EXECUTIVE POWER OF GOVERNMENT.

THE PRESIDENCY UNDER THE 1999 CONSTITUTION.

Presidency in Nigeria started in 1963 when the 1960 independence constitution which was
imposed on the country by the British colonial government was amended from a monarchical
system whereby the queen of England was the Head of State for Nigeria and the governor-
general was the representative of the queen of England in Nigeria.
The 1963 Republican Constitution provided for a president and a prime minister and his
ministers. The president was the Head of State and Commander-in-Chief of the Armed Forces
of Nigeria. Though Nigeria was a republic the then president occupied a position analogous
to that of a constitutional monarchy as representative by the governor-general of an
independent country within the common wealth of nations. The president was required to
exercise his power on the advice of his council of ministers or a minister of the government
of the Federation acting under the general authority of the council of ministers or prime
ministers. In other words, the president under the 1963 constitution was a limited or
constitutional president who presides but does not rule. The prime minister was the head of
government while the president was the ceremonial head of state. The 1999 constitution like
the 1979 constitution created an executive presidency. Am executive president is both the
head of government and head of state and commander in chief of the Armed forces of
Nigeria.

CONSTITUTIONAL AND EXTRA CONSTITUTIONAL CHARACTER OF

PRESIDENTIAL POWER.
Section 5(1a) of the 199 CFRN provides that subject to the provision, the executive power
of the Federation shall be vested in the president and may be, subject as aforesaid and to the
provision of any law made by the National Assembly, be exercised by him either directly or
through the vice president and ministers of the government of Federation or officers in the
public service of the Federation.
The 1999 Constitution of Nigeria can be said to have created an imperial presidency. The
president is both a person and an institution and unlike other institutions the presidency is led
by an individual elected by the entire nation to secure its survival. To represent it to the world
and to voice its aspiration. The constitution has not created a magisterial presidency, it has not
created a modest chief magistrate. We are and must remain a political entity led by 3 equal
branches so to speak, which one permanently more equal than the two others. As the Supreme
court and national assembly are pre-eminent in constitutional theory, the president is pre-
eminent in constitutional fact.
After Section 5(1a) of the CFRN has vested the executive powers on the president
Paragraph b extends the executive power of the president the execution and maintenance of
the constitution, almost all the laws made by the National Assembly and to all matters with
respect to which the National Assembly as for the time being power to make laws. The
national assembly is empowered to legislate irrespective of the sixty-eight items in the
exclusive legislative list and in conjunction with the states houses of assembly, to legislate in
respect of matters under the concurrent list as apportioned therein.
EXECUTIVE POWER OF THE PRESIDENT.
The phrase ‘executive powers’ means generally the power to execute laws or carry them into
effect a brief look at Section 5(b) of the constitution, expressly grants this type of executive
power to the president in relation to the constitution and laws made by the National
Assembly. There is therefore no doubt that the powers earlier granted under Section 5(a) of
the constitution goes beyond mere execution of laws or maintenance of the constitution or
other powers specifically granted under other sections of the constitution because of the
phrase ‘shall extend to’. This is because the constitution or the national assembly cannot
envisage or foresee all issues that may confront the president in his enormous duties of seeing
to the day to day running of the business of the nation. Moreover, it seems to be the only one
suitable for such general grant of power since he is the only candidate in the government
elected with the whole nation as its constituency. Note that the authority granted to him under
Section 5(a) of the constitution is vested solely in the president and cannot be claimed by
the vice-president or any other member of his cabinet. This section however, empowers him
to delegate the powers in his discretion to the vice-president, ministers or officers of the
public service of the federation except where the constitution provides otherwise see Section
148(1) of the constitution.
THE EXTENT OF PRESIDENTIAL POWER IN LEGISLATION.
The president can take executive actions in respect of the items in the exclusive and
concurrent list even when the national assembly as not legislated upon such item. This is
because the powers of the president are co-extensive to the powers of that of the national
assembly and even more. Section 5(1b) of the Constitution provides that the presidential
power shall extend to the execution and maintenance of the constitution, all laws made by the
national assembly and to all matters with respect to which the national assembly as for the
time being powers to make laws.
THE THREE SEPERATE CATEGORIES OF PRESIDENTIAL POWERS VIS A VIS THE
EXCLUSIVE AND CONCURRENT LIST.
