigeria” June, 1991. Pp. 86-
allocation given the peculiar 87.
circumstances of our 8. (1971) U.IL.R. 201 (1974) 4
federation and the current ECSLR 13.
agitation for resource 9. (1971) Ibid., at 218-219.
control. 10. Ibid. at 219-220.
END NOTES 11. (1986) 1 NWLR (pt 18) 621 at
*Senior Advocate of Nigeria. 633 – 634.
Principal Partner Yusuf O. Alli 12. Ibid. at P. 627.
& Co. 13. Ibid.
Ilorin. 14. (1981) 10 SC I at Pp. 179 –
1. Selected Essays on Nigerian 180.
Constitutional Law (Benin, 15. Cases and Materials on
1985) P. 32. Constitutional Law in Nigeria.
2. Wade * Philips, Constitutional P. 20.
and Administrative Law (9th 16. Nwabueze, Op. Cit. Pp. 174 –
Edition) by Bradley P. 45. 177.
3. L. Espirit des Lous Chapter 17. Titled: “How to make the New
Xi, Pp. 3 – 6. Democracy Work” – in Burning
4. The Presidential Issues in the 1999
Constitutional Democracy” in Constitutions P. 8.
Law & Prentice: Journal of the 18. Op. Cit. P. 38.
19. See SS. 20, 24, 28 and 43 of
1999 Constitution.
20. See SS. 65, 69, 70, 106, 110,
221 of 1999 Constitution.
21. See Third Schedule part 1 of
the 1999 Constitution.
22. S. 4(1) and (2) of the 1999
Constitution.
23. See part I and II second
schedule, 1999 Constitution.
24. See part I and II second
schedule, 1999 Constitution.
25. See S. 5 (1) and (2) 1999
Constitution.
26. See S.6(1)-(6) 1999
Constitution.
27. See S. 4(8) and (9) 1999
Constitution.
28. Supra.
29. See SS. 80 and 121 of the 1999
Constitution.
30. See S. 162 of the 1999
Constitution.
See SS. 147 and 192, 1999
Constitution.