THE STATE LEGISLATURE IN NIGERIA DEMOCRACY:
A PAPER PRESENTED BY SENATOR ANYIM PIUS ANYIM AT
THE OCCASION OF THE SECOND YEAR ANNIVERSARY OF
THE 4TH HOUSE OF IMO STATE HOUSE OF ASSEMBLY
HOLDING AT THE ASSEMBLY CHAMBER
THIS DAY, 29TH DAY OF JUNE 2009.
The Essence of Government is the Trinity of Powers and INTRODUCTION: Not too long a ago, precisely, on the 12 of November Separation of 2008, I was privileged to present a paper titled the “Constitutional Powers is a hall Power of The Legislature and Executive – Legislative Interrelationship”. Mark of This was the occasion of the 2008 edition of Senate retreat held in Kano. I Democracy-remarked in that occasion that the topic was relevant because we are SENATOR practicing constitutional government.
In discussing the legislature within the context of democracy today I would wish that we take one minute to verbally express our thanks to God for democracy. | became whom I am today in my country because of democracy and so are you all. We are in the confines of this hallowed chambers discussing the legislature today because we are in a democracy.
In the absence of democracy, two systems of government had held sway in Nigeria i.e:
1. Oligarchy: This is a form of government where only a small group of people hold all the powers, examples of this include the regime of Kings, Feudal Lords etc. The transition of power from one regime to the other is in most cases hereditary, there is usually no separation of powers. The implication of this is the total absence of a separate legislative arm as both the executive, legislative and even the judicial functions are exercised by the same person(s).
2. Military dictatorship – since the military coup detar of 1966 in Nigeria which ousted the democratically elected government of Dr. Nnamdi Azikiwe and Alhaji Tafawa Balewa, military rule had maintained a political dark sport in our body politics. The high point of military dictatorship is usually the abolition of the legislative arm of government. The implication of this is the dismantling of the will of the people by a small group of people whose strength and qualification laid in the possession of fire arms.
This is an aberration in every civilized society. I therefore thank God that in the last 10 vears. in our country that we have enioved an uninterrupted democratic governance.
Democracy is most popularly defined as government of the people by the people and for the people. Abraham Lincom former president of America once said, I quote “NO BODY IS GOOD ENOUGH TO RULE THE OTHER WITHOUT HIS CONSENT”, I shall in this paper highlight the fundamentals of democracy within the relevancy of consent in legitimizing democratic actions.
The most critical issue in Democracy is that whoever acts in any capacity for another must have the consent of that other person before you act for him i.e. If you want to represent me, you must obtain my consent. If you want to speak for me, you must do so with my consent.
In view of the above, and given the complexities of modern society, representative democracy had become not only a form but an imperative Representation therefore has become a hall mark of democracy. Infact without the people’s representative, there is no democracy.
My dear colleagues, the representatives of the people must not only act or speak for the people but must compel other democratic actors (i. the Executives) to act or speak only with the consent of the people. This is why executive actions are subject to legislative scrutiny. At this juncture, make bold to say that over and above the constitutional responsibility of the legislature, you have a duty in democracy to enforce this most critical and fundamental element in democracy ie that whoever purposes to act for the people must first and foremost obtain their consent.
For purposes of clarity, this consent is not a one off thing – it is a continuous thing that arises at every stage a decision affecting the people is made. Consent to assume office through fair electoral process, consent to spend public money for public good through budgetary approvals by he legislature, consent to appoint an unelected person to positions of public responsibility through legislative confirmation of appointments. Furthermore the legislature monitors this consent through oversight functions.
In most democratic governments the functions of the legislature are constitutionalised. The constitution as the basic law, alongside other laws brings in the second most important fundamental to democracy ie the rule of law. The law guides the conduct of all and infact is believed to be above all. It is the instrument of society to maintain order and good governance.
Again it is the responsibility of the legislature to make laws. The structure and process of law making in itself also implies the securing of the consent of all.
The legislature therefore is the pillar of democracy without the legislature, there is no democracy. Mr. Speaker, Hon. Members of Imo State House of Assembly, distinguish ladies and gentlemen, may I note here that anytime there is a breach of the essential elements of democracy i.e
1. Inability to secure the people’s consent
2. Inability to observe the rule of law,
The impact is usually devastating on the polity. For instance, it has been established that while fraudulent electoral process ambushes democracy, inability to secure at any stage necessary consents of the people defaces democracy and unwillingness to observe the rule of law aborts democracy.