1. Presidential Action Following National Assembly Authorization: When the president
of Nigeria in any of the item in the exclusive legislative list or in the concurrent
legislative list the situation is as follows; if there is any existing law on the matter then
that law will be deemed to be an act of the national assembly and the president will be
bound to act in accordance with that law as the president cannot constitutionally
violate the law. His power to act will cover all incidentals and implied matters
attendant to the issue. If however, the national assembly has not legislated on the issue
and there is no existing law on the matter, the president can exercise his executive
powers constitutionally and no one can accuse him of acting unconstitutionally.
2. Presidential Powers in Respect of any item in the Concurrent Legislative list: If the
president carries out his executive powers in respect of any item in the concurrent
legislative list and there is a conflict between the executive exercise of power and a
law of the state government in respect of that subject matter, the two exercises will
have to adopt the strategy of peaceful co-existence. This is because the constitution in
Section 4(5) provides that if any law is enacted by the state house of assembly is
 inconsistent with the law validly made by the national assembly the latter shall prevail
and that other law shall to the extent of the inconsistency be void. This federal
supremacy is not extended to an executive action of the president that is in conflict
with a law validly made by the house of assembly on the subject matter within the
concurrent legislative list. This is the reason for the adoption of the strategy of
peaceful co-existence.
3. Presidential action contrary to the directive of the national assembly as provided by
the constitution; When the president takes executive measures which is incompatible
with the expressed or implied will of the national assembly in respect of matters
within the jurisdiction of the national assembly, the power of the president is at it
lower ebb. If by statute the presidential power is to be exercised in a particular manner
and subject to the limitation and provisions contained in the statute it can only be so
exercised. In such a case, exercise of presidential power contrary to the statutory
provisions become illegal. When there is a statute of a particular subject matter,
presidential power is in the least favourable of constitutional posture.
THE PRESIDENT POWER; POWER TO MODIFY EXISTING LAWS TO BRING SUCH
LAWS IN CONFORMITY WITH THE 1999 CONSTITUTION.
In the 1979 constitution handed over to the civilian administration by the military
government headed by general Olusegun Obasanjo, the constitution listed many decrees that
cannot co-exist with the constitution.
However, because of the limited time at the disposal of general Abdulsalami Abubakar bad
decrees that could not co-exist with the 1999 constitution were not listed and were
specifically repealed. This was the reason for the inclusion of Section 315 of the 1999
CFRN.
SECTION 315 OF THE 1999 CFRN.
The section provides that the National Assembly can modify an existing law, which Section
315 (4b) of the 1999 CFRN defines ‘any law and includes any rule of law or any enactment
or instrument whatsoever which is in force immediately before the date when the constitution
of 1999 comes into force or which haven’t been passed or made before that date comes into
force after that date to bring such laws into conformity’
Subsection 2 says that the appropriate authority which subsection 3 says means the president
in relation to the provision of any federal law and state governor in respect of any state law of
any person appointed by any law to revise or rewrite the laws of the federation or of a state,
may at any time, by order, makes such modification in the text of any existing law as the
appropriate authority considers necessary or expedient to bring such laws into conformity
with the provision of the constitution.
Modification includes, addition, alteration, omission, or repeal. Note however, that the power
of the appropriate authority to add, alter, omit or repeal is not open ended, it is limited to only
those laws that cannot co-exist with the 1999 constitution for examples decrees or any other
bad laws.
THE POWER OF THE PRESIDENT IN RELATION TO THE FORMAL LEGISLATION.
If a bill has been passed by both houses of the national assembly, it has to go to the president
for his assent. In other words, the president must sign the bill for it to become an act of
parliament. These powers must be distinguished from the power to make modification in the
text of any existing laws as the president considers necessary or expedient to bring that law to
conformity with the provision of the constitution.
If a bill is passed by both houses of the national assembly is presented to the president for his
assent or signature, he has a period of 30 days within which to sign the bill or to indicate the
exercise of his veto power. If he fails to do either of the two options open to him, then the bill
will be returned to both houses of parliament and be passed by a joint sitting of both houses
with 2/3 majority then the bill becomes an act of parliament even without the president
assent. He is however is obliged to execute such laws.
THE POWER OF THE PRESIDENT IN RELATION TO APPOINTMENT.
