THE CONSTITUTIONAL AND POLICY ROLE OF THE NATIONAL
ASSEMBLY AND ITS LEGAL RELATIONSHIP WITH OTHER ARMS OF
GOVERNMENT
INTRODUCTION
The constitution of the FRN, 1999 ‘the constitution” in sections 4, 5 and 6
provides for the powers of the FRN to wit: legislative, executive and judicial
powers respectively. By section 47 of the constitution the National
Assembly is established to exercise the powers provided for in section 4.
This paper therefore seeks to examine what those powers are and how the
exercise of those powers affects the other two arms of government.
WHY THREE ARMS OF GOVERNMENT?
As earlier pointed out, the powers of the FRN have been spelt out to be
exercised by the legislature, executive and judiciary, meaning that there
are three (3) arms of government. The rationale behind the division of
powers among the three arms is to avoid tyranny, despotism and
arbitrariness in government. It is not expedient, safe and wise that the
power to make, execute, and interpret laws should reside in one power or
institution. It is most likely to be abused hence the need to allow different
persons exercise those powers with little or no disturbance from other
arms.
The practice has come to be known as “separation of powers”. 1 The
modern concept of separation of powers was developed by Montesquieu
who reasoned that
In every government there are three sorts of power:
legislative; the executive in respect to things dependent on the
law of nations; and the judicial in regard to matters that
depend on the civil law. by virtue of the first, the prince or
magistrate enacts temporary or perpetual laws and amends or
abrogates those that have been already enacted. By the
second, he makes peace or war, sends or receives
embassies, establishes the public security and provides
against invasion. By the third he punishes criminals or
determines the disputes that arise between individuals. 2
The above statement represents the division of powers between the three
arms of government: between the legislature; “the first”, the executive; “the
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second” and the judiciary being “the third”. To buttress his proposition he
further stated:
The political liberty of the subject is a tranquility of mind arising
from the opinion each person has of his liberty, it is requisite
the government be so constituted as one man need not be
afraid of another. When the legislative and executive powers
are united in the same person or in the same body of
magistrates, there can be no liberty, because apprehensions
may arise, lest the same monarch or senate should enact
tyrannical laws to execute them in a tyrannical manner. Again,
there is no liberty if the judicial power be not separated from
the legislative and executive. Where it joined with the
legislative, the life and liberty of the subject would be exposed
to arbitrary control, for the judge would then be the legislature.
Where it joined to the executive, the judge might behave with
violence and oppression. 3
From the above the underlying principle of separation of powers is that
political liberty prevails and is enjoyed in the absence of abuse of power.
“Power corrupts” and “absolute power corrupts absolutely” hence it is
dangerous to concentrate power in one person who is mostly likely to
abuse it or put it to wrong use. To avoid abuse of power, it is expedient for
one arm in the exercise of its powers to be a check on the other.
Consequently the legislature should exist distinct and separate from the
executive and judiciary. There should not be a mix.
In Nigeria the principle has been a subject of judicial interpretation and
application. For instance in the case of Lakanmi v Attorney-General
(Western State of Nigeria) 4 the Supreme Court of Nigeria recognized the
concept of separation of powers, pointing out that the promulgation of
Decree No. 45 of 1968 amounted to an exercise of judicial function by the
executive. The court said
We must here revert again to the Separation of Powers which
the learned Attorney-General himself did not dispute is still the
structure of our system of government. In the absence of
anything to the contrary it has to be admitted that the structure
of our constitution is based on the Separation of powers – the
Legislature, the executive and the Judiciary…………….. .
In the distribution of powers the courts are vested with the
exclusive right to determine justiciable controversies between
citizens and the state. 5
2
That the doctrine of the Separation of Powers has come to stay in Nigeria
is well recognized judicially 6 and constitutionally.
THE NATIONAL ASSEMBLY
Section 47 of the constitution provides:
There shall be a National Assembly for the Federation which
shall consist of a Senate and a House of Representatives.
By the above provision, a bi-cameral legislature has been established for
Nigeria at the National level. Section 4 makes provisions for the powers
that shall be exercised by the National Assembly. Generally the National
Assembly is empowered to make laws 'for the peace, order and good
government of the Federation or any part thereof' but on matters
enumerated in the exclusive legislative list contained in part 1 of the
second schedule to the constitution .7 The enumeration of the matters over
which the National Assembly can legislate implies that it cannot legislate
on matters not expressly stated and those which cannot by implication be
said to be matters it can legislate upon.8 The maxim "expressio unis,
exclusio ulterius" is applicable. What is not expressly donated or
expressed by the constitution is excluded from the powers of the National
Assembly.
