CONSTITUTIONAL LAW (LAW2303)
LECTURE NOTES
PROF. AMINU KABIR
10th November, 2021
COURSE OUTLINE
 Meaning, nature and scope of constitutional law
 History and constitutional development in Nigeria
 Supremacy of the constitution and rule of law
 Separation of powers and structure of government
 Fundamental Human Right
CONSTITUTIONAL LAW (LAW2303)
LECTURE 1 NOTE
PROF. AMINU KABIR
10th November, 2021
INTRODUCTION TO CONSTITUTIONAL LAW
How is the constitution of the Federal Republic of Nigeria made?
As a law student, there is need for you to know how the constitution is made. This is the because
as a lawyer you will be the ones that will be gather when the society want to draft a constitution,
as an expert, you are entitled to gather your community and advise them on how to go about the
amendment of some of the clauses of the constitution. Due to political inclination of our
community, vast majority of the people always agitates and are of the opinion that the
constitution of the Federal Republic of Nigerian is not made by Nigerians, and therefore does not
believes the constitution will work for them hence there is need to change the constitution.
To pose a legal opinion/response to this agitation, we will have to consider the constitution from
the legal standard and start by asking the question, “What is the legal position of the
constitution?” “what is the recognized legal procedures for making the constitution?” has the
constitution met that legal procedure?” Legal opinion like this can only be given when we set
ourselves outside the politics and concentrate on law.
Spilling the Beans
Right from inception, Nigeria has much constitution; from MacPherson, Clifford... up to the
1999 constitution. With this knowledge, we also know that the pre-independence constitution
was made by the colonialist with a segment of the participation of Nigeria though it was dictated
on us. The name of those who participated in the making of the constitution is known as “grand
norms/grundnorms.”
What is grand norm?
A grand norm is that person, institution or group of people that are constituted; having the
possessed power to declare what the law is at any point in time. Hence, whatever the person
declare law to be is always what the law will look like.
As a manmade prescription, the constitution did not fall from heaven; there is this institution that
has a law making power to dictates what the law is. It is due to this fact that the constitution has
always been the product of the declaration of the grand norms.
Historically, prior to the Nigerian independent, our grand norms had been the British
parliaments. For every constitution we had before our independence, they are all prescribed and
imposed on Nigerians to become our law. After Nigeria got her independence, we started the
process of creating our own constitution up till the present time.
To create our constitution, we choose varieties of names that see to those processes of creating
our own constitution. Among those names include:
i.
Constituent Assembly
ii.
Constitution Drafting Committee
iii.
Constitution Conference
Constituent Assembly
Constituent Assembly is the assembly of people gathered together for the purpose of creating
constitution. There are varieties of way in which people are brought to the assembly. Some of
these members are

i.
Elected member
ii.
Professionally experience technocrats.
Elected members are mostly politicians that are elected by their local communities to
represent their interest. Those categories of people either come out voluntarily or are
nominated to be endorsed among the law making group.

Professionally experience technocrats are specialized people who knows the in and out
of governance, law, economics etc., they are categories of people that know the in and
out of those areas and are appointed to advice the assembly on legal, economic and
principles that need to be incorporated into the constitution. They don’t actually
participate in drafting.
These two categories of people unanimously agree under the constituent assembly to come up
with a constitution.
Constitution Drafting Committee (CDC)
The Constitution Drafting Committee has two qualities.
i.
Sometimes before the constituent assembly is created, there is a Constitution Drafting
Committee.
ii.
But most time, the Constitution Drafting Committee comes after or within the
creation of the Constituent Assembly.
As the constituent assembly works and debates, the Constitution Drafting Committee which
involves technically learned people like lawyers who is taught the art of legal writing works and
draft the constitution. At the end of deliberation of the constituent assembly, the CDC must have
finished drafting the constitution and submits it to the constituent assembly for further
verification.
Constitution Conference
Sometimes when politicians talk or operate, they operate in a language that is intangible to the
sense of the ordinary people. In the legal parlance, both constituent assemble and constitution
conference means the same thing because the intention behind the two is the same. While a
conference suggests a wider extensive discussion, consultation, than the Constituent Assembly,
in reality, they do the same job.
