Constitutionalism and the Oversight Functions of the Legislature in Nigeria*

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Draft paper presented at African Network of Constitutional Law conference on Fostering Constitutionalism in Africa Nairobi April 2007

Oyewo

CONSTITUTIONALISM AND THE OVERSIGHT FUNCTIONS OF THE LEGISLATURE IN NIGERIA[*]

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“Tyrants will not become benevolent rulers simply because the Constitution tells them to. In order to guard against violations against the letter and spirit of the Constitution, there needs to be a set of institutional arrangements.”[1]

1.INTRODUCTION

The establishment of representative legislatures at the federal and state levels of government by the Constitution of the Federal Republic of Nigeria 1999 (“1999 Constitution”), after a period of Military rule devoid of any representative or accountable governance, essentially epitomized a fresh attempt at constitutionalism in Nigeria.[2] Since constitutionalism requires for its efficiency a differentiation of governmental functions and a separation of the agencies which exercise governmental powers[3], the 1999 Constitution employed the principle of separation of powers[4], as a cardinal feature for the operation of constitutional democracy in the country.

However, the operation of the Constitution was characterized by conflicts, confrontations, feuds and deadlocks between the executive and legislative arms of government especially at the federal level, that usually centered on the question of the existence, scope, and efficacy of the legislature’s independence and oversight function in the constitutional scheme.

The connection between the independence and performance of oversight functions of the legislature (as an essential legislative role in the practice of separation of powers) and constitutionalism (as requiring that government be conducted through constitutionally established institutions and impersonal bureaucratic procedures and processes[5]) is evidently understandable against the background of the absence of effective institutional checks and limitations on the exercise of executive powers under the preceding military administration and the “carry-over” of “military personnel” into the executive (especially, the Executive President,Gen. Olusegun Obasanjo (rtd)) and the frequent resort to certain “undemocratic practices” in the operation of the 1999 Constitution.[6]

The resultant threats of impeachment of President Obasanjo by the National Assembly, for constitutional violations and “unconstitutional actions”[7] can be seen as desperate responses by the legislature to assert its independence and oversight the executive. The Senate of the National Assembly conducted investigations into the Presidency’s handling of the Petroleum Trust Development Fund (PTDF) thereby exposing several corrupt dealings of the President and the Vice President[8]that scandalized the polity and threw the whole nation into a turmoil, which was only constitutionally managed by the judiciary in several litigations[9]. These developments had negative implications for the Presidential elections of May 21 2007, and the transition of power from a civilian government, (that had successfully governed for two terms) to another civilian government.[10] At the State level Governors Alamesieagha of Bayelsa State, Ladoja of Oyo State, Dariye of Plateau State, and Fayose of Ekiti were impeached by the their State Houses of Assembly. However, the Supreme Court invalidated these impeachment proceedings of the State legislatures for non-compliance with the constitutional provisions on removal of Governor, though it was not possible for Governors Alamesieagha and Fayose to return back to office.

This paper examines the topic under the following headings: (i) Constitutionalism and the Legislative Functions; (ii) Oversight Functions of the Nigerian Legislature; (iii) Obstacles to the Performance of the Oversight functions, and finally (iv) Observation sand Conclusion.

2.CONSTITUTIONALISM AND LEGISLATIVE FUNCTIONS

The conceptualization and definition of what exactly constitutes constitutionalism, has generated a lot of debate worldwide, and particularly in Africain recent time, especially with the wave of democratization that is sweeping across the continent. One writer, Oloka-Onyango captures this controversy thus:

“For many scholars, politicians and activists, the notion of constitutionalism is one that produces numerous and often times conflicting responses. For some, especially the more positivist or legally minded-constitutionalism simply represents a concern with the instrumentalities of governance. These range from the constitution itself and other legally constructed documents that have been created to support it, the structures and institutions that are established under their framework. …… others adopt a more nuanced and embracing view, considering constitutionalism within the much broader context of the social, economic, political, gender and cultural milieu wherein those instrumentalities operate. A nicely worded or eloquently phrased document means nothing if the context in which it is supposed to operate is harsh and hostile – a context in which you may have a “Constitution without constitutionalism.”[11]

It is thus clear that African countries like Nigeria, with written Constitutions may not necessarily practice constitutionalism. However, constitutionalism has been acknowledged to be the antithesis of non-institutionalized government, where the state is a government of men and not of laws.[12]

Thus for our purpose one will proffer a descriptive conceptualization and definition of constitutionalism, to mean: a system of political arrangement that is founded and governed by a supreme law, that can only be amended by the will of the people or through their constituent representatives, in which the practice of the rule of law, separation of powers, checks and balances and good governance are observed, and the rights and development of the citizens are paramount.[13] This is a deliberate attempt to transcend the liberal constitutionalism and capture the salient feature of constitutionalism not merely as an imposition of limitation on exercise of powers, but also as a mechanism for accountable and developmental exercise of powers.

