M. A.

ARAROMI

THE LEGISLATURE

Nigeria has experienced a chequered history in the system of democratic governance. Prior
to independence, Nigeria operated Parliamentary system of government and immediately
upon the attainment of independence in 1960 Nigeria, still tied to the apron string of the
British colonialist, adopted the same parliamentary system for the administration of the
country. When Nigeria became a republic in 1963 the republican Constitution also provided
for a parliamentary system. However, the 1979 Constitution provided for the presidential
system of government, which is also replicated in the Nigerian Constitution of 1999. Under
the federalism the National Assembly is conferred with law making power at the federal
level, whereas at the state level, a House of Assembly of the state exercises such function.

The Legislature is one of the three arms of government namely: the Legislature, the
Executive and the Judiciary. In presidential system governmental powers are shared
between these three arms particularly for one arm to serve as a check on the others. This is
to prevent excessive use of powers which may jeopardize the interests of the nation and the
citizens. In a nation where a person wields so much power there is likelihood that there
would be arbitrariness, tyranny, oppression which could lead to a state of discomfort and
therefore a state of anarchy. The nature of powers exercised by the legislature depends on
the type of government in reference. In a parliamentary system of government the
legislature and the executive are fused, which means that the right of the executive to
govern emanates from the parliament from which the members of the executive are
appointed. This means there is no clear cut separation of powers - though the two arms
perform different functions. According to Nwabueze:

“...it is the majority in the legislature that makes and unmakes the executive. The
head of government has to be a member and the leader of the majority in the
legislature in order to be chosen. The other ministers are also required to be
members of the legislature. As members and leaders of the majority of the
legislature, the Prime Minister and the other Ministers are enabled by the authority
of their ministerial offices, their leadership of the majority in the house and of the
ruling party to control the legislature and the legislative process, which then results
in a partial fusion of legislative and executive powers in the same person.”

On the other hand, in the presidential system of government the members of the executive
are elected independently of the legislature. Nigeria operated parliamentary system of
government by its 1960 and 1963 constitutions prior to the military take-over of
government in early 1966. However, the 1979 and the 1999 Constitutions showed proof of a
presidential system of government where a clear-cut separation of powers between the
legislature, the executive and the judiciary was in the 1979 Constitution and it is still being
experienced In Nigeria under the 1999 Constitution. Under the 1999 Nigerian Constitution
sections 4, 5 and 6 provide for the legislative powers, the executive powers and the judicial
powers, respectively.

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A legislative power in any true federation usually involves the division of governmental
powers between the central government and the federating units. It implies political
pluralism and decentralised administration as well as decentralised policy decisions. In other
words, it involves division of legislative powers between the centre on the one hand and the
constituent States of the federation on the other hand. Section 4 of the Nigerian 1999
Constitution provides that the legislative powers of the Federal Republic of Nigeria shall be
vested in a National Assembly for the Federation which shall consist of a Senate and a House
of Representatives. See also section 47 of the 1999 Constitution. It is apt to observe from
section 4(1) of 1999 Constitution that Nigeria operates a bicameral legislative system at the
national level, whereas a unicameral system of government is adopted at the state level by
the provision of section 4(6) of the same Constitution. This means that the legislative
powers at the national level are shared between the two legislative houses – which are the
Senate and the House of Representatives, but at the state level there is only one legislative
house to exercise the state legislative powers. Note that the term “legislative power” can
be defined as the law making powers of a legislative body, whose functions include the
power to make, alter, amend and repeal laws. **The primary function of making laws is
reposed in the Legislature though it may delegate rule making and regulatory powers to
ministries or departments in the Executive branch. See A.G. Bendel State v. A.G. Federation
[1982] 3 NCLR 1, Balogun v. A.G. Lagos State (1981) 2 NCLR 509 at 648. It should be noted
that the Legislature can by the provisions of section 4 of the Constitution not only exercise
powers specifically conferred on it but, like the United States of America, also impliedly
includes all means of exercising the powers to the best advantage. See the cases of Olajire
v. Superintendent-General of Local Police Force (1961) All NLR 826; and Lawson v. Lawson
(1984) 5 NCLR. **Also by virtue of Item 68 of the Exclusive Legislative List the National
Assembly can exercise legislative powers on any matter incidental or supplementary to any
matter mentioned elsewhere in the List.

The National Assembly/a State House of Assembly: Composition, Election and

Qualification

The Senate of the National Assembly, which is the upper House, comprises of three Senators
from each State and one from the Federal Capital Territory, Abuja, while the House of
Representative, which is the lower House, consists of three hundred and sixty members
representing constituencies of nearly equal population as far as practicable, provided that
no constituency shall fall within more than one State. See sections 48 and 49 of the 1999
Constitution. See also sections 71 and 72 of the Constitution. The Senate is headed by a
Senate President and a Deputy Senate President, while the House of Representatives is
headed by a Speaker and a Deputy Speaker, who shall be elected by the members among
themselves.