These different phrases are used within the realm of Constitutional Law to show how the
constitution imade.
CONSTITUTIONN
LAW (LAW2303)
SCOPE OF CONSTITUTIONAL LAW
What are the fundamental issues that must be in a constitution?
Among the fundamental issues that must be in the constitution, the types of government that the
country wants to establish must be included in the constitution. Types of government include:
unitary, military, parliamentary, federal government etc., Regardless of the types of government,
the fundamental constitutional principles are always the same. Those fundamental principles are
issues that must be incorporated in the constitution; those issues form the scope of constitutional
law. Among those issues include
i.
Fundamental Human Rights: These are the rights to be enjoyed by citizens of the
country.
ii.
Structure of government: This refers to the nature and composition of the
government.
iii.
Organs of government: include the executive, legislature and the judiciary. There
should be no ambiguity as to its establishment. The organs of government in Nigeria
are expressly provided by section 4, 5 and 6 respectively.
iv.
Formation of political parties.
v.
Supremacy of the constitution: the overall final grand norm must be created while
creating a constitution. The overall body created is vested with supreme authority.
The supremacy of the constitution in Nigeria is expressly provided in section 1 sub 1
and 3 of the Constitution of the Federal Republic of Nigeria.
vi.
Rule of Law: it is imbibed in the constitution either through the supremacy of the
constitution or sovereignty of parliament.
vii.
Preamble
viii.
Amendment process of the constitution
ix.
Levels of government: It is otherwise known as tires of government. they include:
Federal, state and local government
x.
Security
xi.
Fundamental statutory bodies/institution: These bodies are creation of the constitution
that is so fundamental to national existence i.e., the constitution creates them without
leaving its creation to the legislatures.
xii.
Economics/financial issues: It involves how the country gets is revenue, and how they
allocates it.
xiii.
International relationship
xiv.
Education
Challenge of the constitution
One of the problems the constitution is facing is the challenge of the legitimacy of our
constitution. Vast majority of the people raised a political challenge against the preamble of our
constitution. They are of the opinion that the preamble that says “we the people of the Federal
Republic of Nigeria, having firmly resolve, to live in unity and harmony… provide for a
constitution” is a lie. That we do not give our self the constitution and therefore do not
recognized the legitimacy of the constitution. Politically they are right but from law they are
wrong. This can be justified by bringing our mind back to the grand norm.
At any point in time, there is always the grand norm even during the military, the Supreme Court
of Nigeria has always identified a certain law and has always affirm that the supreme military
authorities as the grand norm. In search of ultimate law that can be used to argue in the court,
you will first have to identify the grand norm. Whenever a law is been drafted, it only carries the
weight of an ordinary document unless and until the grand norm (decree) gives that legal
document legal approval. That is why you find out that in all constitution the first law that you
have is the law that rolls the existence of the constitution. It also on this note that the military
also made the suspension and modification decree whenever there is a coup. The reason for this
decree is because the military has taken over power and since there is a new grand norm, it is
necessary for them to suspend the old grand norm which is the constitution.
To fully understand this better, it is expedient for us to flash back our mind to the, 1979
constitution (the constitution that came after a civil war). Prior to 1979, the military, while they
were still in power, they created a Constituent Assembly that sat down and created the 1979
constitution. It was this same military that gives the legal approval to the 1979 constitution and it
comes into being. We should however note that it was the same grand norm that comes and
suspends the constitution that also gives the legal approval to a new grand norm which is the
1979 constitution.
Technically, it may not be correct to those who are of the opinion that what the preamble said is
in correct. However, the practical scenario that will clarify the issue of whether the people
actually created our own constitution is displayed when Sir Abubakar Abdulsalam takes over the
mantle of leadership when Sani Abacha, the former head of state died. To relinquish his position
as the grand norm, he went back to the 1979 constitution and adopts it as the 1999 constitution.
