Prof. Oyelowo Oyewo- "CONSTITUTIONALISM AND THE OVERSIGHT FUNCTIONS OF THE LEGISLATURE IN NIGERIA*
Draft paper presented at African Network of Constitutional Law conference
on Fostering Constitutionalism in Africa Nairobi April 2007
Oyewo
__________________________________________________________________
“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
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 Africa
in 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
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 et origo), 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;
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 Oyo State
On the other
hand the Ogun State
experience, within the same geo-political zone of the south west with Oyo State Ogun
State
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]
Though, it can
be said that subsequent budgetary appropriation witnessed an improved oversight
of the National Assembly, especially, the Committee Hearings and the defense of
the Heads of expenditure by the Ministries and Departments of the Government.
However, the attempts of the legislature to control just how and when the
appropriated money were to be actually spent did not meet with any noticeable
success, until the impeachment big stick was employed to soften the President.
Faced with
similar problems of budget impoundment and control, the U.S. Congress created a
Congressional Budget Office (CBO) to give Congress the meaningful staff
assistance for coordination that the Office of Management and Budget (OMB)
provide the President.[31] This is in addition to the budget committees
in each House of the Congress charged with preparing tentative budget
recommendations to be adopted as concurrent resolutions each may so furnish as
targets to guide other Congressional Committees.[32]
Interestingly,
under the 1979 Constitution, attempt by the National Assembly to pass the
National Assembly Service Commission Bill, 1980 was vetoed by the
President. This prompted the Senators to
allege that there is no meaningful separation of powers and no independence for
the National Assembly where the staff serving its members are appointed and may
be removed by the President. Though the
National Assembly Service Commission Bill was re-passed, and assented to by the
President, however, National Assembly Budget Office is yet to be established
under the 1999 Constitution, even in the light of the existence of an Office of
Management and Budget created for the executive by the Obasanjo Administration.
It will appear
that the Nigerian constitutional scheme also failed to deal with the problem of
executive transfer, reprogramming, or impoundment of funds already authorized
and appropriated, except to deal with it through the post-appropriation control
devices of auditing of public accounts by the Auditor-General and the conduct
of investigations by the National Assembly into the expenditure patterns of the
administration. Some limits have been judicially established as to whether the
constitution empowers the President to withhold or suspend any payment of
allocation from the Federation Account in any intergovernmental disputes[33].
The submission
of Audit Report 2001 on January
10, 2003 to the National Assembly by the Auditor-General Azie, and
the revealing information contained therein about the expenditure pattern of
the executive/administration, demonstrated the usefulness of the Audit Report
as an effective instrument for legislative oversight over the executive’s
dealings with public finance. No wonder
the Auditor-General Azie’s tenure was not renewed or confirmed by the
President, who claimed that he (Mr. Azie) was functioning in an acting capacity
and failed in his duties.[34]
It was, however, the opinion of the public that the harsh treatment meted out
to the Auditor-General was not unconnected to the adverse publicity and hostile
public opinion generated by the revelation of the profligacy of the government
in the Audit Report presented to the National Assembly, and made public through
the Committee Hearings on the Report. This has raised several questions as to
the role of the Auditor-General under our constitutional scheme.
Is the
Auditor-General, in the performance of his constitutional duties under section
85, duty bound to seek the consent of
the executive before forwarding the Audit Report to the National Assembly? Should it not be possible for the National
Assembly to make laws to protect the Auditor-General in the performance of his
constitutional role?
3.3. Power
to Conduct Investigations
The legislature
uses investigating committees – appropriation committee, standing committees,
ad hoc committees and various other committees – to collect and analyze
information concerning the administration of state programs and implementation
of governmental policies, as almost any aspect of government’s activities may
come under legislative examination. And the possibility of legislative
investigation doubtless contributes to administrative responsibility and
rectitude.