A person shall be eligible to be elected as a member of the Senate and House of

Representatives if he is a citizen of Nigeria and has attained the age of 35 years in case of

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the Senate by virtue of section 65 of the 1999 COnstitution and by the provision of the Not
Too Young To Run Act 2018, amending section 65 of the 1999 Constitution the prescribed
age for an aspirant to the House of Representatives is now 25 years. Such persons must
either be a member of a political party or an independent candidate by virtue of the
enacted Not Too Young To Run Act, and must be educated up to at least School Certificate
level or its equivalent. See section 65 of the Constitution. By section 318 of the Constitution
“School Certificate or its equivalent” means -

(a) a Secondary School Certificate or its equivalent, or Grade II Teacher’s Certificate, the City
and Guilds Certificate; or

(b) education up to Secondary School Certificate level; or

(c) Primary Six School Leaving Certificate or its equivalent and -

(i) service in the public or private sector in the Federation in any capacity acceptable
to the Independent National Electoral Commission for a minimum of ten years, and

(ii) attendance at courses and training in such institutions as may be acceptable to

the Independent National Electoral Commission for periods totalling up to a
minimum of one year, and

(iii) the ability to read, write, understand and communicate in the English language
to the satisfaction of the Independent National Electoral Commission, and

(d) any other qualification acceptable by the Independent National Electoral Commission.

Membership of the National Assembly shall be by direct election; and every citizen of
Nigeria, who has attained the age of 18 years, residing therein shall be eligible to be
registered as a voter for the purpose of that election. See section 77 of the Constitution.

It is required under section 63 of the Constitution that each House of the National Assembly
shall sit for a period of not less than 181 days in a year to conduct legislative business. The
live span of the National Assembly is four years commencing from the date of the first
sitting after which there is another election following its dissolution. If, however, the nation
is at war in which the territory of Nigeria is physically involved and the President considers
that it is not practicable to conduct elections the National Assembly may by resolution
extend its life span from time to time but each extension must not be beyond 6 months. By
the provision of section 64(3) the President shall have power to issue a proclamation for the
holding of the first session of the National Assembly immediately after he is sworn in, or a
proclamation for its dissolution.

**It is important to point out here that the features of the legislature at the federal level,
that is the National Assembly, and those of the State level, which is the House of Assembly,
are almost the same but for some slight discrepancies. For instance, the age of eligibility for

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membership of a House of Assembly of a State is 25 years as provided by the Not Too Young
To Run Act amending section 106 of the 1999 Constitution, whereas other conditions as to
qualification are the same with the National Assembly. A Speaker and Deputy Speaker of
the House of Assembly head the House and are elected by the members of the House of
Assembly. It should be noted that similar to the National Assembly, the life span of a State
House of Assembly is four years commencing from the date of the first sitting of the House.
**However, if the Federation is at war in which its physical territory is involved and the
President considers that it is not practicable to hold elections, it is the National Assembly
that has the power to extend the stay or the life span of a State House of Assembly and not
the House of Assembly itself; which may be done from time to time for a period not
exceeding 6 months each time. See section 105 of the Constitution. The Governor of a State
has been conferred with power by virtue of section 105(3) of the Constitution to issue a
proclamation for the holding of the first session of the House of Assembly of that State
immediately after his being sworn in, or a proclamation for its dissolution. **As regards the
composition of the House of Assembly of a State it is provided under section 91 of the
Constitution that the House shall consist of three or four times the number of seats which
that State has in the House of Representatives divided in a way to reflect, as far as possible,
nearly equal population. See also sections 112 and 113 of the 1999 Constitution. As a
proviso to section 91, a House of Assembly of a State shall consist of not less than 24 and
not more than 40 members. The qualification of membership of a House of Assembly of a
State is the same as for the House of Representatives of the National Assembly. See section
106 of the Constitution.

Disqualification

The conditions for disqualifications from membership of the National Assembly and a State
House of Assembly under the 1999 Constitution are the same; therefore they shall be
treated together by inference. See sections 66 and 107 of the Constitution.

A person shall be disqualified from being a member of the National Assembly or a House of
Assembly of a State in Nigeria on certain prescribed grounds by the Constitution. These will
be treated below.

