The Executive

Nigeria has practiced three forms of executive powers. The first was under the 1960 and 1963 constitutions where there existed a Parliamentary System of government where power was shared between the Head of State and Head of Government. The next form came under Military rule where all the executive authority was vested in the military head of State who was also the chairman of the legislative body. The third form was the Presidential type under the 1979,1989 and 1999 constitutions. Section 5(1) of the 1999 constitution thus provides:

5. (1) Subject to the provisions of this Constitution, the executive powers of the Federation:

(a) shall be vested in the President and may subject as aforesaid and to the provisions 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 the Federation or officers in the public service of the Federation; and

(b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.

Qualification and Disqualification

The criteria for qualification for appointment to the office of President is provided in section 131 and they include the following: He must be a Citizen by birth, must be at least forty years old, be a member of a Political party and get sponsored by it and be educated up to at least School certificate level or its equivalent.

Section 137 deals with grounds for disqualification. A candidate for the office of the President of Nigeria is disqualified for election on the same grounds as members of the Legislature stated earlier. Thus, if an aspirant is declared bankrupt or a lunatic, he is automatically disqualified.

The president

The INEC is responsible for organizing the presidential election, which must not be earlier than Sixty days or later than thirty days before the expiration of the office of the incumbent. By virtue of section 142, to be qualified for nomination, the President must nominate a Vice President from his own political party who is regarded as duly elected once the Presidential candidate is elected. The President is saddled with the responsibility of executing and maintaining the provisions of the law and in order to attain an achievement of this, the Constitution endorses the President with certain powers which will be discussed subsequently. It is worthy of note that the powers of the President are delegable also.

The vice-president

Section 142, as stated above, establishes the importance of the office of the Vice President. The Supreme Court in AG Federation v Abubakar stated that by virtue of the provision of section 142, it is assumed that the President and Vice President should maintain the same relationship throughout their term of office. Thus, his freedom to disagree and criticize can only be privately in a meeting with the President alone or in the Executive Council. This should not be taken to mean the Vice President is a toothless bulldog as such, because according to the Court of Appeal in the same case, it is to the Federal Republic of Nigeria that all persons in government ultimately owe their allegiance. The Vice President is not given any particular role under the Constitution and it is the President who determines what role he plays in government.

Tenure

Before taking office, the President and Vice president must declare their assets and swear to the oath of allegiance and office to be administered by the Chief Justice of the Federation. The President continues in office until his four-year tenure runs out or he ceases to hold office for other reasons e.g. impeachment, death, lunacy, inter alia. When the President's tenure ends, so does the tenure of the Vice President. The President and Vice president's tenure ends where by a resolution of two-thirds majority of the members of the executive Council, he is declared incapable of discharging his functions due to infirmity of body and mind. Such resolution must be verified by medical examination.

Title of office

Section 130(2) of the 1999 constitution confers on the President, the office of "Head of State and Chief Executive and Commander in chief of the Armed Forces of the Federation". Concerning the position of the President as Commander in chief of the Armed Forces however, the President is never expected to take personal command, though he may if he possesses superior Military talents.

Powers and duties of the president

1. Execution and maintenance of the constitution and the laws

This power is embedded in section 5(1)(b) of the Constitution. This basically means that the President is responsible for making sure that the provisions of the Constitution are brought into effect. In line with this duty this, section 153 for example states that certain Federal Executive bodies are to be established. It is also the duty of the President to ensure that the Laws enacted by the National Assembly are executed in conformity with the provisions of the Constitution. Observance of the Constitution is to be enforced through judicial means, or force where the former fails.

It should also be taken note of that whenever a situation occurs, in relation to a particular matter under the legislative authority of the National Assembly, but for which a law has not yet been made, the President has the duty to deal with it in the course of his duties in the day to day running of the affairs of the nation as was the case under the Babangida administration in relation to the importation of toxic wastes.

2. War powers

By virtue of section 218, the President has the authority to appoint the Chief of Defense, army, navy and Air staff and heads of any other branches that may have been established by the National Assembly. The President, as the Commander in chief, determines the operational use of the army but he may and often does delegate the power to senior members of the Armed Forces. Generally, he cannot initiate or declare war with another country without the sanction of a resolution of both Houses of the National Assembly at a joint sitting. This is except where the security of Nigeria is being threatened or endangered. He can then deploy combatants after consultation with the National Defence Council. He must however still seek the consent of the Senate within seven weeks.