The Senate
Committee on Public Accounts in 2001 investigated the Nigerian National
Petroleum Corporation (NNPC), Central Bank of Nigeria (CBN), and National Electric
Power Authority (NEPA) and raised a lot of controversies on the activities of
the administrative bodies.[35] Most notable investigation of administrative
bodies was, the controversy surrounding the #2.3 billion NEPA Fund, that could
not be properly accounted for by NEPA Officials. Though there have been
accusations against members of the legislative committees for using this avenue
to procure contracts from these administrative bodies, however, the power of
investigation was employed by the National Assembly to summon most of the
Ministers and the personnel of their ministries to appear before it to furnish
them with explanations on certain major governmental policies and
activities. This was the case when the Minister
of Aviation, Dr.(Mrs.) Kema Chikwe, and the Director-General of the Bureau for
Public Enterprise (BPE) were summoned to appear before the committee of the
National Assembly on the privatization of the Nigerian Airways Limited (NAL), and
the establishment of a new national Airline.
The secret deals of the Ministry were exposed and the plans to purchase
the assets of NAL under shrouded circumstances were scuttled.
The most recent
and notorious exercise of the investigative powers of the National Assembly
into the PTDF saga, resulted into the indictment of the Vice President, Atiku
Abubakar, and the Presidency and the recommendation that they face the Code of
Conduct Tribunal for breach of trust and
abuse of office.[36]
It must be noted
that there are constitutional limits to the scope of exercise of the
investigative powers of the legislature that would be judicially enforced to
prevent its abuse[37]
3.4. Control
over Personnel
The selection of
members of the President’s executive and certain administrative personnel are
not uncommonly subjected by the Constitution to the confirmation of the Senate.[38] Under this arrangement legislative oversight
over the administration is enhanced.
However, the Senate of the National Assembly may have failed to exercise
the controlling power in any critical or proactive manner, especially, in the
procedure for the appointments of Ministers, whereby the list of nominees are
submitted by the President for confirmation without correlation to any
ministerial portfolio for purposes of analyzing their qualifications and
competence to perform on any specific job. This may substantially be due to the
preponderance of the majority Peoples Democratic Party (PDP) in the Senate,
which is also the party of the President.
Be that as it may, the failure of the legislature to dutifully discharge
their constitutional oversight function weakens the process of political
institutionalization and the entrenchment of democratic values, good governance
and constitutionalism.
3.5. Removal
Powers
The legislature’s
ultimate powers of removal of the President, Vice President, Governor or Deputy
Governor, through impeachment[39]
are scarcely meant to be employed as an instrument for discharging its
oversight functions. However, the
National Assembly called it in aid in order to check the powers of President
Olusegun Obasanjo, whether rightly or wrongly.[40]
The provisions
for the removal of the President or Vice-President from office in sections 143
and 188 of the 1999 Constitution for “gross misconduct” are arguably meant to
be used sparingly by the National Assembly or the State House of Assembly.
The events that
led up to the initiation of impeachment charges against President Olusegun
Obasanjo by the House of Representatives and the Senate of the National
Assembly[41]
reflects the inherent weakness of the constitutional crafting of the
impeachment process in the 1999 Constitution. A situation whereby section 143(11)
defines “gross misconduct” to mean “a grave violation or breach of the
provisions of this Constitution or a misconduct of such nature as amounts in
the opinion of the National Assembly to gross misconduct”, does not only weaken
the basis for initiating impeachment proceedings, but constitute the
impeachment powers as an irresistible weapon to check-mate the President
whenever, there is a deadlock between the executive and the legislature.[42]
The flagrant use
of impeachment powers by the State legislatures to settle political scores
against the Chief Executive of the State, the Governor, has been severally
subjected to judicial review by the courts. The Supreme Court in Adeleke
& OrAs v Oyo State House of Assembly[43],
taking Nigerian practice of constitutionalism to a new height by declaring the
exercise of the impeachment powers in breach of the Constitution null and void,
consequently resulting in the restoration to office of Governors who were
purportedly impeached by the legislature, may have “chilled” the inclination of
the legislature to resort to their impeachment powers to score political
points.
4. OBSTACLES
TO OVERSIGHT FUNCTIONS
There are
various factors that contribute to diminish the legislature’s concern and
capacity to engage in steady and resourceful oversight of the executive.