It is in that light that the exercise of the powers for the legislative functions is revealed as a key element for fostering constitutionalism in Africa, since it constitute the basis for: “enabling” the exercise of executive powers (a major threat to constitutionalism), accountability of the executive powers, and the communication of the responsive impact of executive powers on the people through their constituent representatives in the legislature.

Not only is the 1999 Constitution of Nigeria, legally supreme and the grundnorm (fonts etorigo), from which all organs of government derive their authorities and powers[14], but it is also a political charter that expresses the Fundamental Objectives and Directive Principles of State Policy that normatively expresses the aspirations of the nation.[15] The constituent representative nature of the legislature under a Presidential system as a check and counter-balance to the executive in the operation of the Constitution, constitute a veritable mechanism for the limitation and accountability of executive powers (a key attribute of constitutionalism) that is often not well appreciated.[16]

The burden of making authoritative rules, through legislations, for the Nigerian society has always been lodged essentially within the legislative jurisdiction. However, the executive’s role in the formulation of bills that are passed into laws, and the articulation of governmental policies and objects often result into clash of constituencies between the Legislature and the Executive.

The legislative power of the National Assembly consists of the 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 I of the Second Schedule to the Constitution, to the exclusion of the House of Assembly of States. And to make laws with respect to any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to the Constitution to the extent prescribed in the Second Column; and with respect to any other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.[17]

It has been observed that the legislative functions under the 1999 Constitution include the following among others:

(a)law making and policy formulation functions;

(b)oversight functions;

(c)investigative functions;

(d)the role of the watchdog of public funds, derived from the legislatures powers and duties with regard to public finance;

(e)its representative or constituency responsibilities role.[18]

In the discharge of these functions the legislature is bound to interact with the other arms of government, especially the executive, as has been the case during the first and second terms of the President Obasanjo’s administration, from 20th May 1999– 29th May 2007. Moreover, the exercise of the primary function of law-making and policy formulation often overlaps into the oversight function of the Legislature. The experience of the National Assembly in law-making especially the circumstances surrounding the passing of the Electoral Act 2001 and the Independent Corrupt Practices Commission (ICPC) Act 2000 touches upon its independence of the legislature from the executive in the performance of its oversight functions under the Constitution.[19] Consequently, it can be observed that the legislative oversight functions for a sustainable and virile democracy is inherently also subsumed in the discharge of its law-making and policy formulation functions, especially where such legislations are initiated as executive bills. The National Assembly must not allow itself to be manipulated and used as a mere rubber stamp for the government’s executive agenda. The independence of the National Assembly was most evident in its exercise of legislative power to thwart the tenure extension attempt of President Obasanjo proposed in the form of, constitutional reforms and amendments.

The eight years experience of intergovernmental relations between the executive and the legislature at the state level has been varied and impacted by various factors including the dominance of the same political party in the legislature and the executive of the state, external influence, leadership tussle, intra arm of government, among other factors. The extreme example of such conflict leading to a divided and failed government is OyoState, where the legislature was factionalized, the Governor was impeached by a faction of the legislature, and even when the impeachment of the Governor was invalidated by the Supreme Court, the legislature never functioned as an arm of government.[20]

On the other hand theOgunState experience, within the same geo-political zone of the south west with OyoState, was quite different. First under Governor Osoba Alliance for Democracy (AD) Party led government(1999 – 2003) and most recently under Governor Gbenga Daniel PDP led government (2003 – 2007) the intergovernmental relations between the executive and legislature revealed cooperative approach dictated by the predominance of one party in the executive and legislature and the effectiveness of the State majority party in conflict resolution between the two arms of government. However, the tendency towards consensus building approach to discharge of legislative powers may be read as the supremacy of the executive over the legislature, and the weakness of the legislature in asserting its independence and oversight over the executive in OgunState.

3.OVERSIGHT FUNCTIONS OF THE LEGISLATURE

Democracy as a form of governance emphasizes the logic and rationality of dialogue, debate, choice and consensus over public policies in the pursuit of the fulfillment of the needs of the citizenry and the primary functions of meeting the needs of public interest. Legislative oversight is considered an important duty in the promotion and protection of public interest.[21]

The term oversight functions, is not expressly employed in our constitutional lexicon, neither is it defined or described by the 1999 Constitution. However, it is a concept or principle that is sufficiently employed by the Constitution and as earlier discussed as an essential element of the practice of constitutionalism within the Nigerian state.

Oversight in this instance means the exercise of constitutional powers by the legislature to check or control the exercise of constitutional powers of the other arms of government, and more specifically to check or control the exercise of executive powers or to make the executive accountable and responsible to the electorate through their representatives in the legislature, in between elections. Particularly, as the executive are elected for a fixed term of 4 years under our Presidential system, and are not subject to a vote of “no-confidence” as is the case under a Parliamentary system, whereby the tenure of the ruling government can be terminated.