3. Appointment and removal

The President has powers dealing with the appointment and removal of certain officials in relation to:

• Ministers and Special advisers: The President has the power to establish as many ministerial lists as he deems fit. Those to be appointed as ministers must however possess the same qualifications as members of the House of Representatives in section 66 stated earlier. The Senate must confirm any appointments by the President. Appointment of ministers must also reflect the principles of Federal Character and each state must be as far as possible, duly represented. It is the President who determines the portfolio and duties of the Vice President and ministers from time to time. A minister cannot therefore assume duties that have not been specifically assigned to him as stated in Tende v AG Federation.
• The Attorney-general of the Federation: The Attorney General is the minister of justice, and so an important member of the Executive department. He however, has already defined duties and powers unlike other ministers. He is appointed by the President subject to confirmation by Senate. He must be a person qualified to practise in Nigeria for not less than ten years. His duties are stipulated in section 174(1) as mainly instituting, undertaking or discontinuing public prosecutions in appropriate cases. He is also to maintain some measure of independence in the discharge of his fundamental function as was noted in State v Ilori. The President still has overall authority however to remove the AG from office. The power of the Attorney General in prosecuting offenders on behalf of the State is not exclusive as noted in FRN v Osahon where the Court held that the Police could also prosecute offenders on behalf of the State as reinforced by section 20 of the Act. The President may also appoint special advisers to aid the AG.
• The Civil Service: Per section 169 of the constitution, a Civil service of the Federation is to be established. Section 318 defines "Civil service". The President has the power to appoint and remove Officers into and out of Civil service posts such as Secretary to the Federal Government, Ambassadors, inter alia. Per section 172, those appointed to these offices must conform to the Code of Conduct.
• Executive commissions and Councils: These are councils and Commissions established for the purpose of carrying out specialized duties on behalf of the Executive and the Nation. According to section 153, fourteen commissions and councils are established for the carrying out of functions in various facets of our national life. The President has the power to appoint the Chairman and members of the Commission, subject to confirmation by Senate. To be qualified for membership of any of the Councils or commissions, a person must be eligible for election into the House of Representatives and not subject to any disqualification as such. Any Chairman or member can be removed by the President acting on an address by two-thirds majority of Senate.
• Members of the Judiciary: The Chief Justice of the Federation is appointed by the President, on the recommendation of the National Judicial Council, subject to confirmation by Senate. The President on the recommendation of the National Judicial Council makes appointments of other judges of the various courts.

4. Power over public funds

The President is responsible for the preparation of a budget for the expenditure of the amount standing to the tune of the Federation and lays it before the Legislature for approval. Section 162(1) provides for the opening of a Federation Account into which all revenue collected by the federal government must be paid except the personal income tax of the personnel of the Armed Forces, ministry of external affairs, inter alia. The President upon receipt of advice from the RMAFC, must table before the National Assembly, proposals for revenue allocation from the Federation Account.

5. Treaty making powers

In most legal systems, it is the Chief Executive or Head of Government that is given the authority, expressly or impliedly, to enter into international treaties on behalf of the Nation. This authority is implied under the provision of section 12(1) which states that:

No treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly.

6. Perogative of mercy

This is referred to as the power to grant free or conditional pardon in certain circumstances, and in relation to Federal Law. Section 175 of the 1999 constitution provides that the President may use this power to either pardon a person of punishment, grant respite, substitute punishment or remit punishment on a person, partly or wholly. It should however be taken note of that as the Court put it in Okongwu v State, the effect of a free pardon is such as to remove from the subject of the pardon, "all pains, penalties and punishments whatsoever that the said conviction may ensure, but not to wipe out the conviction itself."

7. Declaration of a state of emergency

Section 305 provides that the President may by instrument published in the Official-Gazette of the Government of the Federation, issue a Proclamation of a state of emergency in the Federation or any part thereof. The President shall then immediately after the publication, transmit copies of the Official-Gazette of the Government of the Federation containing the proclamation including the details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation.

8. Other powers

Section 32 gives the President the power to make regulations in relation to Citizenship matters under Chapter Three of the Constitution and for granting special immigration status with full residential rights to spouses of Nigerians who do not wish to become Nigerians.

State governors

1. Qualification, disqualification, inter alia

Section 177 gives the grounds for Qualification for the position of Governor of a State. Such a candidate must be at least 35 years old, be a citizen of Nigeria by birth, belong to a political party which must sponsor him and be educated up to at least School certificate or its equivalent. By virtue of section 182, one can see the grounds for disqualification, which are similar with the grounds for disqualification of a Candidate for the post of President.

