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Fostering Relevant Peace and Mutual Understanding Between the Legislature and the Executive
The various versions of the Constitution of the Federal Republic of Nigeria have always been predicated on the principle of Separation of Powers. Simply put, the principle stipulates that since each of the three major organs of government i.e., the Legislature, the Executive and the Judiciary has its own separate functions clearly spelt out in the Constitution, one arm of government should not perform the functions of the other or exercise control over it. In view of the fact that the topic of this article focuses the Legislature and the Executive, an attempt has been made to concentrate more, on the dynamics of ensuring peace and mutual understanding between the two organs of government. This attempt is not to relegate the onerous duties of the Judiciary. In fact, the Judiciary is recognized as inevitable instrument for sustaining peace and understanding being propounded for the Legislature and the Executive.
In any Constitutional Democracy, the legislative and executive organs remain pivotal to the overall success of the day-to-day governance of the nation. During the Second Republic and particularly at the inception of this political dispensation under President Olusegun Obasanjo, instances of conflicts, acrimonies and controversies between the Legislature and Executive especially, at the Federal and State levels actually threatened the democratic process and corporate existence of the nation. This article begins with conceptualization followed by an examination of the constitutional allocation of powers and functions to the Legislature and the Executive. It proceeds by appraising the areas of conflicts between the two organs of government and concludes by some observations and suggestions on how such conflicts or acrimonies can be avoided in the spirit of necessary constitutional restraints and political understanding.
(a) What is Legislative Power?
Legislative power has been expressed as the law-making power. The department of government whose function is the framing and enactment of laws. It has equally be defined as the authority to make, alter, amend and repeal laws. In other words, legislative power is the authority to pass rules of law for government and regulation of people or property. In the case of Gorham v. Robinson, legislative power has been held to be the power to declare what the law shall be.
Under the Nigerian constitutional order, the legislature is merely an agent of the people which has (through the Constitution) been delegated with legislative powers to make laws for, and on behalf of the people. This is the theory which informs democratic constitutionalism that the law-maker is only an agent of the people in giving legal stamp to their collective will which is expected in turn, to bind the people.
In Roman Law, the process of legislation had earlier been attributed to the kings and the Twelve Tables (Duodecim tabulae) were considered as legislation. During the Republic Era, leges or laws which were passed by the comita and plebiscita and enacted by the concillum plebis became the popular laws of the people.
Right from the Anglo-Saxon era in England, legislation had been used to regulate the society. The Crown alone made the laws as there was then nothing comparable to the doctrine of Separation of Powers. Parliament as a specialized law-making body was a later development which was brought into being by the emergence of a large politically minded urban class, strong enough to be able to demand and obtain a role in their governance. This political development was later formalized with the evolution of the doctrine of separation of powers which has been adopted by many constitutions including those of Nigeria.
Under the Constitution of the Federal Republic of Nigeria 1999, provisions exist for the establishment of two legislative Houses at the Federal or National level designated as the Houses of Senate and Representatives. The two Houses are jointly called the National Assembly. This legislative phenomenon is called bicameralism. At the State level, constitutional provisions also exist for a single legislative House known as the House of Assembly of the State. This legislative arrangement at the State level is called unicameralism. Thus, the legislative powers of the Federal Republic of Nigeria at the Federal level are vested in the National Assembly while at the State level, such powers are vested in the House of Assembly.
(b) What is Executive Power?
In the case of Tucker v. The State, it was held that the “executive power” vested in the President or the Governor by the Constitution is the power to “execute” the laws, that is, to carry laws into effect, as distinguished from the power to make the laws and the power to interpret them. The executive organ of government under a Presidential Constitution has been described to be carrying an uncertain meaning by Professor B.O. Nwabueze who writes that:
“Executive power is indeed a term of uncertain meaning, perhaps no other term in the science of Government is so much taken for granted and yet so difficult of precise delineation.”