4.1 Constitutional
History
Nigerian’s
constitutional history has shown that the representative legislature (both its
structures and personnel) is usually abolished by successful Military coupist, whenever they subsequently
establish their Military regimes. Whilst
the executive and administrative structure of the military government get more
entrenched and expanded in the absence of any legislative body, to oversight
and check the exercise of the powers of the military administrations. Peculiarly, in Nigeria
President
Obasanjo will understandably be less tolerant of a legislature that is
perceived as being an interfering and blundering body irrespective of their
constitutional powers and role, he himself having been a Head of State and
Government of Nigeria under a previous military regime, which exercised
absolute governmental powers without any form of legislative oversight or
“interference”.
The other side
of the coin is the confusion of the
powers and role of the Military Head of State, which a former Head of
State like President Obasanjo had exercised in the past, with that of a
Constitutional Chief Executive, which he must now exercise, with
constitutionally imposed restraint of legislative oversight, amongst others. President Obasanjo was rightly accused of
being overbearing in the style of the military, and could scarcely suffer the
intrigues and politicking that goes with democratic practices.
4.2 Amateur Legislators and dearth of
Staff Aides
The presence of
amateur legislators in great number, and the shortage of staff aides due to the
lack of continuity in legislative membership, accounts for the lapses of the
legislature in the discharge of its functions.
The periods of
military interregnums necessarily meant that legislative experience became the
exception and not the rule. Little
wonder it took the National Assembly sometime to appreciate its constitutional
powers and roles. The longer the
duration of our democracy the better equipped will be our legislators and staff
aides, and the deeper will be the entrenchment of democratic values and
practices.
4.3 Absence of well established Political
Parties and Political Process
The existing
political parties, the Peoples Democratic Party (PDP), All Nigeria Peoples Party
(ANPP) (formerly APP), Alliance for Democracy (AD) and the newly registered
political parties totaling 50 parties (including Alliance Congress (AC), Labour
Party (LP), and Peoples’ Progressive Alliance (PPA) among others), are lacking
in strong ideological foundations and structures to enable them contribute
effectively to the political process.
Since all members of the National Assembly must belong to a political
party, it stands to reason that they should be subject to the discipline and guidance
of the political parties. However, this
is not the case, as the parties do not exert strong disciplinary and
supervisory control over its elected members.
Even where the
PDP was the majority party of the membership of the National Assembly, and also
the party of the national government of President Obasanjo, PDP as a party wielded
little or insignificant role in moderating the legislature/executive
relationship. Thus in periods of
confrontations, feuds and deadlocks, resort had to be made to past national leaders
to resolve such conflict, instead of the party leadership of PDP.
4.4. Personal ambition, interest and agenda
of Legislators
The leadership
of the National Assembly or the State Houses of Assembly, sometimes demonstrate
propensity for confrontation with the executive, without reflecting on the
negative impact on the national or public interest. The leadership of Speaker Ghali Umar Na’Abba
of the House of Representative and Senate Presidents Chuba Okadigbo and Anyim
Pius Anyim of the Senate epitomized the propensity to pursue some personal or
ethnic agenda in the misuse of oversight functions and powers, thereby
compromising the constitutional role of the National Assembly.
4.5. Dysfunctional Constituents
The electorate
having observed a lot of irregularities in the electioneering processes respond
with disenchantment, apathy, and lethargy towards the whole political
process. Consequently, the elected
officials do not hold themselves accountable to the electorate, even in the
face of constitutional provisions that vests the power of recall in the
electorate.
The electoral
frauds, rigging and other malpractices that accompanied the 2007 Elections into
the federal and state offices, has been accompanied by public outcry by the
electorate and civil action, such as strikes by labour organisations, public
demonstrations and condemnation by civil societies and calls for electoral
reforms and reform of the political system. It is hoped that the electorate and
various constituents will be able to assert more pressure on the various
legislatures to compel them exercise their oversight functions more
effectively.
4.6. Corruption
Corruption is
the bane of the Nigerian society, and the passing of the Independent Corrupt
Practices and Other Related Offences Commission (ICPC) Act 2000 was seen as a
positive step by the legislature in curbing the menace[44].
The National
Assembly was plagued with allegations of corruption and the resultant
compromise of their independence.
