CONSTITUTIONAL POWER OF THE LEGISLATURE
AND EXECUTIVE – LEGISLATIVE
A PAPER PRESENTED AT THE 2008 EDITION OF SENATE
RETREAT AT TAHIL PALACE HOTEL KANO,
NOVEMBER 12 2008, BY SENATOR ANYIM PIUS ANYIM
At the 2007th edition of the Senate retreat in Port-Harcourt, on the paper titled, “THE ROLE OF NATIONAL ASSEMBLY IN DEMOCRATIC GOVERNANCE”, I itemized the powers of the National Assembly under the constitution as to capture its role in democracy.
Distinguished Senators, in discussing the CONSTITUTIONAL in the paper, POWERS OF THE LEGISLATURE AND EXECUTIVE- the term LEGISLATIVE INTER-RELATIONSHIP with you today, I will Legislator refers to the resist the urge again to itemize the so called constitutional powers of National the Legislature. I choose to differ from this approach because I do not Assembly as flow with the school of thought that believes that the challenge before symbolising the the polity and in indeed the Legislature today is about locating their Legislature constitutional powers or even enforcing them.
I am of the opinion that it will amount to over laboring the issue at this point in our democratic experience for the Senate to still expend energy on the elementary issue of its powers under the constitution. This is because the challenge at hand is not just the inadequacy of the constitutional provisions but the obvious inability of the constitution to withstand abuses. Rather than dissipate efforts on what is the legislative powers in the constitution, I implore you to explore all avenues that would empower our people to protect the constitution so that it can deliver on the powers it already possesses.
Let me state here that, if the ordinary man in our country cannot beat his chest like Barack Obama to say “if there is anyone out there who still wonders if the dream of our founders is alive in our time, who still questions the power of our democracy” ” let that person come and behold the working of our Democratic Institutions, then the legislature should not by any means talk about actualizing its constitutional power.
This particular topic is being discussed today because we are running a constitutional government with various arms which is in line with the age long democratic principle of Separation of Powers. Such arms of government include the Legislature, the Executive and the Judiciary. However for the purpose of this paper, emphasis is placed on the Legislature/Executive interrelationship and its benefit or adverse impact on governance. According to Prof. B.O.Nwabueze “Constitutional government connotes a governent defined, regulated and limited by a constitution, written or unwritten, and limited not just in a conventional or political sense but as a matter of law, with all its coercive forces”
It may be necessary to emphasis that the constitution in this sense is seen as the legal grundnorm from which all authorities and persons derive their powers. In Nigeria, S.1 (1) of the 1999 constitution provides that:
“this constitution is supreme and its provisions shall
have binding force on all authorities and persons
throughout the Federal republic of Nigeria”
Distinguished Senators, it is under this constitution that the Legislature is not only created but its powers are specified just as the Executive also derives its existence and powers from the same constitution. The constitution goes further to share responsibilities in Sec 4(1) saying that:
“the Legislative powers of the Federal Republic of Nigeria shall be vested in the National Assembly of the Federation.
In the same vein, Sec 5(1) states that:
“Subject to the provisions of this constitution, Executive powers of the Federation shall be vested in the President”
While Sec 6 (1) concludes that:
“The Judicial Powers of the Federation shall be vested in the Judiciary”
It is important to note here that the constitution recognizes only one government for the federation with different arms all functioning together to achieve one goal – i.e. good government of the Federation. But the spirit of this provision is such that each arm must perform specific functions under the constitution as its own integral contribution towards the delivery of good governance to the Federation.
Accordingly, the constitution in Sec 4 (2) still Provides that:
“the National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive legislative list”
while Sec 5 (1) & (b) also added that
“the executive Powers of the Federation shall extend to the Execution and maintenance of this constitution, all laws made by National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws”
Looking closely at the above provisions, you can agree with me that the relationship between the Legislature and the Executive is like that of husband and wife who married with sole aim of making a home. Both have various functions in the project but in achieving the main goal one starts the act, the other perfects it. However, there can be occasional debate on who is the boss or who has a superior right in the home.
The inference from the above therefore is that for us to have good governance, we have to recognize the indispensability of the various arms of Government as well as their mutual interdependence, meaning that none is superior to the other and none can do without the other. As we have noted, while the Legislatures prescribe the law the Executives activate it by giving consent for it to assume effect. Indeed the Executive gives impact to the law through execution.