We should as well remember that the 1979 constitution was a product of the duly constituted
Constituent Assembly, which were made of Nigerians who were elected and appointed to create
that constitution. It is on this note that I will opine that the preamble of the constitution that says
the people of this country give our self the 1999 constitution is historically and legally correct.
The necessity of that very time the 1999 constitution was created do not give room for the way it
ought to have been done (possibly by allowing the whole Nigerians to exercise their right on
whether they need the constitution or not). That is why the principle of expedient comes into
play at the time the 1999 constitution was created.
In conclusion, the 1999 Constitution of the Federal Republic of Nigeria is from us the Nigerians
though not from the whole Nigerians. However, Nigerians should have been given another
opportunity to carve another constitution. Therefore as a lawyer or aspirant to the bar, we
concede to the fact that the whole Nigerians did not contribute to the development of the 1999
constitution; it is not necessary the whole Nigerians to do that. This is because the principle of
expedient (necessity) at that time allows the grand norm to decide what the law should be so, he
has decided that it is going to be the reciprocal of the 1979 constitution.
How do you determine the grand norm?
To identify the ultimate principle at any point in time, the grand norm is that person, set of
individuals or institution that have the responsible to
i.
say what the law is,
ii.
create all institution including the citizens
iii.
give power and limitation to those institution
In Nigeria currently, it is only the constitution that have the capacity to perform the above
responsibility. However, if there is an effective coup in Nigeria, this means that there is an extra
constitutional change then that person who perpetrate and succeed in making that change will be
assumed as the new grand norm.
Identification of the grand norm
 Where there is democratically elected government, the grand norm is the constitution not
the president or the legislation.
 In parliamentary government, the grand norm is the queen. She decides what the law is
or should be
 During the military government in Nigeria, the grand norm was not the court. It was the
supreme military council
What happen when military government takes over power?
When the military forcefully takes over power, they have no allegiance to the constitution BUT
even during the military administration, there are circumstances where the constitution
continues to operate.
Constitution suspension and modification decree
When they take over power, the first decree they make is the constitution suspension and
modification decree No 1.
This decree will do two things
1. It will suspend
2. It will modify
What is the suspension all about?
The military tends to suspend the supremacy of the constitutional provision. The reason for their
suspension is because they have done something contrary to the constitutional provision. they
therefore suspend:
i. The operation of the legislature
ii. Some part of our Fundamental Human Right
The reason for this suspension is because those constitutional provisions suspended may hinder
their operation.
However, they retain some part of the constitutional provision. Some of the constitutional
provision that they retain include:
i.
Establishes the federal structure of Nigeria
ii.
Some of the fundamental human right etc.
For the constitutional provision that were not suspended to continue been applied in adjudication
so the court applies them. For the lawyers in this instance, they look up to the military in their
decrees and edicts.
Rigid and Flexible Constitution
Rigid Constitution: All rigid constitution is written constitution. This is because there is rigid
procedure for its amendments. Its rigidity is in respect to how do you change it. Rigid
constitution has the supremacy of the constitution.
Flexible Constitution: Is the unwritten constitution which has easy amendment procedure. This
type of constitution are normally followed by the sovereignty of the parliament
 SUPREMACY OF THE CONSTITUTION
The supremacy of the constitution says this
I am supreme; everybody acts according to what I say. If you do anything contrary to what I say,
what you do is unconstitutional, invalid. I give authority to all persons, I establish all institution.
No body must do anything that will undermine me or contrary to what I say, I am the alpha and
omega, I am the final resort, I say and what I say is final. No part of Nigeria shall be governed
except with what I say. I have established a body that will make sure that they confirm your
actions whether it is in conformity with what I say or not. I the constitution hereby create the
courts that will interpret me and say whether what you do is in conformity with what I say. I am
the constitution.
As the supreme law of the land, the constitution prevails over all things and establishes all
institution which assigns those institutions their powers and functions. Hence, the principle of
supremacy of the constitution is absolute. The supremacy of Nigeria constitution is expressly
provided in section 1 sub1 and 3 of 1999 Constitution of the Federal Republic of Nigeria.