The Exclusive Legislative list 9 contains a total of 68 items. It seems from
the numerous items or matters listed, the National Assembly can legislate
on virtually all important issues touching and concerning Nigerians. It
should also be noted that the National Assembly can also legislate on
items contained in the concurrent legislative list10 where a State House of
Assembly has not legislated on the item. Where the law enacted by the
State House of Assembly is in conflict with that made by the National
Assembly, it shall be to the extent of the inconsistency, null and void by the
provisions of section 4(5). Although the National Assembly is supreme in
relation to its powers to make laws, the exercise of that power is limited
only to the extent that it must comply with constitutional provisions in the
exercise of that power. As rightly observed by Fatayi- Williams CJN as he
then was
… 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
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making that are imposed by that constitution which itself
regulates its power to make law.11
Subject to the provisions of the constitution, the powers of the National
Assembly are over-whelming. It can do anything within the constitution
provided it is for the peace, order and good government of the Federal
Republic of Nigeria or any part. According to Nwabueze,12 a legislature,
nay the National Assembly
Can legally exercise the sovereignty of the nation reposed in it
in any way and for whatever purposes it chooses; it can, in
theory at any rate, do anything it likes except, of course, things
that are physically impossible, like turning a man physically
into a woman, or a woman into a man…
The role of the National assembly is very profound and cannot be overemphasized. It was properly captured by the Constitution Drafting
Committee’s Sub- Committee on the Legislature on the 1979 Draft
Constitution thus:
We believe that the legislature under a democratic system of
government has an important role to play in sustaining the
democratic system. Its primary function is to make laws but in
exercising these functions, it must keep itself informed of the
needs of the society and of the way in which the laws it enacts
are executed. The legislative process would be incomplete if
all that legislatures have to do were to examine bills placed
before them without going any further. We think that it is too
narrow a view of legislative functions. Legislatures must inform
themselves of how existing laws are administered and what
defects show up on the administration of laws. When they
make new laws, they are as a rule, dealing with political,
economic or social problems which exist or are likely to arise
and they must be fully informed about those problems…
without a vigilant legislature capable of acting as a check on
presidential powers, those powers could easily be abused.
THE ROLE AND FUNCTIONS OF THE NATIONAL ASSEMBLY
There does not seem to be a general consensus on what are the roles and
functions of the legislature13 and in this case, the National Assembly. But
generally these roles and functions include; 14
a)
Lawmaking (legislation) and formulation of policies.
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b)
c)
d)
e)
Representation
Administrative oversight
Financial control
Investigation.
Lawmaking and Formulation of Policies.
The power of lawmaking is exercised by the passage of bills by the
concurrence of both the Senate and House of Representatives. The bill
must be assented to by the president for it to become an Act of the
National Assembly. Where the President withholds his assent, the bill shall
be passed again by the Senate and House of representatives by two-thirds
majority. Where that is done, the bill shall become law without the assent
of the President. 15 Before bills are passed, there must have been robust
and exhaustive debates during which the policy thrust and rationale behind
the bills must have been debated. The policy of government is
encapsulated behind and within the bill as passed into law. It is within the
power of the National Assembly to clarify and identify policy issues and
legitimize them by legislation. For instance the policy thrust of the present
administration is embedded in her seven – point agenda. It behoves on the
National Assembly to ensure that apart from the seven- point agenda, it
also formulates its own policy for purposes of legislation and ensure that
the seven – point agenda has a legislative framework and backing. So far
the National Assembly does not seem to have a well- articulated policy of
legislation. The National Assembly seems to lack direction, focus and
concentration on its functions hence the lack of positive impact we have
witnessed in the life of the current National Assembly.
Representation
Sections 48 and 49 of the constitution make provisions for the composition
of the senate and House of Representatives. The Senate shall comprise of
three senators from each state and one from the Federal capital territory,
Abuja, while the lower house, the house of representatives shall be made
up of three hundred and sixty members representing "constituencies of
nearly equal population as far as possible, provided that no constituency
shall fall within more than one state". By representation the National
Assembly shall be able to voice out the views, opinions, desires and
expectations of people and interest groups. People are elected to pursue
all sort of interests and claims. The National Assembly member so elected
is elected to represent his senatorial district and constituency, to speak for
the interests and well- being of the people he represents. It is often said
that democracy is the "government of the people, for the people and by the
people". This phrase is given expression when people are elected into the
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National Assembly. When different peoples, interest and groups are
represented, no one shall complain of exclusion and his complaints shall
be properly ventilated, views heard and expectations possibly met.
