1
Draft paper presented at African Network of Constitutional Law conference on Fostering Constitutionalism in Africa
Nairobi April 2007
Oyewo
oyewooyelowo@yahoo.com
CONSTITUTIONALISM AND THE OVERSIGHT FUNCTIONS OF THE
LEGISLATURE IN NIGERIA*
__________________________________________________________________
“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 powers3, the
1999 Constitution employed the principle of separation of powers4, as a cardinal feature
for the operation of constitutional democracy in the country.
*
1
2.
3.
4.
Professor Oyelowo Oyewo, Faculty of Law, University of Lagos, Nigeria.
Bo Li, “What is Constitutionalism?”
The Military first seized power from the constitutional democratic government on 1 st 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 29 th May, 1999. See O.O. Aguda,
Understanding the Nigerian Constituion of 1999 (MIJ Publishers) 2000, pp 9 – 13. In AttorneyGeneral 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)
Ben Nwabueze, Constitutional Democracy in Africa, Vol.1, (Spectrum Books Ltd) 2004 chapter
9, p.243.
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 [2000] 12 NWLR (Pt
) 196 at 218.
2
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 President8 that scandalized the polity and threw the
whole nation into a turmoil, which was only constitutionally managed by the judiciary in
5
6.
7.
8.
Ben Nwabueze, supra, p.245.
See Ojukwu v Obasanjo [2004] 40 WRN 72 (S.C), on the constitutional status of Chief Olusegun
Obasanjo as Military ‘Head of the Federal Military Government’ and as ‘President of the Federal
Republic of Nigeria’.
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.
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: PTDF: Group Urges National
Assembly to Impeach Obasanjo, Atiku@: http://allaftica.com/Stories/200703260530.html. and
http://allafrica.com/stories/200703260571.html.
3
several litigations9. 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,
9.
10.
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
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.
4
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.
11.
12
13
J Oloka-Onyango (ed), Constitutionalism in Africa Creating Opportunities, Facing Challenges,
(Kampala, Fountain Publishers) 2001pp 2 – 3.
Jackson and Rosenberg, Personal Rule in Africa, [1982], Preface, p .X.
See Bo Li, What is Constitutionalism: Supra.
5
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
14.
15.
16.
17.
Section 1(3) of the Constitution expressly declares its supremacy. See INEC V Musa [2003] 10
WRN 1 at 40-41; Attorney-General, Abia v Attorney-General, Federation (supra).
Attorney-General Ondo State v Attorney-General Federation [2002] 27 WRN 1; [2002] 9
NWLR (Pt 772) 222..
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.”
See section 4(2) and (3) of the 1999 Constitution. INEC v Musa [2003] 10 WRN 1 at 40-41 per
Ayoola J.S.C.; A-G, Ondo v A-G, Federation [2002] 27 WRN 1 at 105-106 per Ogwuegbu J.S.C.
6
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
18
19.
D.A. Guobadia, “The Legislature and Good Governance Under the 1999 Constitution” in Nigeria:
Issues in the 1999 Constitution (NIALS Publication) 43 at 45-7
“When the Senate passed the electoral bill majority of Senators were convinced that they were
serving the best interests of Nigeria” Newswatch Magazine, 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.
7
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, 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 the Ogun State experience, within the same geo-political zone of the
south west with Oyo State, 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 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.
20
Adeleke & OrAs v Oyo State House of Assembly http://www/nigeria-law.org. The Court of
Appeal decision on the case is reported in [2006] 52. WRN 22.
8
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 “noconfidence” 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 intent22, 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
21.
22
Ayo Akinbobola, “Political Institutionalization in Democratic Setting”. Supra 1 at 5. This has
become a feature of most modern democracies, as an implicit and inherent derivative of the
legislative powers.
W J. Keefe, State Legislatures in American Politics (Prentice-Hall) 1966 44 – 47.
9
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
implemented24. The consideration of executive/administration bills affords legislative
committees the chance to inquire into the work of the agencies.
23
24
See Newswatch Magazine, February 1, 2003, 45 – 46.
See Fawehinmi v Babangida [2003] 12 WRN 1 (SC); Togun v Oputa [2001] 49 WRN 1 (CA)
10
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 publicity26, 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
25.
26.
27.
28.
Pita Ogaba Agbese, “Power and Leadership in Contemporary Nigeria”, The Constitution Vol. 2,
No.3, 2003, 1at 8-10.