Exception to the principle of supremacy of the constitution
Though the Supreme Court has never undermine the supremacy of the constitution, but
sometimes the court has problem in upholding the constitution’s supremacy when it conflicts
with the international law that creates international obligation to Nigerians.
International laws by its nature bind the country that consent to it as part of their law in relation
to her relationship with other countries. Nigeria is not an exception in this law; there are
international agreements or treaties that Nigeria has voluntary entered into with other sister
states. However, the Supreme Court is in dilemma when our indigenous law (the constitution)
conflict with that of the international law that creates international obligation to Nigerians. In this
circumstance, the Supreme Court is seen to involve in some political decision making. For
Supreme Court of Nigeria to be involved in political decision making is also applicable to the
Supreme Court in other countries.
Note: international law is only applicable to a country only when that country consents to it.
Loopholes of the supremacy of the constitution
A. Even though the constitution declares its supremacy, it still has some weaknesses. There
are two criminal offences which attract no punishment if you succeeded or failed while
attempting to commit them. These offences include:
i.
Suicide
ii.
Treason
For academic purpose, it can be argued that the constitution is weak because there is no
punishment (for treason) for violating the constitutional supremacy that amount to change in
government that is when successfully carried out. However, punishment is attached to it when
failed.
B. The power of the court has been limited to entertain challenges of authority of the person
that make the law from 1st January, 1966 (the first military coup) up till the 28th May,
1999. Judicial power is excluded from entertaining such claim. See section 6 (d) of
CFRN.
CONSTITUTIONAL LAW (LAW2303)
LECTURE 3 NOTE
PROF. AMINU KABIR
15th November, 2021
SUPREMACY OF THE CONSTITUTION AND RULE OF LAW
Continuation on the loopholes of the supremacy of the constitution
The Constitution is not sacrosanct, it has loopholes and among them are the ones mentioned in
the previous class. The penalty or punishment as highlighted in the first example is not in the
criminal sense but lack of penalty in relation to the loop holes of the constitution. For second
loophole, the constitution has in a way encouraged its violation by approving change of
government by extra constitutional means. This is an approval in the sense that the judicial
power of the Court is excluded to entertain any matter that seeks to challenge the authority of
persons that change government by extra constitutional means from 1st January, 1966 (the first
military coup) up till the 28th May, 1999 i.e., they cannot be sued. However the two loopholes
mentioned are only for academic purpose
Reasons why those law cannot be challenged
The laws cannot be challenged because:
i.
They are made by the grand norm
ii.
They will be chaos in the society: during this period, both good and bad laws were
made. If those laws were allowed to be challenged, there will be a big problem in the
society. Bayero University Kano will cease to exist because an Act was created
during the Military regime to create the university.
It should also be noted that the two loop holes mentioned breached the provision of section 1 of
the constitution. For the second loophole, the very moments the extra constitutional change of
government fails, it becomes a criminal offence; having succeeded, they have become the grand
norm hence they suspend section 1 and they cannot be punished.
The above criticism to the supremacy of the constituion is to help you shape your way of
thinking relating to sacrosanct and weakness of the constitution.
The protection given to section 1 is by empowering the court; by creating he judiciary. The
judiciary has the responsibility of protecting the sanctity of this section. Section 6 creates the
judiciary and has assigned their responsibility. The court has been empowered to enforce the
law; this responsibility is a wide one. The court give life and protect the provisions of the
constitution.
Actual fact
For the supremacy of the constitution and other provision to survive and operate better, it is
better for us to allow the court to interpret the meaning of the constitution better rather than us
making noise about amendment of the constitution. Conflict of international law with the
supremacy of the constitution is an example to illustrate this fact. For instance Chapter II of the
constitution which is titled “fundamental objectives and directive principles of state policy” try
to make the government observes, enforce and apply the fundamental objectives mention there.
Those fundamental objectives are not right; because they are not right, they are not enforceable.
The non-enforceability of those objectives is clearly showed in section 6 (c) of the constitution.