The president is empowered by the constitution to appoint members of the executive council
of the federation and they must be approved by the senate before the appointment can be
legal. The president is also empowered to appoint persons as advisers as determined and
approved by the senate. In addition, he appoints the members of the Federal Civil Service
Commission they must be persons who shall in the opinion of the president be of
unquestionable integrity and sound political judgement. The president appoints the chairman
and one person to represent each of the state of the federation in the Federal Character
Commission. The president also appoints for each state of the federation, a resident electoral
commissioner who shall be persons of unquestionable character. The president is empowered
to appoint some members of the National Defence Council, apart from those members
holding such offices and commands as indicated in the constitution. The president shall
appoint members of the Revenue Mobilization Allocation and Fiscal Commission. One
member from each state of the federation and the FCT, Abuja who in his opinion are persons
of unquestionable integrity with requisite qualifications and experience. The president also
appoints the Chairman and member of the Code of Conduct Tribunal in accordance with the
recommendations of the National Judicial Council.
IMPLEMENTATION OF TREATIES.
The constitution provides that no treaty between the federation and any other country shall
have the force of law except to the extent to which any such treaty has been enacted to law by
the national assembly (See Section 12(1) of the 1999 CFRN). The national assembly may
make laws for the federation or any part thereof with respects to matters not included in
matters included of exclusive list for the purpose of implementing a treaty.
A bill for the National Assembly passed in pursuant to the provision of subsection 2 of 12 of
the constitution shall not be presented to the president for assent and shall not be enacted
unless it is ratified by a majority of all the houses of assembly in the federation except from
executive agreement. We should note however not all agreements entered into by the
president with foreign powers are treaties that must be ratified by the national assembly in the
constitutional sense of it. The external will of the nation may be expressed through acts apart
from treaties and such act do not have to be ratified by the senate. The president may as the
sole organ of foreign relations enter into executive agreement that are binding obligation on
Nigeria. For example, the president through his appropriate ministers may enter into many
bilateral agreements with foreign nations that are not strictly regarded as treaties. Nigeria
entered into an arrangement with the Chinese government in time past for the modernization
of the Nigerian railways, Nigeria had entered into cultural arrangement with other nations for
the exchange of artists and such matters of interest will not require ratification by the senate
however, the treaty that created ECOWAS was ratified by the Sovereign authority of the
country. The African Charter on Human and Peoples Right was enacted into municipal law by
Act No. 2 of 1983.
THE PRESIDENT AS COMMANDER-IN-CHIEF.
The president as commander-in-chief possesses the powers to appoint service chiefs of the
armed forces of the federation. His authority is however limited by the Armed Forces Act
determines the grades to which appointment must be made and specify the qualification of
such appointment. The president also possesses the power to dismiss officers though in time
of peace the power may be exercised pursuant to a court marshal. The commander-in-chief
clause endows the president with the power of Supreme Commander however, the president
is to be advised by the National Defence Council on matters relating to the defence of the
sovereignty and territorial integrity of Nigeria. He will normally delegate actual commands to
the relevant military officer.
THE PRESIDENT AND DECLARATION OF WAR.
The president shall not declare a state of war between the federation and another country
except with the sanction and resolution of both houses of the national assembly in a joint
session and except of with the prior approval of the senate no member of the armed forces of
the federation shall be deployed on combat duty outside Nigeria. However, the president in
consultation with the national defence council may deploy members of the armed forces of
the federation on a limited combat duty outside Nigeria if he is satisfied that the National
Security is under imminent threat or danger provided that the president shall within seven
days of actual combat readiness seek the consent of the senate and the senate shall thereafter
give or refuse the consent within 14days.
THE POWER OF PARDON.
Section 175(1) of the 1999 constitution states that the president may grant any person
convicted of any offence created by an act of the National Assembly a pardon either free or
subject to some lawful condition. He can also grant to any person a respite for an indefinite or
specified period of the execution of any punishment imposed on that person for such an
offence.
The president can substitute a less form of punishment for any punishment imposed on that
person for such an offence or remit the whole or any part of any punishment imposed on that
person for such an offence or of any penalty or forfeiture otherwise due to the state on
account of such an offence.
The power of the president to create pardon under Section 175(1) of the 1999 CFRN shall be
exercised by him after due consultation with the council of state. Section 175(3) of the 199
CFRN provides that the president acting in accordance with advice of the Council of State
may exercise his powers under Section 175(1) of the 199 CFRN in relation with persons
concerned with offences against the Army, Naval or Air Force Law or convicted or sentenced
by a court martial i.e. those convicted by a court martial can be pardoned. General
Abdulsalami Abubakar former president of Nigeria pardoned General Olusegun Obasanjo
and those convicted by the Special Military Tribunal under the regime of General Sani
Abacha.
COMPOSITION OF THE COUNCIL OF STATE.