A person will be disqualified for election into the Senate or the House of Representatives or
House of Assembly of a State:

a. Where a person not being a citizen of Nigeria by birth has voluntarily acquired a
citizenship of another country of which he is not a citizen by birth (see section 28 of
the Constitution) or has made a declaration of allegiance to a country other than
Nigeria;
b. where such a person is adjudged to be a lunatic or otherwise declared to be of
unsound mind under any law in force in any part of Nigeria;

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c. where a death sentence has been imposed on him or a sentence of imprisonment or

fine for an offence involving dishonesty or fraud or any other offence imposed on
him by any competent court of law or tribunal in Nigeria or substituted by a
competent authority for any other sentence imposed on him by such a court. Note
that if appeal is pending the provision of this paragraph will not apply until such
appeal is determined;
d. if within a period not less than 10 years before the election to the legislative House
he has been convicted and sentenced for an offence involving dishonesty or he has
been found guilty of the Code of Conduct (contained in Part I of the Fifth Schedule to
the 1999 Constitution. See also Part II of the Schedule);
e. if he is an undischarged bankrupt under any law in force in Nigeria;
f. where he is a person employed in the public service of the Federation or of any State
and has not resigned, withdrawn or retired from such employment 30 days before
the date of election;
g. if he is a member of a secret society. Section 318 of the Constitution defined “Secret
Society” to include any society, association, group or body of persons (whether
registered or not) -
(a) that uses secret signs, oaths, rites or symbols and which is formed to promote a
cause, the purpose or part of the purpose of which is to foster the interest of its
members and to aid one another under any circumstances without due regard to
merit, fair play or justice to the detriment of the legitimate interest of those who are
not members;
(b) the membership of which is incompatible with the function or dignity of any
public office under this Constitution and whose members are sworn to observe
oaths of secrecy; or
(c) the activities of which are not known to the public at large, the names of whose
members are kept secret and whose meetings and other activities are held in secret;

i. where he has presented a forged certificate to the Independence National Electoral

Commission (INEC).

**Where a person is adjudged a lunatic, declared to be of unsound mind, sentenced to

death or imprisonment, or adjudged or declared bankrupt under section 66(1)(b)(c) and (d)
a pending appeal against such decisions forestalls the operation of section 66(1) until its
final determination, it lapses or abandoned.

MODE OF EXERCISING LEGISLATIVE BUSINESS

At the sitting of the National Assembly, in the case of the Senate, the President of the
Senate shall preside and in his absence the Deputy Senate President shall preside. In the
case of the House of Representatives the Speaker presides and in his absence the Deputy
Speaker will preside. At the joint meeting of the two Houses the Senate President presides,
and in his absence the Speaker of the House of Representatives presides. In the absence of

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these two people, the Deputy Senate President presides, and where he himself is absent the
Deputy Speaker of the House of Representatives presides. In the absence of all these four
people a person elected by the joint sitting shall preside – who can be from either of the
Houses. See section 53 of the Constitution. In case of the sitting of the House of Assembly
of a State, the Speaker of the House presides and in his absence the Deputy Speaker
presides. Where the two are absent, the members of the House may elect one of them to
preside. See section 95 of the Constitution.

The quorum of the Senate or the House of Representatives is one-third of all the members
of the concerned legislative House. In a joint meeting of the two Houses of the National
Assembly, the quorum shall be one-third of all the members of both Houses. For a House of
Assembly of a State, the quorum is also one-third of all the members of the House.

The language by which the National Assembly conducts its business is English. Hausa, Ibo
and Yoruba can also be used to conduct such business if adequate arrangement has been
made. For a State House of Assembly, the House business shall be conducted in English, but
the House may also by a resolution adopt one or more other languages spoken in the State.

As provided in section 56 of the Constitution any matter proposed for decision in the Senate
or the House of Representative shall be determined by the required majority (simple
majority or two-third or four-fifth) of the members present and voting, and the person
presiding, who ordinarily does not have a voting right, shall cast a vote whenever there is
equality of votes. Similar conditions are applicable to decision making in a State House of
Assembly under section 98 of the Constitution. Except as otherwise provided by the
Constitution, the required majority for the purpose of determining any question by the
Senate or the House of Representatives of the National Assembly or a State House of
Assembly is a simple majority.

Member of any of the Legislative Houses of the National Assembly and that of a State House
of Assembly who has any direct pecuniary interest in any matter coming before the House
for deliberation must declare such, and the House may by resolution decide whether or not
he participate in its deliberations or vote on such matter. But such a member may not
declare such interest if he chooses to abstain in the deliberation or voting on such matter.
See sections 56 and 98 of the Constitution. The requirement for declaration of interest is
similar to what obtains under the British Parliamentary practice, even though such interest
must be immediate and personal and not of a general or remote character.

LOSS OF SEAT IN THE LEGISLATIVE HOUSES

See generally sections 68 and 109 of the Constitution. A member of the Senate or the House
of Representatives or a State House of Assembly shall vacate his seat in the House of which
he is a member if-
(a) he becomes a member of another legislative house.