Some of those objectives mention there include:
i.
ii.
iii.
Education
Health
Social amenities etc.
Note: the above mentioned items are not right but a mere directive principles that the state may
either choose to follow or not.
Because of the global cry against the non-enforceability of these objectives, there has been
strong moment for the conversion of these objectives to right. Several countries including
Nigeria come together and made a treaty (agreement) to convert those fundamental objectives to
right. This treaty was named “African Charter on Human and People’s Right.” It is also known
as the Bujones Charter After the agreement was reached, those objectives of state policy were
converted to enforceable rights that can be sued if the government breach (fails to perform) any
i.e., same way fundamental human rights can be sued for their breach.
Nigeria after agreeing with this treaty alongside with other countries, the representative of
Nigeria in this treaty takes it to National Assembly and domesticated it as a national law. Section
6(c) of the constitution is not in conformity with this treaty hence, the enforceability of this
agreement did not come to light as the Attorney General dismisses the charge from people to
enforce this law.
The Supreme Court while deciding on the conflict-ness of these two laws, they make their
decision political. The Supreme Court concluded that international law is important to us, we
cannot get out from our international commitments and lie behind our local law and get away
from the international obligation we have voluntarily created for our self. They therefore say that
neither say Chapter II is unconstitutional nor the Bujones Charter (the treaty made). The story is
about the responsibility of the court in interpreting the constitution. This responsibility of the
court (the judiciary) is in a way developing the jurisprudence of the constitution. The Nigerians
are now left to struggle.
Another example of this responsibility of the court in interpreting the constitution to develop the
jurisprudence of Nigeria is the incidence that occurs during the tenure of the late president Umar
Musa Yaradua. Where he left the presidential seat vacantly; the court will interpreting the law, to
fill in the vacant space, they use the doctrine of necessity to interpret the constitution. However
this doctrine is not present in the constitution.
The same with “right to life” which literally means for one to be alive in the physical existence;
the court while interpreting this right interprets it to mean not in the physical sense but the ability
to enjoy the functional thing worth living. So when someone does something that will render you
incapable of enjoying of life; that person has violated your right to life.
In relation to the functional obligation of the court to interpret the law, the state government is
currently waiting for the decision of the court to decides whether the federal government actually
have the power under the exclusive legislative list to regulate issues relating to VAT –Value
Added Tax.
The amounts of work the Supreme Court of America must have done in interpreting the
constitution far outweighed the numbers of interpretation done by the US Congress. Right from
onset, the court has been developing the constitution. The cry for amendment in Nigeria is
premature hence; the court should be allowed to give meaning (interpret) to the constitution. By
exercising this duty, the court has protected the sanctity of the supremacy of the constitution.
See the case of Marbury v Madism
 RULE OF LAW
The term Supremacy of the constitution is used to describe the Rule of law. Where the
constitution is supreme, it becomes the law hence the constitution rules. This term supremacy of
the constitution is also synonymous to the term called the rule of law. Since they are
synonymous, any discussion made supremacy of the constitution will definitely take you to the
rule of law. The only slight difference between the both is; while supremacy of the constitution is
theoretical, rule of law is practical. You will either see rule of law in supremacy of the
constitution or vice versa.
What is rule of law?
Rule of law is an old century concept developed by a prominent jurist called Professor A.V
Dicey. The ideology behind rule of law is that it is the law that lead and not any other person or
thing or interest of any ruler, king head of state etc.
 Dicey’s ideology on rule of law
Dicey is of the view that rule of law requires the predominant of regular law as oppose to
arbitrariness or even discretionary powers.
Interpretation of Dicey’s view
Society should be governed by the regular law i.e. ordinary law of the land that is predictable not
ambiguous (hidden) and the law should pre-dominate everything. Dicey as to arbitrariness, he
opined the society should be governed without having interest on personal issues. He also kick
against discretionary powers. According to him, discretionary power bubbles up opportunity to
abuse the political power. By regular law, he means the law that is expressly known not hidden.