Senator Arthur Nzeribe at least confessed to bribing the leadership and
members of the National Assembly during the saga of the impeachment of
president Obasanjo, in order to dissuade them from supporting the
impeachment. The executive was also
alleged to have given money to legislators to compromise their integrity in the
discharge of their functions.
The Economic and
Financial Crimes Commission (EFCC) Act which was enacted in 2002 was re-enacted
in 2004, creating a commission with the power of coordinating and enforcing
varied but related economic and financial crimes laws. The efforts of EFCC that initially appeared
to have brought corruption into the open and under check appears to have been
compromised by the seeming selective enforcement and partisanship of the EFCC,
and its use by the executive as a tool of political brinkmanship.[45]
4.7. Adverse Legislative Environment
The large number
of legislators in the House of Representatives or the State Houses of Assembly,
tend to induce the members into compromising stands in order to be noticed or
to get the projects for their constituency noticed by the executive. Moreover, the party agenda foist upon the
legislators a less critical stance in pursuing ideas and ideals which they
strongly believed in before their elections into office. Added to these, is the obvious lack of
parliamentary infrastructure that will aid the legislators in the effective
discharge of their constitutional role.
5. OBSERVATIONS
AND CONCLUSION
The descriptive
conceptualization of constitutionalism adopted in this paper, clearly raises
the problems of governance under a constitutional democracy, a problem commonly
faced by most African States. The thrust
of this paper is to locate the legislative oversight functions as a key element
in fostering constitutionalism in Africa ,
viewed through a Nigerian prism.
Especially, as
it has been demonstrated that the legislature’s aggregate constituent
representative nature makes it most suitable to be responsive and reflective of
the sovereign popular will of the people and a veritable check and control on
executive excesses or misrule. Clearly
in the discharge of the functions of – law-making, watchdog of public finance,
conduct of investigations, control over personnel, removal powers, and policy
formulation – the legislature does not only define the scope and limits of the
exercise of executive powers thereby giving effect to the Constitution, but
also sustains the idea of the rule of law, good governance and accountability
that are the very essence of constitutionalism.
However, as has
been clearly shown by the Nigerian experience, the legislative role and culture
is at its infancy, haven been a victim of long period of military interregnum,
that took place in Nigeria and other African States, before the present
democratization processes of the 90s.
Since written Constitutions do not by themselves constitutionalism
secure, the legislature’s oversight function can be enhanced and well
articulated under a constitutional democracy to advance the rule of law, good
governance and accountability.
Unfortunately, the usually unrepresentative judiciary is more commonly
seen in this light than the representative legislature with the attendant weak
showing of constitutionalism on the continent.
In conclusion, I
dare say that, the legislature offers the symbol of representative democracy
and must function in a manner that will sustain enduring constitutional
democracy and good governance in African
States
REFERENCE
- BOOKS
1.1.O.O.
Aguda, Understanding the Nigerian Constituion of 1999 (MIJ Publishers)
2000, pp 9 – 13
Ben Nwabueze, Constitutional Democracy in Africa, Vol.1,
(Spectrum Books Ltd) 2004 chapter 9, p.243.
J Oloka-Onyango
(ed), Constitutionalism in Africa Creating Opportunities, Facing Challenges,
(Kampala
Jackson and Rosenberg,
Personal Rule in Africa, [1982], Preface, p .X.
W J. Keefe, State Legislatures in American Politics (Prentice-Hall) 1966 44 – 47.
L Tribe, American
Constitutional Law, (The Foundation Press Inc) 1988 256 – 262 at 261
- ARTICLES
Bo Li, “What is Constitutionalism?”
Sam Oyovbaire, “Legislating for Good Governance: Ethical and Political Considerations”, in
NIALS Publication (2001) I.A. Ayua & D.A. Guobadia (Eds) P.15 at pp. 16-17.
D.A. Guobadia,
“The Legislature and Good Governance Under the 1999 Constitution” in Nigeria
Pita Ogaba Agbese, “Power and Leadership in
Contemporary Nigeria
Alhaji A. Salim, “Legislative Procedure and
Process. Institutional and
Infrastructural Aspects”, in NIALS Publication (2001) I.A. Ayua & D.A.