Oversight or surveillance of the executive and the administration is premised on the grounds that the legislature enact the laws that can create administrative agencies, and these in turn are assigned functions and responsibilities by such enabling laws. The legislature may decide to change statutory or administrative policy because, among other things, legislators may have learnt of hardships that have been imposed on the public. And if for no other reason, the legislature’s self interest demands that it oversees administration to learn whether the executive and its agencies are complying with the legislative intent[22], or the constitutional objectives and principles.

The oversight functions no doubt thus overlaps, shades into and involves the discharge of the legislative functions of law-making, watchdog of public finance, investigative functions and even constituency responsibilities. The 1999 Constitution diffuses this oversight functions in the legislative role in all its relevant provisions. For the oversight functions serves a variety of purpose: to keep the executive establishment responsible and accountable, to promote rationality and efficiency in the formulation and administration of public policy, to reap party advantage, and to advance the causes of individual legislators interest groups, and other stakeholders in the polity. Senator Ayim Pius Anyim, the then Senate President, has argued that the National Assembly’s attempts at fulfilling its constitutional roles including the oversight functions were undermined by the executive on several occasions.[23] Are there constitutional basis for the exercise of oversight powers? Were the functions discharged in accordance with the constitutional intent and provisions? And what machinery or institutions can the legislature employ to make it more effective in this role.

Several methods can be employed by the legislature in its attempts to make the executive behave and conform to the constitutional and political order. However, this political process also involve the interpretation of its constitutional powers, which may either conflict or conduce with executive scheme but must pass the test of judicial review to be valid. The constitutional basis for the exercise of the oversight functions of the National Assembly will now be examined.

3.1.Law-making

The law-making powers and procedure of the National Assembly as contained in sections 4, 58 and 59 of the 1999 Constitution (for the House of Assemble of a State Section 100), can be used steadily to control the administration and its units; especially, as executive policies and programs must have legislative budgetary backing before they can be implemented[24]. The consideration of executive/administration bills affords legislative committees the chance to inquire into the work of the agencies.

The National Assembly during the debates on and the passing of the Niger Delta Development Commission Act, subjected the executive proposals to public scrutiny thereby resulting in some important changes to the Act. However, as earlier observed, the performance of the National Assembly in passing the Electoral Act and the ICPC Act, obviously fell below the expectations of Nigerians.[25] However, the constitutional and Parliamentary procedures employed by the National Assembly and the State Houses of Assembly, which involves several readings, public hearings, legislative committees, and sub-committees’ deliberations and publicity[26], principles of limitation and checks, enhances the transparency and accountability in the exercise of governmental powers that accords with constitutionalism.

Moreover, the non-observance of the substantive and procedural provisions of the Constitution will render the exercise of legislative law-making power null and void in consonance with the supreme nature of the Constitution.[27]

3.2.Watchdog of Public Finance

By virtue of sections 80 and 81 of the 1999 Constitution it is the National Assembly that gives authorization to the President and the executive for all expenditures from the consolidated Revenue Fund. Similarly, sections 120 and 121 vest power and control over public funds of the States in the House of Assembly of a State.

Constitutionally, the “Appropriation Bill” is the basis of the Executive’s plans for running of government within the relevant fiscal year.[28] The Legislature must consider the executive’s budget and the appropriation bill passed before any money can be withdrawn from the constitutionally established funds and accounts to run government.[29] How can the National Assembly or State House of Assembly exercise its oversight power over appropriation in a way that will not interfere with the powers of the executive in establishing budgetary policies? Though the legislature makes its presence felt on occasions, however, it seldom gets high marks for budget review, which is generally regarded as the crucial test of surveillance. Clearly, the National Assembly’s handling of the budgets during the period understudy, especially 2000 and 2001 fell far below the mark.

Arising from delays and problems experienced by the President with the leadership of the National Assembly, under the then Senate President Chuba Okadigbo and Speaker Ghali Na’Abba, during the passing of the 2000 Appropriation Bill, the executive’s approach to the 2001 Appropriation Bill raised questions as to the integrity of the National Assembly and even that of the Government of President Obasanjo. Following the release of over six billion naira to the National Assembly by the President, immediately after the presentation of the Appropriation Bill 2001, the National Assembly speedily passed the bill.

Questions have been raised as to whether the legislature can introduce issues outside the subject under consideration in the Appropriation Bill presented to it? The Legislators in 2001 Appropriation Bill fixed an annual Salary of #5.5 Million each for themselves even when the Report of the Revenue Mobilisation and Fiscal Commission had fixed #1.4 Million as the President’s salary.It has been observed that the National Assembly which cannot initiate financial legislations cannot also increase the total amount of the budget beyond what is proposed in the President’s appropriation bill, though it can reduce it. Thus any increase over and above the proposed appropriation bill; should be regarded as having been initiated by the Assembly, not by the President, and therefore unconstitutional.[30]