By Ebun-Olu Adegboruwa, SAN
Under and by virtue of sections 4 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended):
(1) “The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution.”
The legislature is regarded as the First Estate of the Realm, because it is responsible for determining the order of events in a nation, by making laws to regulate human conduct, to establish and define the roles of institutions and to create offices and state their functions. It is through legislation that the executive and judicial arms of government are created; thus, every other section of society derives their existence from the law as made by the legislature. However, the primacy of the legislature goes beyond just making laws, as it is empowered to conduct public hearings and also engage in oversight functions over other organs of government. It is thus expected that through its additional powers of control of public funds, approval and oversight functions, the legislature will work to curb the excesses of the executive arm of government, especially in situations where retired politicians have hijacked the democratic process, having in their prime tasted power and are not willing to hand over to others. These factors have shot the legislature into national focus, especially the leadership. Presently, the National Assembly in Nigeria is seen as a place of retirement for ex-governors and other top government functionaries, which limits the capacity of the lawmakers, especially the Senate.
The National Assembly is a bicameral legislature consisting of 109 members of the Senate and 360 members of the House of Representatives, modeled after the federal Congress of the United States and meant to guarantee equal representation. The doctrine of separation of powers dictates that the three arms of government should operate independently. If we follow the chronological order of the Constitution, the legislature is established under section 4, the executive under section 5 and the judiciary under section 6, in that order. Their functions are defined separately but in practice, they work complimentarily. For instance, the executive has to inaugurate the legislature, the judiciary has to swear in the executive whilst the legislature has to approve the cabinet and indeed the budget of the executive and the judiciary. Amongst the three arms of government, the executive is more visible, being the organ responsible for formulating and executing policies. The powers granted to the executive by the Constitution are so enormous that only an active and functional legislature can help tame the propensity of the executive towards dictatorship.
Beyond the functions enumerated in section 4 (1) and (2) above, the Constitution also empowers the legislature with other important responsibilities for checks and balances. By virtue of section 143 of the Constitution, the National Assembly can initiate the process of removal of the President or the Vice-President under certain circumstances, in the same way that the House of Assembly of the State is empowered to remove the Governor under section 188. The legislature can also help check the excesses of the executive in many areas, for instance by withholding approval for certain appointments in order to achieve equity, equal representation and gender parity. This was well demonstrated recently by the House of Assembly of Lagos State, when it withheld approval for certain names proposed by the Governor for appointment as commissioners, even though the reasons given beg many questions, it was still an opportunity to assert the independence and autonomy of the legislature. Furthermore, under section 88, the legislature is empowered to conduct inquiries and to conduct public hearings on the activities and policies of the government either by itself or upon complaints from the public, for the purpose of preventing corruption or waste. The legislature also has control over public funds and it can deploy such power to keep the executive under control. Thus, where the legislature is vibrant and active to keep the executive on its toes, there is less impunity and lawlessness and the people will enjoy good governance as part of the dividends of democracy. We saw a good example of this between Nancy Pelosi and Donald Trump when the American Congress constantly and diligently scrutinized all the programs and policies of the Trump administration, for a better America. On the other hand, where the legislature is docile, inactive and is conquered by the executive, there will surely be poor governance and a tendency for the executive to slide into dictatorship, leading at times to oppressive and anti-people policies. In essence, democracy will flourish, good governance will be guaranteed and the people will rejoice when there is a vibrant and active parliament. The reverse of course is always the case when the legislature is timid and always seeking compromise on all issues.
The 10th National Assembly has not been tested yet and given the circumstances of its emergence, we do not expect too much. It is commendable however that the current parliament was able to assert itself in relation to the ambitious plan of ECOWAS to launch a war against Guinea. It is to their eternal credit that the legislators rose in unison to amplify the voice of the people at that time. As an autonomous institution, the National Assembly should be autonomous in words and in deed, not crowing before the executive arm of government for palliatives. The 9th National Assembly turned out to be the most robotic parliament in the recent history of Nigeria, preferring rather to treasure political party affiliation over and above the national interest. In that dispensation, the executive arm of government was always certain of maximum support and approval of all proposals and requests, no matter how unpopular, injurious or backward. In the jurisdiction for which our legislative arm has been patterned, there is the robust system of separation of powers and the doctrine of checks and balances, as between Pelosi and Trump. The three arms of government are expected to operate independently and complimentarily, not dependent upon or patronizing, in the manner that the 9th Assembly went about its duties. No doubt it is good to have a responsible legislature for the purpose of harmonization and development but when it gets to the level where the executive is always right, then such level of dubious cooperation should worry all lovers of true democracy. A legislature that cannot supervise and check the excesses of the executive is not worth its name at all. Truth is, such an assembly of persons cannot claim to represent anyone, when the chips are down. They represent only themselves, only their interests and their stomachs.
In relation to its primary power of legislation, the legislature must be very dynamic and responsive. For instance, it must be clear to the National Assembly that the Electoral Act 2022 needs urgent amendment, especially in the controversial areas of multiple nomination of candidates, the status of public officers who desire to contest for elections, the locus standi of citizens contesting the qualification of candidates, electronic transmission of election results and indeed funding of political parties. By now, the National Assembly should have a dedicated legal team that will be responsible for collation of major decisions of the Supreme Court wherein certain provisions of the Electoral Act have been interpreted and ruled upon. These judicial decisions should form the basis of the review of the Electoral Act for amendment. There are elections that will take place before the next general election in 2027. There must be clarity on the role of technology in the conduct of elections so that matters are not left entirely to the discretion of the electoral umpire. In this regard, it is my view that we must substantially reduce human intervention in the conduct of elections. Furthermore, the legislature can help achieve good governance if it includes a provision in the Constitution and the Electoral Act giving opportunity to independent candidates to contest elections. There are competent people in Nigeria who run away from the political space because of the problems associated with the management of political parties, the issue of godfathers, the conduct of primaries and cost of sustaining party leaders in order to secure their endorsement.
As elected representatives of the people, the parliament is expected to assert the will of the people by invoking the relevant provisions of the Constitution to protect the interests of the people they represent. The constitutional role of law making should not be sacrificed on the putrefied altar of constituency projects. So much has been invested in the National Assembly in order to guarantee optimum performance and so the leadership of such a crucial organ should not be a matter of political patronage or reward for perceived electoral support. We cannot afford the misfortune of parading elected representatives who are whipped along the lines of executive preferences, all the time. There has to be a balance of power and of forces, for our nation to ever dream of attaining the expected growth that our leaders have touted so often.
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