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(b) any other circumstances arise that, if he were not a member of the Senate or the House
of Representatives or a State House of Assembly, would cause him to be disqualified for
election as a member;
(c) he ceases to be a citizen of Nigeria;
(d) he becomes President, Vice-President, Governor, Deputy Governor or a Minister of the
Government of the Federation or a Commissioner of the Government of a State or a Special
Adviser.
(e) save as otherwise prescribed by this Constitution, he becomes a member of a
commission or other body established by this Constitution or by any other law.
(f) without just cause he is absent from meetings of the House of which he is a member for a
period amounting in the aggregate to more than one-third of the total number of days
during which the House meets in any one year (Note that sections 68(3) and 109(3) of the
Constitution provide that a member of the Senate or the House of Representatives or a
House of Assembly of State shall be deemed to be absent without just cause from a meeting
of the House of which he is a member, unless the person presiding certifies in writing that
the absence of the member from the meeting was for a just cause;
(g) being a person whose election to the House was sponsored by a political party, he
becomes a member of another political party before the expiration of the period for which
that House was elected;
Provided that his membership of the latter political party is not as a result of a division in
the political party of which he was previously a member or of a merger of two or more
political parties or factions by one of which he was previously sponsored; or
(h) the President of the Senate or, as the case may be, the Speaker of the House of
Representatives, or Speaker of the State House of Assembly receives a certificate under the
hand of the Chairman of the Independent National Electoral Commission stating that the
provisions of section 69 or section 110, as the case may be, of the Constitution have been
complied with in respect of the recall of that member.
SALARIES AND REMUNERATIONS

The salary and other allowances of a member of the Senate or House of Representatives or
a State House of Assembly shall be received as the Revenue Mobilisation Allocation and
Fiscal Commission may determine. See section 70 and 111 of the Constitution.

LEGISLATIVE POWERS

1. Power to make law

The primary responsibility of the legislature is to make law. It is provided under section 4(2)
of the 1999 Nigerian Constitution that the National Assembly shall have power to make laws
for the peace, order and good government of the Federation or any part thereof with

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respect to any matter included in the Exclusive Legislative List set out in Part I of the Second
Schedule to the Constitution. The exercise of this power shall, except as otherwise provided
by the Constitution, be exercised to the exclusion of the Houses of Assembly of the States
See section 4(3) of the 1999 Constitution. 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 any matter in the Concurrent Legislative List set out in the Second
Schedule to the extent so prescribed; and any matter with respect to which it is empowered
to make laws in accordance with the provisions of the Constitution (see section 4(4) of the
1999 Constitution). The Concurrent Legislative List requires both the National Assembly and
the States’ Houses of Assembly to legislate on the matters contain therein. In doing this, 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 by the National Assembly shall prevail, and that
other law made the State House of Assembly shall to the extent of the inconsistency be void
(section 4(5) of the 1999 Constitution). To test the application of section 4(5) of the
Constitution Item 11 of the Concurrent Legislative List Part II, Second Schedule of the 1999
Constitution provides that “The National Assembly may make laws for the Federation with
respect to the registration of voters and the procedure regulating elections to local
government council,” whereas Item 12 of the same Part II, Second Schedule provides that
“Nothing in paragraph 11 hereof shall preclude a House of Assembly from making laws with
respect to election to a local government council in addition to but not inconsistent with any
law made by the National Assembly.” In interpreting these provisions the Supreme Court
held inter alia in the case of Attorney General of Abia State and Ors v. Attorney General of
the Federation [2002] 17 WRN 1 at 55-65, while determining the appropriate legislative
body that had power to create or extend the tenure of the Local Government Councils in the
various states, that the National Assembly had no power whatsoever under any provision of
the Constitution to increase or alter the tenure of the elected officers of the Local
Government Councils. The Supreme Court further held that only the House of Assembly of a
state had such power in view of the provisions of section 7(1) of the Constitution and Item
12 of the Concurrent Legislative List in Part II of the Second Schedule to the Constitution.

The legislative power of a State is vested in the House of Assembly of that State and it shall
have power to make laws for the peace, order and good government of the State or any
part thereof with respect to any matter not included in the Exclusive Legislative List set out
in Part I of the Second Schedule to the 1999 Constitution. The House of Assembly of the
State shall however have power to make law for peace, order and good government of the
State or any part thereof with respect to any matter included in the Concurrent Legislative
List of the Constitution to the extent prescribed therein, and in so far such law is not
inconsistent with the laws validly made by the National Assembly; and any other matter
with respect to which it is empowered to make laws in accordance with the provisions of
this Constitution.

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The Legislature shall not exercise its powers to make laws to exclude or oust the jurisdiction
of a court of law or of a judicial tribunal established by law; and except as otherwise
provided by the 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. See section 4(8) of the 1999 Constitution. Further by the
provision of section 4(9) of the Constitution 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.