One, out of the three prominent organs of government in the 1999 Constitution is the executive which has the primary duty of carrying out the functions of the State and policies of the government. The real striking feature of the nature of Presidency and Governorship under the 1999 Constitution is their tremendous powers. The extent of executive powers can only be judged in the context of the restraints which the Constitution imposes upon such powers. The framers of the 1979 and 1999 Constitution of Nigeria, examined the nature of executive at both the Federal and State most appropriate for the country. Based on their experience of the conflict of authorities under the 1963 Constitution at the Federal level when the position of the Head of State was not separated from that of the Head of Government; the Sub-Committee of the 1976 Constitution Drafting Committee said that:
“There shall be a President and Vice-President of a Republic who shall be elected on the same ticket. The President shall be the Head of State and Head of Government of the Federation and Commander-in-Chief of the Armed Forces of the Federation.”
According to the Sub-Committee:
“The separation of the Head of State from the Head of Government involves a division between real authority and formal authority. The division is meaningless in the light of Africa’s political experience and history … No African Head of State has been known to be contented with the position of a mere figurehead. The experience of Nigeria, Uganda and Lesotho, testifies to this. In these countries, the system has resulted in a clash of personalities and of interests, a conflict of authority and unnecessary complexity and uncertainty in governmental relations …”
It is on the basis of the above recommendations that the 1999 Constitution stipulates that the President shall be the Head of State, Head of Government and Commander-in-Chief of the Nigerian Armed Forces while the Governor is the Chief Executive Officer or Head of Government of a State.
(c) What constitute the Idea of Fostering Relevant Peace and Mutual Understanding?
The word “Fostering” is a transitive verb in English Language which means to care for, or help the growth and development of something. To be relevant is for a thing to be connected directly with what is being discussed. The word ‘peace’ is a state of freedom from war, civil disorder or violence. It is a perfect condition or state of mind without disturbance, tension or unnecessary anxiety. By the phrase “mutual understanding” we mean the process of knowing each other and what each other is doing with love, respect and goodwill. By fostering relevant peace and mutual understanding between the Legislative and the Executive we are searching and caring for a situation where the two organs of government will continue to operate side-by-side without unnecessary tension, anxiety or disturbance; where they will have love, respect and goodwill for one another in the course of their functions so as to realize the growth and development of the nation both at the State and Federal levels. This can only be achieved if each of the two organs clearly understands the extent of its powers stipulated by the Constitution.
Allocation Of Legislative And Executive Powers Under The Constitution
(a) The National Assembly
The National Assembly consists of the House of Senate and the House of Representatives. The legislative powers of the Federal Republic of Nigeria shall be vested in the National Assembly which shall also 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 I of the Second Schedule to the 1999 Constitution. The power exercisable in this respect by the National Assembly is to the exclusive of the Houses of Assembly of States. That is to say, no House of Assembly can legislate on any matter placed in the Exclusive Legislative Lists.
Aside the power of the National Assembly to legislate on any matter in the Exclusive Legislative List, the Houses of Senate and Representatives can also legislate on any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to the 1999 Constitution and on any other matter with respect to which the two Houses are empowered to make laws by the Constitution. Section 4(5) states unequivocally that if any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and the other law shall, to the extent of the inconsistency be void.
(b) The House of Assembly
The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State. The House of Assembly shall have power to make laws for peace, order and good government of the State or any part thereof, with respect to any matter not in the Exclusive Legislative List, any matter in the Concurrent Legislative List and any other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.
It is important to note that Section 7(8) of the 1999 Constitution stipulates that the exercise of legislative powers by the National Assembly or by a House of Assembly is subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law. The National Assembly and the House of Assembly of a State are also prevented from making any law which shall have a retrospective effect in relation to any criminal offence.
(c) The Executive Powers of the Federation
The executive powers of the Federation shall be vested in the President and may, subject to the provisions of the Constitution or any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation. Such powers shall extend to the execution and maintenance of the constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has power to make laws. The President has no power to declare war between Nigeria and other nation as well as to deploy members of the armed forces on a limited combat outside Nigeria without the sanction of a resolution of the Houses of National Assembly and with due consultation with the National Defence Council respectively.