The members upon which the president can exercise pardon are as follows:
1. Chairman- President
2. Deputy Chairman- Vice President.
3. All former Chief Justices of Nigeria.
4. The president of the Senate
5. The speaker of the House of Representative.
6. All the governors of the state of the federation
7. Attorney-General of the Federation

WHAT IS THE MEANING OF PRESIDENTIAL PARDON?

Chief Justice Marshal of the United State of America set the tone for the legal nature of a
pardon in the case of United State v Wilson 1833 ‘a pardon is an act f grace proceeding
from the power entrusted with the execution of the laws which exempts the individual on
whom it is bestowed from the punishment which the law inflicts for a crime he has
committed. It is the private but official act of the executive delivered to the individual for
whose benefit it is intended and not communicated officially to the court. This is why
presidential pardon cannot be subject to litigation because of its discretionary nature also
pardon is a part of the constitutional scheme to be exercised for the public welfare it is also
called a matter of grace that need not be justified or defended within legal system. A
pardon is a deed to the validity of which, delivery is essential and delivery is not complete
without acceptance. It may then be rejected by the person to whom it is tendered or given
and if it is rejected, we have discovered no power in a court to force it upon him.’ In the
case of Budik v US Budik denied to testify before a grand jury on the ground that his
testimony might incriminate. He was offered a full and unconditional pardon but he rejected
it, he still refused to testify and his decision not to testify was upheld by the Supreme Court
of United State. McKenna of the Supreme Court held as follows ‘the grace of pardon may
only be a pretence involving circumstances of even greater disgrace than those from which it
purports to relief. Circumstances may be made to bring the innocence under the penalties of
the law. If so, brought escape by confession of guilt implied in the acceptance of a pardon
may be rejected’. In other words, the court refused to take judicial notice of the proffered
pardon even in the case of Armstrong v United State which held that President Andrew
Johnsons proclamation of amnesty could be judicially noticed by the courts.
WHAT THEN IS THE EFFECT OF PARDON?
The leading case on this in the United State is the case of Exparte Garland. In the above case
the congress of the United State had passed a statute prescribing that a person could be
permitted to practice in a federal court, he must swear an oath asserting that he has never
voluntarily done harm against the United State of America. In short that he had never aided
the confederacy during America civil war. Garland a lawyer who had been a confederate
sympathizer was unable to take the oath, he had however received from President Johnson a
full pardon for all offences committed by him arising from participation directly or impliedly
in the rebellion. A divided court speaking through Field J. said that the pardon overruled the
act of congress.
The inquiry arises as to the effect and the operation of a pardon and on this point all
authorities must concur. A pardon erases both the punishment prescribed for the offence and
the guilt of the offender and when the pardon is full, it releases the punishment and blurts out
the existence of the guilt so that in the eye of the law, the offender is as innocent as if he had
never committed the offence. If pardon is granted before conviction, it prevents any of the
penalties and disabilities consequent upon conviction from attaching thereto. If pardon is
granted after conviction, it removes the penalties and disabilities and restores him to all his
civil rights. It makes him as it were a new man and gives him a new credit and capacity.

INSTANCES OF PRESIDENTIAL PARDON IN NIGERIA.

In Nigeria, it is part of the Nigerian constitutional history for presidents and governor to
exercise their pardon powers. In the 1999 constitution it is provided in Section 175 and 212
of the 1999 CFRN for the president’s and governor’s prerogative of mercy. General Yakubu
Gowon pardoned Chief Obafemi Awolowo who applied for the pardon, Chief Obafemi
Awolowo was alleged to have attempted to overthrow the government of Sir Abubakar
Tafawa Balewa therefore he was sent to prison. In his application Chief Awolowo stated his
achievements, his contribution to the unity and progress of Nigeria, he also alluded to the
testimony of his good deeds even by his enemies, the letter from him to the then Head of
State were written from Calabar prison, he saw himself as a truly public-spirited person.
President Shehu Shagari as NPL member brought back from exile Chukwuemeka Ojukwu
and granted him pardon and he also released Mrs Helen Gomwelk and Captain Peter
Temlong from jail. General Ibrahim Gbadamosi Babangida pardoned Nduka Irabor and
Tunde Thompson after they were released from a Decree 4 inspired jail. General Abdulsalami
Abubakar pardoned General Olusegun Obasanjo, Major General Ladipo Diya, Shettima
Bulama, General Musa Yaradua and Major General Abdulkareem Adisa were all granted
pardon. President Olusegun Obasanjo granted pardon to Alhaji Salisu Ibraheem Buhari who
was alleged to have doctored his curriculum vitae with forged educational report and
certificate including NYSC certificate.