Guobadia (eds) p.25
I.A. Ayua “Nigerian Constitutional Scheme on the
Sharing of Revenue Resources and its Implementation: An Assessment”. In Nigeria
- OTHERS
Newswatch Magazine, September2, 2002 Cover Story, pp. 12 – 19.
Daily Trust, Editorial March
30, 2007 , “Nigeria: On that PTDF
Report”@:http://allafrica.com/stories/20070330056.html
Vanguard Newspaper reports of March 26, 2007 titled “Nigeria
Tell Magazine, March 17, 2003 , 16 – 20.
Newswatch Magazine, February 1, 2003 , 45 – 46.
Tell Magazine,
February 17, 2003 ,
55.
[1] Newswatch
Magazine,April23, 2001,12.
The Daily Trust, Editorial, March 30 2007
, Newswatch Magazine, March 11, 2002 ; Newswatch Magazine, September 2,2002 , 12 – 19; Newswatch Magazine, September 9,
2002
http://allafrica.com/stories/2007
02270025.html visited 3/27/2007 ,
“Nigeria February
27, 2007 .
4
TABLE OF
CASES
Attorney-General of the Federation V The Guardian Newspapers Limited & Ors [1999] 9 NWLR
(Pt ) p.187 at pp. 249-250
(S.C).
Attorney-General, Federation [2003]19 WRN 1 at 26
Keyamo v House of Assembly, Lagos
State
Ojukwu v Obasanjo [2004] 40 WRN 72 (S.C),
INEC V Musa [2003] 10 WRN 1 at 40-41
in A-G, Abia State v A-G, Federation [2002] 17 WRN 1
National Assembly v President Federal Republic of Nigeria
[2003]41 WRN 94 (CA
Governor, Kaduna State v The House of Assembly, Kaduna State
Adeleke & OrAs v Oyo
State
El-Rufai v House of Representatives NAFRN
(2003) 12 WRN 1 (SC)
Fawehinmi v Babangida [2003] 12 WRN
1 (SC)
Togun v Oputa [2001] 49 WRN 1 (CA)
A-G Ondo v A-G Ekiti [2001] 51 WRN 29 (SC)
: Olafisoye v FRN [2005] 51 WRN 52 (SC)
FRN V
Anache [2004] 14 WRN 1 (SC)
2. The Military first seized power
from the constitutional democratic government on 1st January 1966 and handed over to
a civilian government on 1st
October 1979 . However, the military seized power again on 1st January 1984
and remained in government until 29th May, 1999 . See O.O. Aguda, Understanding
the Nigerian Constituion of 1999 (MIJ Publishers) 2000, pp 9 – 13. In Attorney-General
of the Federation V The Guardian Newspapers Limited
& Ors [1999] 9 NWLR (Pt 618) p.187 at pp. 249-250
(S.C). It was held that when the
military seize power it usurped power from the elected representatives to whom
the people of Nigerian entrusted power democratically. The 1999 Constitution restored democratically
representative governance on May
29, 1999 . See also A-G Ondo v A-G Ekiti [2001] 51 WRN
29 (SC)
4. Hereafter referred to as the 1999
Constitution. See sections 4, 5 and 6 of
the 1999 Constitution. Attorney-General,
Federation [2003]19 WRN 1 at 26, “the doctrine is to promote efficiency
in governance by precluding the exercise of arbitrary power by all the arms and
thus prevent friction. See also Keyamo
v House of Assembly, Lagos
State
7. On August 14, 2002 , Motion for the impeachment of
President Obasanjo was passed on allegations of misrule and constitutional
violations, subsequent to the President’s order for a probe of the National
Assembly, the Senators and the Representatives.
See Newswatch Magazine, September2, 2002 Cover Story, pp. 12 – 19.