(d) The Executive Powers of a State
The executive powers of a State shall be vested in the Governor of that State and may, subject to the provisions of the Constitution and to any law made by a House of Assembly, be exercised by him either directly or through the Deputy-Governor and Commissioners of the Government of that State or officers in the public service of the State. Such powers shall extend to the execution and maintenance of the Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has, for the time being, power to make laws. It must be noted that the executive powers vested in a State under Section 5(2) of the 1999 Constitution should be exercised in such a way as not to cause the following:
(a) impede or prejudice the exercise of the executive powers of the Federation;
(b) endanger any asset or investment of the Government of the Federation in that State;
(c) endanger the continuance of a federal government in Nigeria.
Apart from the general functions of the legislature and the executive enshrined in the Constitution, notable areas of conflicts between the two organs can be ascertained from other specific assignments performed by them which are also constitutionally recognized.
Areas of Conflicts In Specific Functions of The Legislature And The Executive: How Relevant Peace And Mutual Understanding Can Be Guaranteed
(a) Enactment of Laws and their Execution
The power of the federal and State legislatures to make laws under Section 4 of the 1999 Constitution as stated earlier is not in dispute. Also, the power of the federal and State executives to execute government policies and laws under Section 5 of the Constitution and to modify certain existing law in few circumstances is not in doubt. In most cases however, the problem is how the two organs of government must adhere strictly to the limit of their constitutional powers in such a way that incidents of undue interferences should be avoided.
A typical example of an excessive legislative power trespassing into the sphere of the executive at the National level was the case of the 36 States’ Governors of Nigeria v. The National Assembly. Here, the National Assembly, in enacting the Electoral Bill 2001 made provisions for the conduct of elections into the office of Chairman, Vice-Chairman or Councillors of a Local Government Council in Nigeria thereby, extending the tenure of office of Local Government Chairmen. The Supreme Court declared the Electoral Act 2001 unconstitutional on the ground that the act of the National Assembly constituted unlawful interference with the executive function of the State Independent Electoral Commission which had the executive power under Part II(B) of the Third Schedule to the 1999 Constitution to organize and supervise such elections.
On the other hand, there were some occasions when certain executive authorities have exercised their powers to interfere with legislative spheres of authorities. For instance, precisely on Monday, October, 2001, Governor Adebisi Akande of Osun State dissolved Ayedaade Local Council over alleged financial recklessness on the part of the Council officials. Delivering his judgement at the Ikire High Court, Justice F.O. Olawoyin held inter alia that: “Neither the Governor of a State nor his Government was invested with power under the 1999 Constitution to suspend or dissolve any Council.”
Still on the issue of unlawful exercise of legislative power by some executive authorities amounting to conflict of legitimacy in some cases, the recent executive power by president Olusegun Obasanjo to sack the House of Assembly of Plateau State after the declaration of a state of emergency was another case in point. Even though the President has the executive power to declare a state of emergency, Section 320 of the 1999 Constitution does not confer any power on the President to sack the State House of Assembly. The legitimate processes of removing any erring member of a House of Assembly are by impeachment and recall as indicated in Sections 50, 109 and 110 of the 1999 Constitution respectively.
(b) Power to conduct investigations
Under Sections 88 and 128 of the 1999 Constitutions, the National Assembly and the House of Assembly of a State can carry out investigation for the purpose of enabling it to expose corruption, inefficiency or waste in the execution or administration of funds appropriated by it. In most cases, executive authorities like President, Governor, Minister, Commissioner etc. are often invited to clarify issues before legislative authorities. Experience in Nigeria has shown that this is always an area of conflict between the legislature and the executive. While the legislative authorities involved might be thinking that they were right in their actions, executive authorities whose interest have been affected might feel that the power of investigation exercised by the legislature was to ridicule them and bring their character into disrepute. It must be noted that the investigation powers of the Legislative is only limited to law-making and not executive in nature.