Law making process of the Legislature

The primary function of the legislature is to make laws. Section 58 of the 1999 Constitution
provides for the power of the National Assembly to make laws which shall be exercised by
bills passed by both the Senate and the House of Representatives and, except as otherwise
provided in subsection (5) of this section, assented to by the President. Such a bill can
originate from either the Senate or the House of Representatives and shall not become law
unless it has been passed and assented to, except as otherwise provided by the
Constitution. Once the bill is passed in the House where it originates it shall be sent to the
other House where it shall also be passed after tying the loose ends in agreement with the
originating House after which it shall be presented to the President for assent. Where the a
bill so passed is presented to the President for assent he shall within 30 days thereof signify
that he assents or that he withholds assent. Where the President withholds his assent and
the bill is again passed by each House by two-third majority, the bill shall become law and
the assent of the President shall not be required. See section 58(5) of the Constitution. The
National Assembly cannot exercise discretion as to whether or not to follow the laid-down
procedure in the Constitution for passing a bill for the purpose of law making. In the case of
Attorney General Bendel State v. Attorney General of the Federation (1981) 10 SC 1;
(1982) 3 NCLR 1, after the disagreement between both Houses of the National Assembly
with regards to the passage of an appropriation bill was resolved by a Joint Finance
Committee of the National Assembly, it was passed straight to the President for assent,
without taking it back to the Houses. The court stated that:

“Until the bill goes back to the two Houses and passed in the form resolved by the
Committee or at least passed by the House in whose favour the differences have not
been resolved, it is not yet law.... A legislature which operates a federal written
constitution in which the exercise of legislative power and its limits are clearly set
out has no power to ignore the conditions of law making that are imposed by that
constitution which itself regulates its power to make law.”

Similarly, the power of a House of Assembly of a state to make laws shall be exercised by
bills passed by the House and, except otherwise provided by the Constitution, assented to
by the Governor. See section 100 of the Constitution. Where a bill is passed by the House of
Assembly, it shall be presented to the Governor for assent; and where the bill is so

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presented the Governor shall within 30 days of its presentation signify that he assents or
withholds assent. Where the Governor withholds assent and the bill is again passed by two-
third majority in the House the bill shall become law and the assent of the Governor will no
longer be required. Section 100(5).

Section 59 of the Constitution deals with the federal legislative power with respect to
passage of money bills by the National Assembly. By provision of section 59(1) money bills
means an appropriation bill or a supplementary appropriation bill including any other bill for
the payment, issue or withdrawal from the Consolidated Revenue Fund or any other public
fund of the Federation of any money charged thereon or any alteration in the amount of
such a payment, issue or withdrawal; and bill for the imposition of or increase in any tax,
duty of fee or any reduction, withdrawal or cancellation thereof. The Legislature has to
approve government or public spending by passing of the annual and supplementary
budgets to finance the programme and activities of government. The passing of annual and
supplementary budget is a function of the Legislature, as public funds cannot be spent
without approval by the Legislature. However, budget proposals for the spending of public
money come from the Executive, which usually accommodates inputs from the Legislature.
Section 81 of the Constitution provides that the President shall cause to be prepared and
laid before each House of the National Assembly at any time in each financial year estimates
of revenues and expenditure of the Federation for the next following financial year. The
heads of the expenditure contained in the estimates shall included in a bill to be known as
Appropriation Bill, providing for the issue/withdrawal from the Consolidated Revenue Fund
of the sums necessary to meet that expenditure and appropriation of those sums for the
purposes specified therein. Furthermore, section 81(4) provides that if in respect of any
financial year it is found that the amount appropriated by the Appropriation Act for any
purpose is insufficient; or a need has arisen for expenditure for a purpose for which no
amount has been appropriated by the Act a supplementary estimate showing the sums
required shall be laid before each House of the National Assembly and the heads of any
such expenditure shall be included in a Supplementary Appropriation Bill.

**Where a bill to which section 59 of the Constitution applies is passed by one of the
Houses of the National Assembly but is not passed by the other House within a period of
two months from the commencement of a financial year, the President of the Senate shall
within 14 days thereafter arrange for and convene a meeting of the joint finance committee
of the National Assembly (see section 62(3)) to examine the bill with a view to resolving the
differences between the two Houses. If this approach fails to resolve such differences, the
bill shall be presented at a joint meeting of the two Houses of the National Assembly and if
passed (by a simple majority) shall be presented to the President for assent. Where the
President within 30 days after the presentation of the bill to him fails to signify his assent or
where he withholds his assent, then the bill shall again be presented to the National
Assembly sitting at a joint meeting, and if passed by two-third majority of members of both