Administrative Oversight
Administrative oversight is an indispensable legislative function. It includes
and involves surveillance of policy implementation. In oversight functions
the legislature inquires into how policies and decisions have been carried
out. Post administrative actions are investigated while public officials are
invited to account for their financial and administrative actions. There are
reports of Public Accounts Committees of the National Assembly asking
public officials to render account of grants to ministries or extra –
ministerial departments and parastatals.16 The over-sight function which
serves as a check and balance is an embedded principle of separation of
powers in order that no single arm of government takes absolute and total
control of the entire machinery of government leading to arbitrariness,
dictatorship, oppression or corruption. The National Assembly in the past
and even currently seems to be paying more attention to this function than
law-making and policy formulation.
Financial Control
The National Assembly exercises financial control by scrutinizing and
approving the budget and passing same into law through the appropriation
bill, authorizing expenditures from the consolidated revenue fund, auditing
public account.17 This function has been a very sensitive function of the
National Assembly for obvious reasons because it involves money. No
wonder it takes a lot of disagreements, lobbying, sometimes bickering and
a lot of time before annual budgets and appropriations are passed into law.
Public funds cannot be spent without the approval of the National
Assembly, consequently every expenditure is expected to be approved by
the National Assembly.18
Investigation
Section 88 of the constitution empowers the National Assembly to conduct
investigations in exercise of its oversight functions. We have heard of
probes into the power, aviation, transportation and many other sectors and
areas of the Nigerian socio-political life. All the probes carried out by the
National Assembly are all in a bid to discharge its investigatory functions.
In the United States of America, the Supreme Court 19 held that the power
of investigation
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Encompasses inquiries concerning the administration of
existing laws as well as proposed or possibly needed statutes.
It includes surveys of defects in our social, economic or
political system for the purpose of enabling the congress to
remedy them. It comprehends probes into departments of the
Federal Government to expose corruption, inefficiency or
waste.
The statement is equally true of Nigeria.
It should be noted that although the National Assembly can investigate
anything or matter, its power of investigation is circumscribed by subsection (2) of section 88 of the constitution, that is for the purpose of
enabling the national Assembly to make laws and expose corruption,
inefficiency or waste in the execution or administration of laws and in the
disbursement or administration of funds.20
There is no gainsaying the fact that the exercise of the above roles and
functions are likely to affect other arms of government.
THE NATIONAL ASSEMBLY AND THE EXECUTIVE
The concept of separation of powers ensures that there are checks and
balances among the three arms of government but that is not to say that
each is completely isolated from each other. There are in built mechanisms
and constitutional provisions, which ensure that one arm does not lord over
the other.
a)
Legislation: The constitution in section 58 gives the National
Assembly the general power of legislation but for a bill to become
law, the president has to assent within thirty days. If the president
withholds his assent, under sub-section (5) the national assembly
can override the President’s veto and the bill shall become a law. 21
This ensures that the executive arm of government does not hold
the legislative arm to ransom and frustrate the latter in the exercise
of its roles and function of legislation.
b)
Removal from Office: The one of the most effective weapons of
checks and balances that the legislature has over the executive is
that of impeachment in section 143 of the constitution. With this
power, the National Assembly can whip the executive into line and
check the excesses and tyranny of the executive. In the second
Republic this power was exercised at the state level in Kaduna State
and Kano State where the Governor and Deputy- Governor
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respectively were removed. There was an attempt to remove
President Olusegun Obasanjo by the House of Representatives
under the Speakership of Gali Na’Abba though the effort was
abortive.
c)
Fixing of Remunerations:
It is within the legislative power of the National Assembly to fix the
personal emoluments of political office holders and public servants.22
This ensures that the executive does not pay to itself or other public
officers it appoints personal emoluments outrageously in excess and
ridiculously above the finances of the federation. There is always the
temptation for the executive to allocate to itself funds far out of tune
with financial and economic realities especially as the executive likes
to keep a long retinue of officers and aides with duplicating
functions.
d)
Confirmation of Appointments: Political appointments by
executive must be confirmed by the Senate – section 147 (2). Before
that is done, the prospective appointees are usually screened by
senate. There are other appointments which require the confirmation
of senate, for instance, that of the Chief Justice of Nigeria (section
231), Grand Khadi and Kadis of Sharia Court of Appeal of the
Federal Capital territory (Section 261) and the auditor- general of the
federation (section 86).23 The exercise of this function should
prevent or reduce unnecessary "executive and political patronage"
but that is not always the case, as nominees usually take bows
without being screened while some who must have been sponsored
by political big-wigs and god-fathers usually scale through with little
or no screening.
e)
Emergency Powers: Not long ago, Plateau State experienced the
exercise of this power under section 305 when the then President
Olusegun Obasanjo declared a state of emergency.24 The power of
approval lies in the National Assembly under sub-section (2) of the
said section. This power can be used for political victimization unless
the National Assembly is alive to its responsibilities.