(c) Passage of Bills
Under the 1999 Constitution Bills on vital issues of governance are often sponsored into legislative House by various executive authorities of the State. When the Bills are passed into laws by the Legislative House concerned, it is sent back to the President or Governor for Assent. If the Bill is an appropriation one, the Legislature must pass it before the Executive can carry out its financial functions. The most common areas of conflicts in this respect is where the Present or Governor withholds his assent in signing a Bill passed by the Legislative into law and having been disturbed about such exercise of executive power; the legislative authorities involved proceed to pass the Bill into law without the consent of the executive authority concerned. In the case of an Appropriation Bill, refusal of a Legislative House to pass it into law may be seen by an Executive authority as a ploy to frustrate the administration of the State by the Executive.
(d) Monitoring the Disbursement of Funds
By virtue of Sections 84 and 125 of the 1999 Constitution, the National Assembly and the House of Assembly of a State have the power to monitor the disbursement of funds and approve remuneration of State officials. In situations where certain funds requested by the executive authority concerned are not approved by the Legislature for one reason or the other; or where remuneration for State officials are not approved, experience has shown that conflicts and controversies often arise between the two organs of government. In that situation, the legislative authority involved will argue that its exercise of such power is recognized by the Constitution while the executive organ will feel, not only slighted and embarrassed but that its financial accountability to the people has been challenged and questioned by the Legislature.
(e) Confirmation of Appointments
Sections 147 and 192 of the 1999 Constitution empower the Senate and the House of Assembly of each State to screen any person recommended for appointment as a Minister or Commissioner by the President or Governor respectively for confirmation before such appointment is made. This legislative function has always being an area of conflict between the Legislature and the Executive particularly when political consideration and the issue of federal character are introduced in the process of such appointment. Sections 231, 238 and 281 of the 1999 Constitution also mandate all appointments to the posts of the Chief Justice of Nigeria, Justices of the Supreme Court, Justices of the Court of Appeal, Attorney-General of the Federation, Chiefs of Armed Forces, Chairman Independent National Electoral Commission, members of Judicial Service Commission, Inspector-General of Police, Ambassadors, High Commissioners, Secretary to State Government, Head of Service and Special Advisers made by the President and Governors respectively to be confirmed by the Senate and House of Assembly of States.
(f) Power of Impeachment of the Legislature
A very sensitive way through which conflict of legislative and executive authorities can ensue is the power of removal or impeachment of the President or Governor by the Legislature on the ground of “gross misconduct”. A “gross misconduct” is defined in the Constitution to be a grave breach of the provisions of the Constitution or a misconduct of such a nature as amounts in the opinion of the Legislature to gross misconduct. The power conferred on the Legislature to remove the Executive is a political one, hence the Constitution clearly states that:
“No proceedings or determination of the Panel or of the National Assembly or any matter relating thereto, shall be entertained or questioned in any court.”
In the light of the above Section, it can be seen that the jurisdiction of the court is ousted from looking into the proceedings of the Legislature on the issue of impeachment. This power of impeachment, therefore, is likely to be abused by the Legislature under a Presidential System of Government since the Legislature is left with unbridled power to deal with the Executive particularly, where the House is dominated by members of a political party different from the President’s or Governor’s Party. Also, the Legislature may use it as a bate to negotiate or collect money from the Executive or compel the Executive to compromise on certain issues to protect its interest.
CONCLUSION – OBSERVATIONS AND RECOMMENDATIONS
The importance of Law in any society cannot be over-emphasised particularly in relation to the execution of governmental affairs and policies. In a country like Nigeria which is struggling to lay a solid foundation for democracy, law must be seen as a veritable instrument in the hands of the Legislature and the Executive to enhance social progress, political development and economic emancipation of the nation. Here lies the relevance of the Legislature and the Executive in the scheme of National affairs.