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Houses at such joint meeting, the bill shall become law and the assent of the President shall
not be required.
2. Power to regulate its procedure
Note that apart from the mandatory procedures laid down for the business of the
Legislative Houses in the Constitution, the Senate, the House of Representatives and a State
House of Assembly each has power to regulate its own procedure, including the procedure
for summoning and recess of the House. See sections 60 and 101 of the Constitution. It
should be noted that the court cannot interfere with or make order concerning such
procedure. For instance, though the 1999 Constitution does not expressly provide for
immunity from legal proceeding for members of any legislative house, however, by virtue
section 3 of the Legislative Houses (Powers and Privileges) Act, L.F.N. 2004 no civil or
criminal action may be commenced against any person who is a member of legislative house
in “respect of words spoken before that house or committee” or with regard to words
“written in a report to that house or its committee or in any petition, bill, resolution, motion
or question brought or introduced by him therein. See the case of Okwu v. Dr. Wayas
(1981) 2 NCLR 522. It was pointed out by the court in the case of Uttah v. House of
Assembly of Cross River State (1985) 6 NCLR 761 at 765 that “What is said or done within
the walls of parliament cannot be inquired into by a court of law. The jurisdiction of the
House over its own members and their right to impose discipline within their walls is
absolute and exclusive.”

In Edwin Ume-Ezeoke v. Alhaji Isa Aliyu Makarfi (1982) 3 NCLR 663 the Speaker of the
House of Representatives read a letter from the Chairman of the plaintiff’s party, on whose
platform he was elected into the House, asking that he be suspended from membership of
the House committees which he got as a result of his membership of the party having been
earlier suspended by the Party for anti-party activities. Before any action was taken in the
House, the plaintiff sued the Speaker, and asked for a declaration that the announcement of
the message was unconstitutional, and that the Speaker had no power to remove him from
membership of the House committees understanding order of the House. The Court of
Appeal held that the court has no jurisdiction to question any matter or procedure, which
tends to only to regulate the affairs of any of the Legislative Houses. In Akinwolemiwa v.
Ondo State House of Assembly (1985) 6 NCLR 580 at 585-586, the court noted that the
above case only limited the right of intervention by the courts in relation to procedural
matters, and that the courts will intervene:

a) where the Legislature has failed to comply with any provisions of the Constitution or
any law regulating its proceedings; and
b) where there is a breach of the fundamental right of a complainant.

See also the case of El-Rufai v. House of Representatives (2003) FWLR (pt. 173) 162.

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Further powers of the Legislature shall be found under Chapter V of the 1999 Constitution
and shall be considered under the following headings:

3. Approval of Appointments

The President of the nation in exercising his executive functions can make some
appointments into his cabinet. Similarly, the Constitution confers powers on the governor of
a state to make certain appointments in carrying out his executive functions of the state.
Such appointments at the federal level include the appointment of Ministers of the
Government of the Federation. Section 147 confers on the President the power to establish
ministerial offices as he deems fit. The section provides further that any appointment to the
office of Ministers of the Government shall be by the President if the nomination of any
person to such office is confirmed by the Senate of the National Assembly. However, an
appointment to the office of Minister shall be deemed to have been made where no return
has been received from the Senate within 21 working days of the receipt of nomination by
the Senate. Similarly, section 192 of the Constitution provides the Governor of a state may
establish such offices of Commissioner of the Government of the State as he may deem
necessary. Such appointments to the office of Commissioner of the Government of the State
shall be made by the Governor upon confirmation of the person so nominated for the office
by the House of Assembly of the State. An appointment to the office of Commissioner under
section 192 shall be deemed to have been made where no return has been received from
the House of Assembly within 21 working days of the receipt of nomination by the House of
Assembly.

Note that the appointments of Attorney-General of the Federation and the Attorney-
General of a State are respectively provided for by sections 150 and 195 of the Constitution,
and shall be made by the President or the Governor as the case may be. It is should be
noted however that the Attorney-General of the Federation and the Attorney-General of a
State are the Chief Law Officers and the Minister of the Government of the Federation and
the Commissioner of the Government of a State respectively, therefore their appointments
are subject to confirmation in the same manner as provided for under sections 147(2) and
192(2) of the Constitution respectively.

In the performance of the executive functions of the Government the President may
appoint any person as a Special Adviser to assist him. Though such appointment is not
subject to confirmation by the Senate of the National Assembly as the appointment of the
Ministers; and it is at the pleasure of the President, the number of such Advisers and their
remuneration and allowances shall be prescribed by law made by the National Assembly or
by resolution of the National Assembly. Likewise, a State Governor may appoint any person
as a Special Adviser to assist him in the performance of his functions without any
confirmation by the House of Assembly of the State, the number of such Advisers and their
remuneration and allowances shall be as prescribed by law made by the House of Assembly
of that State or by resolution of the House. See section 196(2) of the Constitution.

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By the provision of section 171(1)(c) of the Constitution power to appointment persons to

hold offices as Ambassador, High Commissioner or other Principal Representative of Nigeria
abroad and the power to remove persons so appointment from any such office shall be
vested in the President. However, such appointment to the office of Ambassador, High
Commissioner or other Principal Representative of Nigeria abroad shall not take effect
unless the appointment is confirmed by the Senate of the National Assembly. See section
171(4).