CHIEF OLUSEGUN FALAYE V CHIEF OLUSEGUN OBASANJO.
It should be recalled that Chief Olu Falaye of the APP and Chief Olusegun Obasanjo of the
PDP were the two candidates for the presidency of Nigeria in 1999. Obasanjo and others
were arrested during the regime of the tyrant General Sani Abacha for planning to overthrow
the government of the dictator through a coup d’etat he was convicted and sentenced to 25
years imprisonment which was later commuted to 15 years imprisonment. When General
Sani Abacha died in 1998, General Abdulsalami Abubakar took over has the Head of State he
later granted pardon to Chief Olusegun Obasanjo and the other convicts. Obasanjo later
joined the PDP as a politician and succeeded in getting the party’s primary election victory
and so he became the party’s presidential candidate. He contested the presidential election
with Chief Olu Falaye and won the election with over 18 million votes across the country, the
defeated APP candidate Chief Olu Falaye was not convinced of his defeat and so he filed an
election petition in the court of appeal as provided by law ⚖ asking the tribunal to declare
that Obasanjo had no capacity to contest cause he was an ex-convict, he argued that when
Chief Obafemi Awolowo who was similarly was convicted in 1962 for attempting to
overthrow the government was granted a pardon by the Head of State he was granted a full
pardon and so was able to contest the 1979 and 1983 presidential election, he also argued that
Chief Olusegun Obasanjo was only granted only a pardon and not a full pardon as was in the
case of Obafemi Awolowo therefore he said that Olusegun Obasanjo remains a convict as his
pardon was not full therefore h ad no capacity to contest for the Presidential Election,
the election tribunal minced no words in coming to the conclusion that Chief Olu Falaye
argument lacked substance. The tribunal said that a pardon without any qualification means
the same thing as a full pardon that it restores to Chief Obasanjo all his civil rights, it makes
him as it were a new man and gives him a new credit and capacity.
DECLARATION OF A STATE OF EMERGENCY.
WHAT IS A STATE OF EMERGENCY IF WE MAY ASK?
It is a declaration that the President of the federation is constitutionally empowered to make,
in situation of civil unrest. It is provided for under Section 305 of the 1999 CFRN. Under the
Nigerian constitution the president of Nigeria can declare a state of emergrncy in two major
ways:
 He can declare it on his own.
 At the request of a state governor.
If the president declares it on his own the National Assembly must approve same. The
approval must come from a resolution of 2/3 majority in both the senate and the house of
representatives. The timeline for this approval depends on whether the National Assembly is
in session. If in session, they must approve it within 2 days after it is published in the Federal
Gazette, if not in session, they have 10 days from the date of the declaration to approve of it.
In cases where the governor wants a state of emergency declared, he must first get the state
house of assembly to support the request with a 2/3 majority vote before the President can act
on it.
RIVERS STATE OF NIGERIA: A CASE STUDY.
On the 18th of March the president of the federal republic of Nigeria Bola Ahmed Tinubu
through a live television broadcast declared a state of emergency in Rivers State. The
president stated that he was doing this in response to the disturbing incidence in the state
which he went on to site as follows:
 The fact that the governor had demolished the state house of assembly in 2023 and
had failed to rebuild it till date leading to the ongoing strife between the executive and
the legislative arm in the state which is yet to be resolved.
 The president highlighted the Supreme Court order directing the Rivers State house of
assembly to immediately pass the Appropriation Bill i.e. the bill that authorises
government spending. According to the president the court order has been completely
ignored or disobeyed.
  The president stated his concerns regarding the recent vandalization of pipelines by
some militants in the state which according to him the governor had failed to take any
action to curtail.
Sequel to the declaration of state of emergency, the president declared the suspension of the
governor, the deputy-governor and members of the House of Assembly of the state for an
initial period of 6 months. He nominated Vice Admiral Ibokette Ibas Rtd. as an administrator
to take care of the affairs of Rivers State. The president stated that the administrator is not
empowered to make laws for the state but he may make regulations that will be considered
and approved by the Federal Executive Council and promulgated by the president for Rivers
State.
ON WHAT LEGAL GROUNDS DID THE PRESIDENT DECLARE A STATE OF
EMERGENCY IN RIVERS STATE?
Section 305(3) of the 1999 CFRN set out specific situation under which the president or in
some cases a governor can declare a state of emergency. This includes:
 Times of war.
 Natural disasters.