Upon assuming office, the governor must declare his assets and liabilities and subscribe to the oath of allegiance and oath of office before the Chief Judge of the State or whoever may be appointed to perform the function. Before he can be declared to be validly elected, he must nominate a Deputy governor who is deemed duly elected if the governor wins the election. The Governor retains the discretion as to what duties to assign to the deputy governor, commissioners and other members of his establishment.

2. Tenure

According to section 180, the tenure of a governor ends when his successor in office takes the oath of that office, or he dies whilst holding such office, or when his resignation from office takes effect or he otherwise ceases to hold office in accordance with the provisions of the Constitution. Generally, however, the governor's tenure ends after four years.

3. Powers

Section 5(2)(a) and (b) vest the executive powers of the State in the governor and he may exercise it directly or through his deputy, commissioners or officers of the State Public Service. It should further be understood that the Governor holds the duty of ensuring that the provisions of the Constitution are executed and maintained within his domain, and can litigate against any infraction. It should also be noted that section 5(3) limits the scope of the executive powers of the Governor.

• Appointments and removal: The governor, subject to confirmation by the House of Assembly, appoints the commissioners of the State, but such appointment must reflect the diversity or various ethnic groupings within the State. The governor is also entitled to appoint special advisers, the number and remuneration of which is to be determined by a Law of the House of Assembly. The Governor has the same powers assigned the President to dismiss members of his cabinet also.
• Establishment of State Commissions and Civil service: Section 197 provides for the establishment of a State civil service commission. There is also the State Independent Electoral Commission and the State Judicial Service Commission. Section 197(3) provides for appointments into the commissions to be made by the governor, subject to legislative confirmation. They can also be removed by the governor acting on an address supported by two thirds majority of the members of the House of Assembly.
• Prerogative of Mercy: Section 212 of the Constitution states the governor has the power to grant pardon to persons under the same circumstances as the President as discussed above, but in relation to offences created under the law of the State. The Governor is to exercise the power after consultation with an advisory council to be established by the Law of the State.
• Power over public funds: The State is in a like manner as the Federal government, to maintain an account called the State Joint Local Government Account into which all allocations to local government councils in the state from the Federation account is to be paid. Each State is to pay the local government councils in its domain such proportion of its total revenue as may be prescribed by the National Assembly.

Miscellaneous executive matters

1. Immunity

The Practice in modern societies of making provisions for restriction of legal proceedings against the Chief executive of a nation has been said to be a functionally mandated incident of the President's unique Office. This has generally been referred to as the immunity clause. This is embedded in section 308 of the Constitution. In Bola Tinubu v. IMB Securities PLC, while this case was ongoing on appeal, the appellant became the governor of Lagos State and as a result, the court had to strike out the case based on the immunity clause on executive officials in section 308. The case of Media Techniques Nigeria Ltd v. Alhaji Lam Adesina further states this same fact as a suit for libel had to be struck out based on the fact that the Defendant was a governor. It should be noted that this immunity only extends to civil and criminal actions against the heads of the executive. Actions may still be brought against the executive head concerning his election as the court stated in Amaechi v. INEC. Also, the office of the president may have an action brought against that office even though the personal person of the president cannot have an action brought against him while he holds that office.

It was held that this Immunity does not apply in relation to election petitions challenging the election or re-election of the President or Governor. The case of Alliance for Democracy v Fayose explains this. The President or governor and their deputies are however not immune from civil actions as a result of acts done by them or on their behalf in their official capacities or criminal proceedings in which they are nominal parties section 308(2).

2. Removal by impeachment

Worthy of note here is the fact that the governor and deputy governor are subject to the same removal procedure as the President, on the grounds of 'gross misconduct' in the performance of the functions of his office. S. 188 of the Constitution covers the procedure for impeachment thus.

The Governor or Deputy Governor of a state may be removed from office whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified. The speaker of the House of Assembly shall, within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office and on each member of the House of Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office, to be served on each member of the House of Assembly. Read section 188 further.

It should however be noted that if all the constitutional requirements for the removal are not adhered to, the Courts have the power under section 1(3) to declare such removal unconstitutional. According to the Court in Inakoju v. Adeleke, the impeachment or removal of a governor is a serious business, and the provisions of section 188 of the Constitution must be strictly complied with. Also see the locus classicus case of Alhaji Balarabe Musa v Speaker, Kaduna State House of Assembly.

3. Power over existing laws

An existing law has effect subject to such modifications as may be necessary to bring it to conformity with the provisions of the Constitution, to be made by an appropriate authority, which is the President of the Federation with respect to Federal Law, and the Governors of a State for state laws.