Dicey is also of the view that rule of law means equality before the law. Every person in the
society is subject to the law regardless of their status i.e. kings and beggars are all equal before
the law. They should be no discriminations, favours, exception; if this can be carried out; there is
an absolute equality before the law. All are subject, equal to the same law.
The final view of Dicey on the rule of law is about the soul of the law. There he was emphatic
about judicial powers. In his view, law is about what the court said it is (interpretation of the
law/case law). In this sense, when one is looking for law, one should visit the (recording) of the
court.
The above assertions, are the summary of AV Dicey’s Rule of law
-visit Onimisi’s care for more details
Spilling the bean
The above theoretical expositions are not practically attainable. We accept the spirit of Dicey’s
exposition but there are exceptions. The exceptions to this principle of rule of law include:
i.
There must be an existence of discretionary power for the society to function well.
For instance, there are many things you get in the society not out of right or regular
law; this can be practically be illustrated in Bayero University, admission scheme
exercise. But this discretionary power must be regulated.
ii.
Equality before the law is not also practicable, there are legal exceptions. The
operation of the law in terms of enforcement in equality is sometimes neutralized.
Those legal exceptions include:
a. Executive immunity
b. Diplomatic immunity
c. Suing a cooperate organization: suing a cooperate organization (Bayero
University) for breaches a contract is subject to limitations
d. Inadequate independence of the judiciary
e. State of Emergency
Reasons why Dicey’s exposition on rule of law is practicable unattainable in the modern era
This principle of rule of law was propounded in the 20th century. During this time, it has been in
existence the very way Dicey propounded it. In the 20th century, the technical meaning and
application of this principle started changing. So what rule of law means today in the 21st
century differs from what Dicey mean in the previous century. These differences are in terms the
new phase (things) rule of law is understood to mean to today. This new phase of the society is
because of the dynamism of the society. For instance, what does not exist today in black letter
law is now considered a right. Technology also has brought up a number of rights that never
existed in the 20th century. Issue of corruption and bad governance in our contemporary society
has caused a lot of havoc that hinders the applicability of rule of law.
CONSTITUTIONAL LAW (LAW2303)
LECTURE 4 NOTE
PROF. AMINU KABIR
6th December, 2021
CONTINUATION
Context of why Dicey totally opposes the use of Discretionary Powers
His exposition was at the time when the kings were very powerful; they were termed as the law.
They were the judges, the law makers in fact they performs the three governmental function;
they were the executive, legislature and the judiciary. Due to this, they become tyrannical. In
respond to that, Dicey kicked against the use of discretionary power.
Implication of rule of law to the law students
As a law student, you are going to be the judge who will interpret the law, legislatures, governors
who will be responsible in making and interpreting the law.
Law is the tool or instrument that regulate the society. It is because of this, the supremacy of law
in the society is emphasis.
Whatever you do as lawyers, what you should try to do is to know what the law is and where do
you find the law. After finding the law, try to weight its superiority or priority. For instance, if
you find different laws (ones made at the local, state, federal government and even the ones
made at the international level) relating to the same subject matter, you will have to determine
the one to be applicable with respect to the matter at hand. Unless you successfully prioritize the
hierarchy of law, rule of law cannot prevail. Another example is prioritizing the supremacy of
the constitution over other laws including the Muslim’s dogmatic believe.
On this note, we should be able to understand that the society is ran and governed by rule of law.
Both the political and legal activist are also of the view that rule of law should prevail over the
tyrannical dictates of the rulers.
How does the constitution coexist with the Islamic Law?
The constitution has recognized the application of Sharia to some extent; it did not throw it out
completely. The constitution makers were very smart, when they were dividing the legislative
power between the federal and the state, they didn’t give the whole power to the federal
government, the left a lot of things to the state. Since the state has the power to make law for the
good governance of the state, the legislatures of that state now make laws that they want to apply
to her citizens. In applying this omnibus provision, the State House of Assembly of Muslim’s
states or state that have predominant Muslim population, have use that provision to enact laws
that are in conformity with Sharia. In northern states today, we have the Sharia Penal Code that
incorporate a lot of Islamic criminal law. Not just criminal issues; other issues such as marriage,
inheritance, also get Sharia applied to them too.