 Public danger.
 Breakdown of public order and safety requiring extraordinary measures.
Now looking closely at President Tinubu statement his main justification curtained around:
 A political crisis and power struggle between the Governor and the House of
Assembly.
 A failure of governance including the demolition and non-rebuilding of the House of
Assembly preventing the legislature from functioning.
 A supreme court judgement that declared or stated that there was effectively no
functioning government in Rivers State.
 Vandalism of pipelines and militant threat which the governor allegedly failed to
address.
 A security breakdown that posed a threat to the lives and economic assets (oil
infrastructure).
Giving this fact, the most likely ground which the president is relying on under Section
305(3) of the 1999 CFRN is the following clause Section 305(3)(c) of the 1999 CFRN
‘there is an actual breakdown of public order and public safety in the federation or in any
state to such an extent as to require extraordinary measure to restore peace and security.
Section 305(3)(c) of the 1999 CFRN is the most directly applicable clause as the president
repeatedly emphasized the breakdown of democratic governance, security threats, and the
failure of the state government to function effectively. All of the above fall under public order
and public safety requiring extraordinary measures.
WHAT HAPPENS IN A STATE OF EMERGENCY?
Although Nigeria has never had a state of emergency that affected the entire federation at the
same time, there have been instances where state of emergency was declared in specific
regions or states due to political crisis, security challenges or other emergencies and in those
instances, there was a suspension of normal governance.
PAST INSTANCES OF DECLARATION OF STATE OF EMERGENCY IN NIGERIA?
1. Plateau State (2004): On May 18, 2004 President Olusegun Obasanjo imposed a state of
emergency in Plateau State due to the escalating ethnoreligious violence between the
Muslims and Christians. Over 2000 people were killed in riots that started in year 2001.
The governor of the state at the time Joshua Dariye and the State house of assembly were
suspended and Major General Chris Ali Rtd. was appointed as administrator, the
administrator was in office for 6 months after which the governance was restored and
Governor Joshua Dariye was reinstated.
2. Ekiti State (2006): A political crisis emerged in Ekiti state when Governor Ayo Fayose
was impeached under controversial circumstances. The impeachment led to wide spread
unrest and a breakdown of governance. President Obasanjo imposed emergency rule and
appointed Brigadier General Adetunji Olurin RTD. as the administrator who was in
office for 6 months until Tope Ademiluyi the speaker of the Ekiti State House of
Assembly was appointed as acting governor until a new governor was elected
3. Some local government in Borno and Plateau State (2011): On December 31, 2011,
President Goodluck Jonathan imposed emergency rule in some local government areas of
Bornu and Plateau State, this was in response to early Boko Haram attacks and
communal conflicts.
4. Bornu, Yobe and Adamawa State (2013-2014): President Goodluck Jonathan declared
emergency rule in Bornu, Yobe and Adamawa State due to the Boko Haram insurgency.
This occurred after the terrorist group had launched attacks, bombing and mass
abductions including the Chibok School Girls etc. The military was given sweeping
powers and security operations were intensified.
DOES THE CONSITUTION GRANT THE PRESIDENT THE POWER TO SUSPEND THE
GOVERNOR, DEPUTY GOVERNOR AND LAW MAKERS?
The short answer is NO. Legally speaking there is no clear constitutional authority for the
president to suspend elected state officials even during a state of emergency he has know
right. In fact, the Governor and Deputy Governor can only me removed from office through:
 Impeachment by the State House of Assembly (Section 188 of the CFRN)
 Resignation, Death or cease to be qualified under Section 180 of the 1999 CFRN.
Similarly, members of the stat of House of assembly can only be removed in accordance with
the constitution. There is no provision for suspension by the president.
The clear consensus from the legal community has been that this act of removing Governor
and members of the State House of Assembly is unconstitutional. The Nigerian Bar
Association is one of the prominent voices stating this opinion that it is unconstitutional.
While security and governance concerns may justify federal intervention, the suspension of
elected officials raises serious constitutional issues. Many legal experts argue that the
president’s powers during a state of emergency must still respect the constitution which does
not grant the power to suspend elected officials.
OTHER POWERS OF THE PRESIDENT.
Apart from the powers enumerated above there are other powers granted to him under the
constitution. For example, Section 32 of the 1999 CFRN gives the power to make regulation
in relation to citizenship matters under Chapter 3 of the 1999 CFRN with full
residential right to spouses of Nigerians who do not wish to become Nigerians. Such
regulations must be laid before the National Assembly for their information.