THE NATIONAL ASSEMBLY AND THE JUDICIARY
While the courts cannot interfere with the legislative powers and functions
of the National Assembly provided they are exercised in accordance with
the provisions of the constitution, section 4(8) provides that the legislative
functions and powers of the National Assembly shall be under the
supervisory jurisdiction of the courts and tribunals. To that extent the
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National assembly has no power to legislate out the jurisdiction of the
courts or tribunals established by law.
Consequently what happened in Lakanmi’s case is against the
constitutional role and function of the National Assembly likewise the
ousting of the courts’ jurisdiction. The courts exist to ensure that whatever
the National Assembly does is within its constitutional competence.
CONCLUSION
It could be asserted that the concept of separation of powers is not a water
tight principle. Although the three arms of government especially the
National Assembly have specific constitutional functions and roles, there
are instances where each crosses each other’s path thereby ensuring that
one does not rule over each other. The areas in which each other’s
functions dove-tail into each others are not in no wise exhausted here. For
instance as relating to the executive, sections 12 and 315 which deal with
implementation of treaties and existing law provide instances where the
former and latter cross each other’s path. Perhaps it is instructive to note
that no, arm of government can exist completely independent of each
other. They all play complementary roles and functions for the smooth
operation of the machinery of government. Where there is a break in the
link or chain, there is likely going to be anarchy, break-down of law and
order. Therefore it is needful that all the arms of government must
cooperate with each other so that the much talked about dividends of
democracy can be accessed by all Nigerians.
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NOTES
1.
An idea conceptualized by John Locke: See O.H. Phillips, the
constitutional Law of Grant Britain and the Common wealth (1957) p.
28.
2.
Montesquieu, L' esprit des Lois; Translated, “The spirit of the Laws"
by T. Nugent, with an Introduction by F. Neumann (New York;
Hafner publishing Co; 1949) p. 151
3.
Ibid; pp. 151-152
4.
91971) 1 UILR 201
5.
Supra at p. 218
6.
See also Okumagba v Egbe (1965) 1 All NLR 62, the Governor of
Kaduna state v The House of assembly, Kaduna State & Anor.
(1981) 2 NCLR 444, Unongo v Aku (1983) 2 SCNLR 332, AttorneyGeneral of the Federation v Guardian Newspapers (1999) 5 SCNJ
324 at 368-369, A. G. Abia State & Ors V A. G. of the Federation (
2002).3SCNJ 158 at 312, Atolagbe v Awuni, (1997) 9 NWLR (PT
522) 536.
7.
See section 4 (2)
8.
Akande, Introduction to the Constitution of the Federal Republic of
Nigeria 1999 (MIJ Publishers, 2000) pp. 20-22. See also: Aihe,
Selected Essays on Nigerian Constitutional Law (Idodo Umeh
Publishers ltd 1985) p. 48.
9.
Second schedule, part 1 of the constitution .
10.
Part II, Second Schedule
11.
Attorney- General, Bended Stated v Attorney- General of the
Federation & Ors (1981) 10 S.C.1.
12.
Ben Nwabueze, Constitutional Democracy in Africa, Vol. 1
(Spectrum Books Ltd, 2003) p. 183.
13.
Lees and Shaw, Committees in Legislatures: A Comparative
Analysis (Martin Robertson 1979) p. 12.
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14.
Ibid. p. 364. See also: Okon and Essien, Law-Making Processes in
Nigeria. (Sectrum Books Ltd, 2005) p. 36, Adeoye A. Akinsanya,
"The Legislature in a Presidential Democracy in Nigeria During the
Fourth Republic" (2002-2003) vols. vi-vii, the Calabar Law Journal
pp. 158-183, Malemi, the Nigerian constitutional Law (Princeton ,
2006) p.157.
15.
S. 58 of the Constitution. See also s. 4
16.
S. 85 of the Constitution
17.
See sections 80-85 of the constitution.
18.
Ijaiya, "The Control of Public Finance by the Legislature: A critical
Analysis", (2005) vol. 3 No. 3 Nigerian bar Journal pp. 10-22. See
also, Hon, Constitutional Law and Jurisprudence in Nigeria (Reare
Publishers, 2004).pp. 166-168.
19.
Watkins v United States 354 U.S. 178 at 187 (1957). See Also
Mcgrain V Daugherty 273 U.S. 135 (1927)
20.
For instance the probe or investigations into the FCT administration
under EI- Rufai and other probes into the affairs of ministries and
Parastatals during the administration of President Olusegun
Obasanjo.
21.
The Niger Delta Development Commission Act became a law in this
circumstance.
22.
See: SS. 84 and151 of the constitution.
23.
See also: SS. 154, 250, 256 and 266 of the constitution.
24.
See also Williams v. Majekodunmi (1962) 1 All NLR 413 and
Adegbenro v A. G. of the Federation & Ors (1962) WNLR 150.
11