Alhaji A. Salim, “Legislative Procedure and Process. Institutional and Infrastructural Aspects”, in
NIALS Publication (2001) I.A. Ayua & D.A. Guobadia (eds) p.25.
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 v Attorney-General, Federation (1982)3 NCLR 166
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.
11
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
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: Issues in the 1999 Constitution, supra at 124- 158.
12
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.
30.
31
32
Ben Nwabueze supra pp. 263 – 270 at 264. He referred to a decision of the Kaduna State High
Court in Governor, Kaduna State v The House of Assembly, Kaduna State (1981) (unreported) to
buttress his point.
L Tribe, American Constitutional Law, (The Foundation Press Inc) 1988, 256 – 262 at 261
ibid.
13
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 disputes33.
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
33
See A-G Lagos State v A-G Federation [2005] 2 WRN 1 (SC)
Tell Magazine, February 17, 2003, 55.
34
14
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
35
36.
Newswatch Magazine,April23, 2001,12.
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
15
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
abuse37
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 impeachment39 are scarcely meant to be employed as an
instrument for discharging its oversight functions. However, the National Assembly
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.
37
38
39
See El-Rufai v House of Representatives NAFRN (2003) 12 WRN 1 (SC)
Section 147(2) and (3) of the 1999 Constitution.
See section 143 of the 1999 Constitution.
16
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
Assembly41 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 Assembly43, 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.
40
41.
42.
43.
B.A.Susu, “Impeachment Provisions of the1979 Constitution and Indirect Judicial Review”
See, Newswatch Magazine, March 11, 2002; Newswatch Magazine, September 2,2002, 12 – 19;
Newswatch Magazine, September 9, 2002
L Tribe, American Constitutional Law, 289 – 296 discusses the American experience on “The
Ultimate Remedy: Impeachment for High Crimes and Misdemeanors”.
http://www/nigeria-law.org. The Court of Appeal decision on the case is reported in [2006] 52.
WRN 22.
17
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, these past military leaders dominate
the political parties during transitions to democracies after periods of military rule.
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.
18
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
19
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 menace44.
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
44.
The Act has been judicially validated as constitutional in several cases including: Olafisoye v
FRN [2005] 51 WRN 52 (SC); FRN V Anache [2004] 14 WRN 1 (SC)
20
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
45.
http://allafrica.com/stories/2007 02270025.html visited 3/27/2007, “Nigeria: EFCC Probe – A
legislative Afterthought”, Vanguard Opinion, February 27, 2007.
21
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 and thereby foster rule of law, good
governance and constitutionalism on the continent
22
REFERENCE
1. 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, Fountain Publishers) 2001pp 2 – 3.
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
2. 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: Issues in the 1999 Constitution (NIALS Publication) 43 at 457
Pita Ogaba Agbese, “Power and Leadership in Contemporary Nigeria”, The
Constitution Vol. 2, No.3, 2003, 1at 8-10.
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”.
supra at 124- 158.
In Nigeria: Issues in the 1999 Constitution,
23
3. OTHERS
Newswatch Magazine, September2, 2002 Cover Story, pp. 12 – 19.
Daily
Trust,
Editorial
March
30,
2007,
“Nigeria:
Report”@:http://allafrica.com/stories/20070330056.html
On
that
PTDF
Vanguard Newspaper reports of March 26, 2007 titled “Nigeria: PTDF: Group Urges National Assembly to
Impeach
Obasanjo,
Atiku@:
http://allaftica.com/Stories/200703260530.html.
and
http://allafrica.com/stories/200703260571.html.
Tell Magazine, March 17, 2003, 16 – 20.
Newswatch Magazine, February 1, 2003, 45 – 46.
Tell Magazine, February 17, 2003, 55.
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: EFCC Probe – A legislative
Afterthought”, Vanguard Opinion, 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 [2000] 12 NWLR (Pt
Ojukwu v Obasanjo [2004] 40 WRN 72 (S.C),
INEC V Musa [2003] 10 WRN 1 at 40-41
) 196 at 218
24
Attorney-General Ondo State v Attorney-General Federation [2002] 27 WRN 1; [2002]9 NWLR (Pt
772)222.
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
Attorney-General Ogun State v Attorney-General, Federation (1982)3 NCLR 166
Governor, Kaduna State v The House of Assembly, Kaduna State (1981)
(unreported)
Adeleke & OrAs v Oyo State House of Assembly http://www/nigeria-law.org. The Court of Appeal
decision on the case is reported in [2006] 52. WRN 22.
A-G Lagos State v A-G Federation [2005] 2 WRN 1 (SC)
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)