POWER OVER PUBLIC REVENUE.
Even though the National Assembly has the sole authority to determine the manner in which
revenue is to be allocated among the various levels of government, the president as the head
of government has a crucial role to play in the collection, accumulation and declaration of
such revenue in accordance with constitutional provisions. He is also responsible for
preparing a budget for the expenditure of the amount standing to the tune of the federation
and lays it before the legislature for its approval. Section 162(1) of the 1999 CFRN provides
for the opening of a federation account into which all revenues collected by the federal
government must be paid except the personal income tax of the personnel of the armed
forces, police, ministry of external affairs and residents of the FCT, Abuja. By virtue of this
provision, the government of the federation becomes a trustee and it is the duty of the trustee
to render account to the beneficiaries of the trust if and when called upon to do so and it is not
the function of the Federation Account Allocation Committee to collect revenue for the
federation account.
The president upon the receipt of the advise from the Revenue Mobilization Allocation and
Fiscal Commission, must table before the National Assembly proposals for revenue allocation
from the federation account and in determining the formula the National Assembly shall take
in to account the allocation principle especially those of population, equality of state, internal
revenue generation, land mass, terrain, as well as population density provided that the
principle of derivation is constantly reflected in any approved formula as being not less than
13% of the revenue accruing to the federation account directly from any natural resources.
Any amount credited into the federation account must be distribute among the federal and
state government and the local government council on such terms and in such manner as may
be prescribed by the National Assembly. In AG Federation v AG Abia State & ORS the
court stated that where there is no approved system of revenue allocation by the National
Assembly in force, pursuant to the provision of the 1999 CFRN, the formula in existence
immediately before the coming into force of the constitution is applicable as an existing law
by virtue of Section 313 of the 1999 CFRN.

ATTORNEY-GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE.

The above person is a member of the executive council. The powers of the attorney-general
of the federation and that of the state with respect to public prosecution are derived from
Section 174 and 211 of the 1999 CFRN. Section 174(1) of the 1999 CFRN provides that
the attorney-general to:
 Institute and undertake criminal proceedings against any persons before any court of
law in Nigeria other than a court martial for any offence created by an act of the
National Assembly. See also Section 211 of the 1999 CFRN for the states, see also
AG Ondo State v AG Federation (2002) FWLR Pt 3 1972 @ 2073.
  Take over and continue a criminal proceeding that may have been instituted by any
person or any authority in Nigeria.
 Discontinue at any stage before judgement is delivered any proceeding commenced
by any person or authority.
The powers of the AG Federation are exercisable only in respect of federal offence while the
powers of AG State are exercisable as a general rule, only in resoect of state offences see,
Anyebe v The State (1986) SC87- Anyebe was a High Court Judge in Benue State at that
time. The offence for which he was charged has to do with his locus standi to handle a
particular case which was a federal matter under the Fire Arms Act hence he had no
competence.
POWER TO INSTITUTE PROCEEDINGS.
Section 174(1)(a) and Section 211(1)(a) of the 1999 CFRN. By the above provision the
power of the attorney-general is absolute i.e. nobody can challenge it. The discretion to
prosecute, who to prosecute and where to commence criminal proceedings is the Attorney-
General’s and his alone. He has no obligation to give reasons for exercising his discretion in a
particular way see Bagudu v FRN (2004) NWLR (853) 183 see also AG Ondo v AG
Federation (2002) FWLR Pt. 3 1972 see also The State v Okpegboro (1983) 2 SCR 291
THE POWER TO TAKEOVER.
Section 174(1)(b) and 211(1)(b) of the 1999 CFRN. The power of the attorney general by
those sections to take over proceedings at any stage of the proceeding is also absolute. He
requires no application to take over and transfer one court to another court without
application see Amaefule v The State, see also The state v Ilori, Edet v The State.
POWER TO DISCONTINUE PROCEEDINGS.
This power is contained in Section 174(c) of the 1999 CFRN, it is also an absolute power.
This power is called nolle prosequi. However, Section 174 of the 1999 CFRN did not make
provision as to the manner of the exercise of their power. Section 73(1) of the Criminal
Procedure Act provided for the manner of which the attorney general can exercise this
power. By the above provision th Attorney-General may exercise these powers either
personally by appearing in court and notifying the court of the discontinuance or he may do
this by a written authority through any officer in his department. The nature of the power of
nolle prosequi is such that once it is exercised no one can go behind it and not even the court
can inquire into the exercise see The State v Ilori where the supreme court held further that
the ‘words shall have regard to the public interest’ used in Section 191(3) of the 1979 CFRN
but now Section 211 of the 1999 CFRN are not mandatory but merely declares those power.