It is observed that under the1999 Presidential Constitution of Nigeria, the extent of powers exercisable by the President and the Governor of a State in the day-to-day administration of the government is unclear and uncertain. In fact, there is a certain instance in the 1999 Constitution where the President and the Governor of a State are empowered to modify existing laws without recourse to the Legislature. Interestingly, the Presidential Committee on the Review of the 1999 Constitution had recommended that the words “President” and “the Governor” as appear in Section 315(4)(a)(i) & (ii) of the 1999 Constitution be replaced with the words “National Assembly” and “House of Assembly” respectively to avoid conflict of authorities between the Legislature and the Executive. This leaves a lot of room for excessive use of power and executive lawlessness. In order to prevent this state of affairs, the Constitution goes further to create the Legislature and the Judiciary with their own powers as a way of making the dynamics of checks and balances more effective in the process of governance.
It is also observed that going through the provisions of the 1999 Constitution, the Legislature appears to have overwhelming control over the Executive. In other words, there is hardly anything the Executive can do without the support of the Legislature. In addition, it is equally observed in the course of this study, that a complete adherence to the doctrine of Separation of Powers cannot work particularly between the Legislature and the Executive in the performance of their functions. A final item of observation in this paper, relates to the unusual silence about the nature and importance of Legislative and Executive relations at the Local Government level.
If the Legislative and Executive arms of government must continue to be relevant in the affairs of Nigeria by performing their functions in a way to foster relevant peace and mutual understanding between them, the appropriate stakeholders and the entire people of Nigeria should ponder on the following recommendations:
(1) The three organs of government especially the Legislature and the Executive, must always remember that since their members have sworn to uphold the Constitution and defend same, their primary role should be to defend the Constitution and not allow their selfish interest to override the interest of the State and the electorate. All forms of corruption must be eschewed by members of the legislature and the executive. The recent allegations of corruption and embezzlement of public money levied against some Governors, Ministers, Inspector-General of Police and members of the National Assembly have been quite unfortunate and highly regrettable. Government at all levels must reinvigorate their war against corruption in all its ramifications.
(2) In the course of their functions as listed earlier, experience has shown that the interaction between the Legislature and the Executive at all levels of government under the 1999 Constitution has not been quite encouraging. It has been stories of conflict, witch-hunting and lawlessness. In view of the fact that democracy is a learning process all over the world, every stakeholder must be willing to learn democratic values at all times. In this connection, it is recommended that the electorate must learn how to identify competent candidates of impeccable characters to be voted for, as their legislative representatives.
(3) Impeachment process is another weapon often used by the Legislature to call the Executive to order. However, experience in Nigeria has shown that in most cases, the “gross misconduct” provisions of the 1999 Constitution as the only reason for instituting impeachment process against an erring Executive is not often used as the fundamental basis. Many at times, issues of political, social, economic and personal interests have been over-emphasised by members of the Legislature in setting impeachment process against Executive members. In order to enhance the tie of cooperation between the two organs of government for the progress of the nation, impeachment should be sparingly used by the Legislature to correct the excesses of the Executive with a view to protecting the foundation of the State.
(4) Most often, attention is paid to the issue of relevant peace and mutual understanding between the Legislature and the Executive at the Federal and State levels while little or no concern is given to the nature of relationship between the two organs of government at the Local Government level. In view of the fact that the 1999 Constitution recognizes the Local Government as the third tier of Government and considering its primary function of coordinating the activities of the people at the grass root so that there will be no gap in the operations of the State and Federal Authorities; it is recommended that legislative and executive authorities at the Local Government level must also operate on the same principles of Separation of Powers, justice and fair-play.
Above all, the matter of fostering relevant peace and mutual understanding between the Legislature and the Executive in particular must also be founded on moral, ethical and religious principles. Members of the two organs of government must maintain their sound personalities and not allow any selfish socio-economic and political interest to wreck the dignity and worth of their human persons. They must have respect for others and treat them, as they would want to be treated. This is the only way to sustain the principle of sic utere tuo ut alienum non-laedas. Both the Holy Bible and Quaran preach love for one another. Without LOVE, it will be difficult if not impossible for members of the three organs of government especially the Legislature and the Executive to work together for the benefit of the people and the overall progress of the nation.