In carrying out the functions of the Government the Constitution provides for certain
Federal Executive Bodies. Section 153 of the Constitution provides for the establishment for
the Federation the following bodies – Code of Conduct Bureau; Council of State; Federal
Character Commission; Federal Civil Service Commission; Federal Judicial Service
Commission; Independent National Electoral Commission; National Defence Council;
National Economic Council; National Judicial Council; National Population Commission;
National Security Council; Nigerian Police Council; Police Service Commission; and Revenue
Mobilisation Allocation and Fiscal Commission with powers and composition of each of
these bodies itemised under Part I of the Third Schedule of the Constitution. Section 154 of
the Constitution provides that except in the case of ex-officio members or where other
provisions are made in this Constitution, the Chairman and members of any of the bodies so
established under the provisions of section 153 shall be appointed by the President and the
appointment shall be subject to confirmation by the Senate, except in the case of
appointment of a person as Chairman or member of the Council of State or the National
Defence Council or the National Security Council, where the President shall not require to
obtain the confirmation of the Senate (see section 154(2) of the Constitution).

The Constitution also provides for the establishment of certain State Executive Bodies at
state level, which are the State Civil Service Commission; State Independent Electoral
Commission; and State Judicial Service Commission (see section 197(1) of the Constitution).
The composition and powers of each body established by section 197(1) are as set out in
Part II of the Third Schedule to the Constitution. The Governor of the State is given the
power to appoint the Chairmen and members of boards and governing bodies of statutory
corporations and companies in which the Government of the State has controlling shares or
interests and councils of Universities, Colleges and other institutions of higher learning and
also of the executive bodies mentioned in section 197(1). In exercising such power of
appointment, except in the case of ex-officio members or where other provisions are made
by the Constitution, the Chairman and members of any of the bodies so established shall,
subject to the provisions of the Constitution, be appointed by the Governor of the Sate and
the appointment so made by the Governor of the State shall be subject to confirmation by a
resolution of the House of Assembly of the State. See section 198 of the Constitution.

Appointments of the Auditor-General for the Federation, who shall have power to audit the
Federation public accounts is made by the President on the recommendation of the Federal

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Civil Service Commission, subject to confirmation by the Senate. See section 86 of the
Constitution. Also there is established the office of Auditor-General of a State to audit the
public accounts of the State. The appointment of the Auditor-General of a State is made by
the Governor of the State on the recommendation of the State Civil Service Commission
subject to confirmation of the House of Assembly of the State. See section 126 of the
Constitution.

Appointments of judicial personnel are constitutionally bestowed on the executive arm of

government, which are specifically the President of the Federation and a State Governor, as
the case may be. Some of such appointments require confirmation of the Legislature for
them to be valid. The Constitution requires that the appointments of all the Justices of the
Supreme Court, including the Chief Justice of Nigeria, shall be made by the President on the
recommendation of the National Judicial Council subject to confirmation of such
appointments by the Senate. In the same vein, appointments of a President of the Court of
Appeal , the Chief Judge of the Federal High Court, the President of the National Industrial
Court, the Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi
of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and a President of the
Customary Court of Appeal of the Federal Capital Territory, Abuja shall be made by the
President on the recommendation of the National Judicial Council, subject to confirmation
of the Senate. Due to the federal system of government adopted in Nigeria aside the federal
court system, there are state courts provided for and recognised under the Constitution.
The appointments of some judicial officers require confirmation of the House of Assembly
of the State. The Constitution requires that the appointment of the Chief Judge of a State
High Court, the Grand Kadi of a State Sharia Court of Appeal and a President of a State
Customary Court of Appeal shall be made by the Governor of the State on the
recommendation of the National Judicial Council, subject to confirmation of such
appointments by the House of Assembly of the State.

Some laws establishing certain bodies may also confer power on the legislature to confirm
certain appointments to such bodies. For instance section 2(3) of the Economics and
Financial Crimes Commission (Establishment) Act 2004 provides that the Chairman and
members of the Commission, other than ex-officio members, shall be appointed by the
President and the appointment shall be subject to confirmation of the Senate. Similarly,
section 3(6) of the Independent Corrupt Practices and Other Related Offences Commission
Act 2004 provides that the Chairman and members of the Commission shall be appointed by
the President, upon confirmation by the Senate.

The above review of the law shows that the Legislature have power, either as conferred by
the Constitution or by enacted legislation, to approve certain appointments made by the
executive arm of the government, without which, except as provided otherwise by the
enabling law, such appointments will be invalid.