It is therefore clear that in this as in the other earlier powers discussed that the AG is an
authority onto himself and the only check on me for now si adverse public criticism and
possible removal by his appointor.
Where the court emphasize where the powers of the AG with respect to commencement of
proceedings and or takeover may be exercised where there is no AG in office the power of
nolle prosequi cannot be so exercised. See also the case of AG Kaduna State v Hassan
(1985) 2 NWLR Pt 8 @483

THE POLICE.
The power of the police to prosecute is in Section 23 of the Police Act and that power is
limited only by Section 174 and 211 of the 1999 CFRN. For purposes of clarity Section 23
of the Police Act Cap 319 LFN 1990 now Cap E19 LFN 2004 provides that ‘subject to the
provision of Section 160 and 191 of the 1999 CFRN now Section 174 and 211 of the 1999
CFRN which relates to the power of the AGF and AGS to institute and undertake, takeover
and continue or discontinue criminal proceedings against any person before any court of law
in Nigeria’, any police officer may conduct in person all prosecution before any court
whether or not the information or complaint is laid in his name i.e. apart from the AG no
other person can challenge the power of the police in this regard. The above provision of the
law is quite clear and if it is given its literary interpretation as required then nothing stops the
police from prosecuting in any court except of course the AG under Section 174(1) of the
1999 CFRN, see the case of Olusemo v Commissioner of Police 1988 1 NWLR Pt 575
@547, FRN v Osahon- in this case it was Section 56(1) of the Federal High Court Act that
was in issue. And the question was whether the absence of the police in the said section
among those who could prosecute on behalf of the federal government does not exclude the
police from prosecuting in the Federal High Court. The said section specifically mentions the
law officer, a state counsel, or any legal practitioner authorized by the AG. In an ultimate
appeal to the Supreme Court per Belgore JSC (as he then was) that by the combined
provision of Section 23 of the Police Act, Section 174(1) of the 1999 CFRN as well as
Section 56(1) of the Federal High Court Act. The police can prosecute in the Federal High
Court. The man concluded that although it is desirable for such police officer to be legally
qualified i.e. to be a legal practitioner it is not compulsory that such officers is so qualified.

CREATION OF STATE
When the proposal to alter the constitution is in respect of creation of a new state the
legislature cannot effect same alone like the situation in Switzerland. The request for the
creation of a new state must have 2/3 majority vote of members representing the area
demanding the creation of new state in the National Assembly, House of Assembly in respect
of that area demanding the creation and the local government council in respect of that area.
This request must be formally delivered to the National Assembly, thereafter the proposal for
the creation of the new state must be submitted to the people in a referendum. If it is
supported by at least 2/3 majority vote of the people of the area where the demand for the
creation of the new state originated, the result of the referendum is then approved by a simple
majority of all state of the federation supported by a simple majority of members of the
Houses of Assembly and the proposal is approved by a resolution passed by 2/3 majority of
members of each house of the National Assembly.
BOUNDARY ADJUSTMENT.
When a proposal is in respect of the boundary adjustment of any existing state there is no
requirement for a referendum. However, the boundary adjustment must be supported by 2/3
majority vote members representing the area demanding such adjustment and the area
affected by the boundary adjustment in the Nation Assembly, Houses of Assembly in respect
of the area and the local government council. The request must be delivered to the National
Assembly, if it is approved by a simple majority of members of each house of the national
assembly and simple majority of the members of the house of assembly in respect of the area
concerned the adjustment become effective.
CREATION OF NEW LOCAL GOVERNMENT.
The system of local government under the 1999 CFRN by democratically elected local
government council has been guaranteed but in contradistinction to the system of creation of
local government council under the military by the federal government, the government of
every state shall ensure their existence under a law which provides for the establishment for
the structure, composition and functions of such council.
The person authorized by law to prescribe the area over which a local government council
may exercise such authority shall define such areas as clearly and ensure to the extent to
which it may be reasonably justifiable that in defining such area, regard is paid to common
interest of the community in the area; traditional association of the community of the
community and administrative convenience. The constitution further provides that it shall be
the duty of a local government council within the state to participate in economic planning
and development of the area that is constituted into a local government council and to this
end an economic planning board shall be established by law enacted by the House of
Assembly of a state. Both the federal government and the government of each state are to
make statutory allocation of public revenue to local government council