The issue of the constitution and the Islamic law is not only about conflict, it is about the
umbrella of coexistence that has been created and a lot of laws are currently now applicable. The
only contentious argument we have today in our country which currently have no decision is that
since the Muslims have now been given the right to appeal even up to Supreme Court for the
application of Muslim personal status (marriage, divorce, etc.,), they should also be allowed to
apply Sharia criminal law applied at the superior court. This argument was postulated by the
academic jurist. In nutshell, Sharia does not apply to the none Muslims.
 SAPARATION OF POWERS
Introduction
This topic is very important to the law students and to our lives in general. Most of the cases we
find in court on constitutional issue boarders around the topic “separation of powers.” Often, the
kind of conflict we always find among the organs of government always centers on separation of
powers between them. The conflict is about who has this power and to what extend does such
organ has the power. It is to this effect that the recent case fill before the Supreme Court by state
government against the federal government is on separation of powers.
The topic sound so simplistic but there are lot of things which we need to channel our mind to.
To understand this, we need to first understand the spirit, basic, and concept of separation of
power. As we progress, we are also going to look at how the constitution structured, divided or
shared the powers among the organs of government. In essence, it is very important to
understand what the principle is all about and why do we need to know it.
By structure, we mean what is the institution that has the powers,
By division we mean how the constitution has shared the powers.
The constitution also allows for the coexistence of the sharing of the powers to the extent that
people are of the opinion that the title for this topic should not be separation of powers but
sharing of powers.
To what extend has the constitution shared power?
Separation of powers is synonymous to sharing of powers discuss?
The topic sharing of powers goes far beyond a mere separation of powers between the federal
and state government; it is basically about the sharing of powers between the organs of
government. Those organs include: Executive, Legislature and the Judiciary.
A French political philosopher by the name Montesquieu is attributed to the development of
separation of powers in his work De l’espirit des lois (The Spirit of Laws) in 1748. In his
opinion, there must be clear separation of powers between the organs of government. He said
that no organs of government shall exercise another function of the other; all organ must be
separated and live independently of the other. His view was also to take away power from the
king just like what Dicey did and divide it. This is due to the fact that at that very time, the king
was the law maker, implementer, and also the adjudicator.
In clear tone, governmental powers must be separated, and given separately to separate organs of
government. An executive must not be seen in the field of the legislature nor the judiciary.
So,
o The legislature makes the law
o The executive implement and execute the law and
o The judiciary then interprets (give meaning) the law
Academic Argument
The judiciary is sometimes seen to exercise legislative powers in the process of their
interpretation by making laws. Sometimes the magnitude, extend, implication of the
interpretation goes beyond what the legislature seemingly legislates. Judges that are quiet
dynamic are seen to be making laws when they interpret.
They does this via case law
Same goes with the executive; they are seen to be allowed to delve into the arena of legislation.
This is in a way allowed by the constitution itself.
How the constitution has divided the powers?
 The legislative Arm
The power to legislate –to make law in Nigeria lies on the legislative arms of government as
provided in section 4 sub 1-9 of the 1999 constitution as amended. This section is divided into
two parts as it divides the legislative responsibility between the National Assembly and House of
Assembly of the State in sub section 1 and 6 respectively.
Below is the express provisions of the legislative powers with its extent and limitation:
4. (1) The legislative powers of the Federal Republic of Nigeria shall be vested in a
National Assembly for the Federation, which shall consist of a Senate and a House of
Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good
government of the Federation or any part thereof with respect to any matter included in
the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.
(3) The power of the National Assembly to make laws for the peace, order and good
government of the Federation with respect to any matter included in the Exclusive
Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion
of the Houses of Assembly of States.