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4. Power to Conduct Investigation

The Legislature is conferred with powers to carry out some oversight functions to enable
smooth running of government, ministries and departments, and proper conduct of persons
or authority running the affairs of the government. This is to prevent arbitrariness,
oppression, dictatorial tendencies and corrupt practices. By virtue of section 88 of the
Constitution each House of the National Assembly, subject to the provisions of the
Constitution, shall have power by resolution published in its journal or in the Official Gazette
of the Government of the Federation to direct or cause to be directed an investigation into
any matter or thing with respect to which it has power to make laws; and the conduct of
affairs of any person, authority, Ministry or government department charged, or intended
to be charged, with the duty of or responsibility for executing or administering laws enacted
by the National Assembly, and disbursing or administering moneys appropriated or to be
appropriated by the National Assembly. The power so conferred on the National Assembly
under section 88 are exercisable only for the purpose of enabling it to make laws with
respect to any matter within its legislative competence and correct defects in existing laws;
and to probe into the departments of the government to expose corruption, inefficiency or
waste and in the disbursement or administration of funds appropriated by it (i.e. the
National Assembly). See section 88(2) of the Constitution. In the American case of McGrain
v. Daugherty 273 US 135, the U.S. Supreme Court settled the question of the right of the US
Congress to conduct investigation when it said that: “The Power of congressional inquiry
with the process to enforce it is an essential and appropriate auxiliary to the legislative
function.” Similarly in the case of Watkins v. United States (1957) 354 US 178 the US
Supreme Court said that: “The Power of the Congress to conduct investigations is inherent
in the legislative process.”

A House of Assembly of a State is similarly conferred with power by section 128 of the
Constitution to conduct investigations, subject to the provisions of the Constitution, by
resolution published in its journal or in the Official Gazette of the Government of the State
into any matter or thing with respect to which it has power to make law; and the conduct of
affairs of any person, authority, Ministry or government charged, or intended to be charged,
with the duty of or responsibility for executing or administering laws enacted by that House
of Assembly, and disbursing or administering moneys appropriated or to be appropriated by
such House.

Note that section 67(2) and 108(2) of the Constitution, which deal with right of attendance
at the legislative proceedings, are the corollaries of sections 88 and 128 respectively. By
virtue of the section 67(2) a Minster of the Government of the Federation shall attend
either House of the National Assembly if invited to explain to the House the conduct of his
Ministry and in particular when the affairs of that Ministry are under discussion. A
Commissioner of the Government of a State can be similarly under section 108(2) invited by
the House of Assembly of the State when affairs of his Ministry are under discussion.

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5. Power as to matter of evidence

As ancillary to the power to conduct investigations conferred on the Legislature under

sections 88 and 128 of the Constitution there is conferred on the Legislature by the
Constitution the power to procure or conduct evidence and to compel the attendance of
witnesses. The Senate or the House of Representatives or a committee of the House
appointed by either of them shall have power to procure evidence, written or oral, and
examine witnesses for the purpose of its investigation under section 88 of the Constitution,
and may require such evidence to be given on oath. The House or its committee shall also
have power to summon any person in Nigeria to give evidence and to issue a warrant to
compel the attendance of any person who after having been summoned to attend fails,
refuses or neglects to do so without justification, and such a parson may be ordered to pay
all costs which may have been occasioned to compel his attendance, and also to impose
such fine as may be may be prescribed for any such failure, refusal or neglect which shall be
recoverable in the same manner as a fine imposed by a court of law. Similarly the House of
Assembly of a State can wield such power as to matter of evidence in a case concerning the
State as provided for under section 129 of the Constitution.

6. Impeachment Power

The Legislature has a constitutional power to impeach the elected officers of both the
Executive and the Legislative arms of government. Such officers include the executive
President and vice president of Nigeria as provided for under section 143 of the
Constitution; the Senate President or the Deputy President of Senate (See section 50(2)(c) of
the Constitution); the Speaker or Deputy Speaker of the House of Representatives (see
section 50(2)(c) of the Constitution), and other elected officers of the National Assembly;
Governor and Deputy Governor of a State as provided for under section 188 of the
Constitution, Speaker and Deputy Speaker of the House of Assembly (see section 92(2)(c) of
the Constitution) and elected officers of the State House of Assembly.

7. Power to ratify or pass Treaties into law

Treaties are international agreements entered into by States which are mostly put up for
signature and ratification by the participating States in the negotiation and formulation of
such treaties, or any interested party. This is mostly done on behalf of the concerned State
by the Executive arm of government. In some cases there are provisions in the laws of some
states to the effect that mere ratification of a treaty is suffice to make such a treaty effective
and to have a force of law in the ratifying state. In States like Nigeria and the United States
of America, mere ratification of a treaty does not give it the force of law within their States.
There is need for a further action by the Legislature to domesticate such a treaty to give it a
force of law. This power is a recognised power of the Legislature in Nigeria as conferred by
section 12 of the 1999 Constitution.

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