The need for the Legislature/Executive intercourse for the delivery of good governance cannot be overemphasis. Infact Sec 13 of the 1999 constitution put the expectations this way;
“it shall be the duty of and responsibility of all organs of This sections government, and of all authorities and persons, exercising deals with the legislative, executive or judicial powers to conform to observe fundamental objectives and and apply the provisions of this chapter of this Constitution”
directive principles of State policy. Accordingly may I ask:
How far has the constitution been able to uphold the fundamental objectives and directive principles of the Nigeria state policy?
How far has the constitution uplifted the expectations of the people?
How far has the constitution upheld or deepened our democratic ideals?
I must remark that the duty to deliver good government for the federation is a collective responsibility. The mark is missed here when some Chief Executives see the government as their own to the exclusion of the legislatures.
I am of the view that why the constitutional powers of the legislature are still an issue today is because of the inability of the executive arms of government to recognize that the legislature has constitutional rights, that must not be subjugated if the nation must have good governance. There may not have been much disagreement on the power to make laws but there have been serious contention on such powers as oversight functions, the power over budget etc. perhaps the most dangerous threat to our fledgling democracy today is the dichotomy between the Legislative and the Executive arms of government.
This mutual suspicion presents itself from various dimensions. One of such dimensions is the dichotomy between the federal legislatures and their State Chief Executives and on the other hand between the National Assembly and the President or the State Assembly and their Governors. I must confess that during my tenure as President of the Senate, this was a major challenge. During that time whenever a presiding officer of the Legislature was impeached, it was democracy in action, but whenever the impeachment of any member of the Executive was on the table for discussion, it was democracy under threat.
In my valedictory address, I captured my experiences this way, “In a system like ours where we have had a long culture of Executive government and in particular when the executive is the only source of patronage in a poverty ridden society, the Executive has in addition to its duty of providing road and water etc the overriding duty to protect the other arms of government in the interest of the system.
This is because if the three arms of government do not develop and grow concurrently, democracy cannot be sustained”
May I sincerely thank God that the turbulence in the relationship between the Executive and Legislature which was a common feature in the past has largely abated. According to Prof. Jerry Gana in a lecture marking the 60 birthday of the Senate President, Senator David Mark,
“the most important cause of the turbulence between the
Executive and the legislative arms of government is love
of power without accountability, and failure to respect
I cannot agree less with Prof. Gana, because in most cases the causes of this dangerous suspicion has been proved to include:
– Fears of interference of members of one arm with the affairs of the other
Fears that if one is allowed to get strong, this influence may affect the second coming of the other The desire to assert in clear terms that the government belongs to the Chief Executive and so his being in charge must not be challenged.
Constitutionalism (constitutional government) transcends agitation for rights. It concerns settled rights that cannot be denied or abused and anything to the contrary will amount to a slap not only on the face of the society but will also constitute a major threat to the foundation of the society. Let me therefore emphasis that Constitutionalism must supersede parochialism to be able to enthrone genuine patriotism and such spirit of patriotism must override selfish tendencies and other biases in order to enhance the principle of rule of law. The practice of rule of law is the substance of Democracy and unless we achieve this, whatever powers anybody or institution may have under the constitution may not be better than a promise on a toilet paper.
In conclusion, may I remind everyone of us once more that the strength of our constitution cannot be measured correctly by mere judicial pronouncement but by the determination of the people to enforce the fundamental wellbeing of society and the resolve of the leaders to submit to the wills of the people in the overall interest of the society.
I must also say that it is this battle of superiority between the Legislature/Executive that has brought into our system such ugly features as God-fatherism as to guarantee loyalty Disregard to constitution as to show superiority Elevation of mediocrity as not to allow opposition Superiority contest involving unnecessary financial muscling etc
I am inclined to think that resolving by whatever means this dangerous dichotomy between the Legislative and the Executive arm is the only way to save our young democracy and I charge the legislature as a the symbol of democracy to devote all they can to lead the crusade for a better understanding between the Executive and the Legislature. In doing this, the principle must be that power belongs to the people and that the rule of law is the only guarantee to justice and better society for all.