(4) In addition and without prejudice to the powers conferred by subsection (2) of this
section, the National Assembly shall have power to make laws with respect to the
following matters, that is to say:-
(a) any matter in the Concurrent Legislative List set out in the first column of Part II of
the Second Schedule to this Constitution to the extent prescribed in the second column
opposite thereto; and
(b) any other matter with respect to which it is empowered to make laws in accordance
with the provisions of this Constitution.
(5) If any Law enacted by the House of Assembly of a State is inconsistent with any law
validly made by the National Assembly, the law made by the National Assembly shall
prevail, and that other Law shall, to the extent of the inconsistency, be void.
(6) The legislative powers of a State of the Federation shall be vested in the House of
Assembly of the State.
(7) The House of Assembly of a State shall have power to make laws for the peace, order
and good government of the State or any part thereof with respect to the following
matters, that is to say:(a) any matter not included in the Exclusive Legislative List set out in Part I of the
Second Schedule to this Constitution.
(b) any matter included in the Concurrent Legislative List set out in the first column of
Part II of the Second Schedule to this Constitution to the extent prescribed in the second
column opposite thereto; and
(c) any other matter with respect to which it is empowered to make laws in accordance
with the provisions of this Constitution.
(8) Save as otherwise provided by this Constitution, the exercise of legislative powers by
the National Assembly or by a House of Assembly shall be subject to the jurisdiction of
courts of law and of judicial tribunals established by law, and accordingly, 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.
(9) Notwithstanding the foregoing provisions of this section, the National Assembly or a
House of Assembly shall not, in relation to any criminal offence whatsoever, have power
to make any law which shall have retrospective effect.
Commentaries
4 (1) Establishes the legislative power to make law for the whole federation and vested that
power on the National Assembly which consist of the Senate and House of Representative
(2) Makes provision for the matters under the Exclusive Legislative List as mentioned in part one
of the second schedule.
What is a schedule?
A schedule is that part of a document which contains specific detail that explains the body of the
documents. It is normally found at its end of the document.
Some of the matters under the Exclusive legislative list include:
a. Arms, ammunition and explosives.
b. Aviation, including airports, safety of aircraft and carriage of passengers and goods by
air.
c. Awards of national titles of honour, decorations and other dignities.
d. Bankruptcy and insolvency
e. Banks, banking, bills of exchange and promissory notes.
f. Borrowing of moneys within or outside Nigeria for the purposes of the Federation or of
any State. Etc.
Matters under the Exclusive legislative list are issues which the National Assembly will have the
power to make laws on. Matters listed here affect National unity, economy and sovereignty
(3) House of Assembly of the State is exempted in the matters mentioned in the Exclusive
Legislative List. As such they don’t have the power to make any law with regards to the matter
under the Exclusive Legislative list except with the express permission of the constitution “shall,
save as otherwise provided in this constitution.”
(4) This sub section adds two more powers to the existing power of National Assembly. These
extra powers added are contained in paragraph (a and b) of the above sub-section.
(a) The Constitution extend the power of the National Assembly to legislate on matters
under the Concurrent Legislative List as contained in part II of the second schedule with
a limitation attached.
(b) The Constitution also extend their capacity on any matter that relates to law making
as empowered with the provisions of the constitution.
(5) When the laws made by the House of Assembly of a State conflicts with that of the National
Assembly, the law made by the latter shall prevail and that of the former shall to be void.
(6) Establishes the legislative power to make law for a State and vested that power on the State
House of Assembly which is made up of a single chamber.
(7) It gives the House of Assembly of a State to make law on matters:
(a) Not included in the Exclusive Legislative List
(b) Matters under the Concurrent Legislative List
(c) Other matters which the constitution empowers it to legislate on
Matters under the Concurrent Legislative List are issues which the National Assembly and
House of Assembly of a State can make laws on. Those matters are contained in Part II of the
Second Schedule as “Extent of Federal and State Legislative powers.”
(8) Excludes the powers of both National Assembly and House of Assembly of a State from
making laws that eject the jurisdiction of the court or judicial tribunals from entertaining such
matter before them.
(9) Cancels backdating of laws i.e. making of laws to have a retrospective effect on the offender