8. See the following Newspaper reports
on the PTDF Scandal. Daily Trust,
Editorial March 30, 2007 ,
“Nigeria: On that PTDF
Report”@:http://allafrica.com/stories/20070330056.html. Vanguard Newspaper
reports of March 26, 2007
titled “Nigeria
10. Based on Administrative Panel Report
on the PTDF saga, the Independent National Electoral Commission (INEC)
disqualified the Vice President from standing for election to succeed President
Olusegun Obasanjo, the challenge of
INEC’s decision by the Vice President, Atiku Abubakar, in several
litigations now pending before the Federal High Court, the Court of Appeal and
the Supreme Court has raised some cloud of uncertainty on the Presidential
election.
16. Sam Oyovbaire, “Legislating for Good
Governance: Ethical and Political
Considerations”, in NIALS Publication (2001) I.A. Ayua & D.A. Guobadia
(Eds) P.15 at pp. 16-17. He observed
that: “The mould, character and process
of law-making or of public policy making
through the legislative process are not subject matters over which many
political science and constitutional law lecturers in Nigerian Universities and
research institutes or centres can claim intellectual knowledge or
authority. The literature on politics
and governance in the country is sparse and almost empty of content on the
legislature.”
Issues in the 1999 Constitution (NIALS Publication) 43 at 45-7
19. “When the Senate passed the electoral
bill majority of Senators were convinced that they were serving the best
interests of Nigeria October 29, 2000 ) and December 24, 2001 . There was so much opposition to the Electoral
Act 2001 by the Governors of the States and the Conference of Speakers of
Nigerian Legislative Houses. The Supreme
Court in A-G, Abia State v A-G, Federation [2002] 17 WRN 1 invalidated
the Act. In INEC v Musa supra, certain provisions of the
Electoral Act and Guidelines, made pursuant thereto, were also invalidated by
the Supreme Court. The National
Assembly’s attempt to amend the ICPC Act 2000 by the passage of the Anti-Corruption
Commission Act, 2003, now invalidated by the Federal High Court, clearly
lowered the esteem of that institution as a watchdog of Public Finance, to say
the least, of the negative impact of such wanton exercise of its oversight
powers through law-making. See Tell Magazine, March 17, 2003 , 16 – 20.
[20] Adeleke & OrAs v Oyo State
27. INEC
v Musa supra. National Assembly v President Federal Republic
of Nigeria [2003]41 WRN 94 (CA), where National Assembly passed a
‘motion’ for ‘veto override’ in breach of section 58(5) of the Constitution,
and the ‘motion’ was held to be unconstitutional. See also Attorney-General
Ogun State
28. Section 59 of the Constitution applies
to the passing of appropriation bills.
Section 82appliesfor the authorization of expenditure in default of
appropriation in any fiscal year, which must not exceed the amount authorized
by the National Assembly for the corresponding period in the immediately
preceding financial year.
29. This has been categorized as
pre-appropriation control. D.A.
Guobadia, “The Legislature and Good Governance under the 1999 Constitution”, supra at 48. See generally I.A. Ayua “Nigerian
Constitutional Scheme on the Sharing of Revenue Resources and its
Implementation: An Assessment”. In Nigeria
36. The Daily Trust, Editorial, March 30 2007 . “The Senate
Review Committee Report on the PTDF, Chaired by Senator Umaru Tsauni, concluded
that both President Olusegun Obasanjo and Vice President Atiku Abubakar were
guilty of breaching the laws setting up the Fund and misapplying its ample
funds. It therefore recommended and expectedly,
too, that the duo be disciplined by the Code of Conduct Tribunal. Attempts by
the Attorney General of the Federation to prosecute the Vice President through
the Code of Conduct Bureau before the Code of Conduct Tribunal were held to be
constitutionally impossible due to the immunity clause in section 308 of the
Constitution that protects the Vice President from either civil proceedings or
criminal prosecution while in Office. See Atiku Abubakar v A-G Federation
[2007] 3 NWLR (Pt 1022) 601 at 646 and 648; A-G Federation & Ors v Atiku Abubakar [2007} 8
NWLR (Pt 1035) 117 at 155.
43. http://www/nigeria-law.org.
The Court of Appeal decision on the case is reported in [2006] 52. WRN 22.
45. http://allafrica.com/stories/2007
02270025.html visited 3/27/2007 ,
“Nigeria February 27, 2007 .
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