THE LEGISLATURE: GROWTH AND DEVELOPMENT IN NIGERIA
In order to make a fair attempt in doing justice to the topic of my speech this morning i.e. the State Assembly in Nigeria Democracy, I shall try to trace the history of the legislature in Nigeria up to 1979.
I hope to treat the legislature in Nigeria Democracy from 1979 till date separately in order to give it the prominence it deserves. I shall thereafter attempt to discuss the State Legislature with emphasis on its powers and functions.
THE LEGISLATURE BEFORE 1979
All the constitutions drafted since 1922 have made some efforts to accommodate the legislature as an arm of government in Nigeria. Before 1922, the annexation of the Lagos colony in 1861 had in its structure the establishment of a ten-man advisory body as its legislative council. When the colony was merged with the South, in 1906, the power of the Lagos Council was extended to legislate for the entire Southern Protectorate.
But in 1914 when the Northern and Southern Protectorate came together the power of the Lagos Council was still limited to the Southern Protectorate. However the Nigerian council was established in 1917. The purpose of the council according to Dr. Anyanwu was to consult the locals and foreign commercial and mining interests on the subject of legislation.
The Clifford Constitution of 1922 brought a lot of reforms into the legislative arm of government in Nigeria. It was the first Nigerian constitution to establish a legislature that derives its powers completely from the constitution. Anyanwu noted that, it is the “first constitution that produced the first elected legislature in Africa.” However, the major highlight of that constitution was the introduction of the “elective principles” in Nigeria. Accordingly, for the first time, the four unofficial members of the 30 man council were elected by direct electoral process. Meanwhile, the Richard constitution of 1946 which improved on the Clifford constitution was the first to make provision for Regional Legislature in Nigeria.
The major functions of these Regional bodies included the presentation of nominees for the legislature at the centre. The structural metamorphosis of the Nigerian state also gave rise to the Macpherson constitution of 1951. This constitution assigned legislative authorities on certain matters to the Regional Councils for the first time.
The independence of the legislature came with the Lyttleton constitution of 1954 that brought federalism to Nigeria. With the federal arrangement under this constitution the principal of independent regional legislature was introduced. Accordingly, the scope of authority of the Regional houses was spelt out and this ended the process where Central Legislature passes directives to Regional Houses.
Before this time, the legislature was dominated by people designated as official or special members but the Lyttleton constitution provided for direct election from the Regions to the centre. More importantly, this constitution provided for the first time, exclusive, residual and concurrent legislative lists between the Central and Regional legislative Houses.
The country’s Independence constitution retained part of Lyttleton constitution. The legislative list was still split into the exclusive and concurrent with Regional Assemblies legislating also on residual matters not included in the two lists. And where there was a conflict between the Regions and the Centre, the legislature at the centre prevails. Despite the changes from Independence constitution to Republican Constitution in 1963, the institutions of government did not witness major changes as federalism was still maintained. But the high point of the 1963 constitution was the introduction of complete political independence to Nigeria. By this constitution the role of the British Monarch in the country’s parliamentary process came to a final end.
Between January 1966 and 1979, the place of legislature in the system of government in Nigeria was put in abeyance. This was the period of military incursion in the administration of the Nigeria state. Decree 1, of 1966, enacted by the military conferred unlimited legislative powers on the military hierarchy who controlled the affairs of the state. Within the military regimes, some major structural changes took place in Nigeria. On May 27, 1967, the regime of General Yakubu Gowon created the twelve states structure out of the four Regions. Murtala Mohammed who took over from Gown later created additional seven states bringing the number to nineteen. Ibrahim Babangida added eleven while San Abachi created more six to bring the number of states in Nigeria to thirty six. It is important to note that as more federating units emerged so were legislative Houses and we can say today that Nigeria has one bi-cameral hational legislature and thirty six state Houses of Assembly.
THE LEGISLATURE: 1979, 1989 AND 1999 CONSTITUTIONS
Again for the purpose of our lecture today, another great significance of the 1979 constitution is that it was under this constitution that a legislative House was for the first time in Nigeria called STATE HOUSE OF ASSEMBLY.
The Hon. Speakers, my colleagues – members of the Imo State House of Assembly distinguished audience, our discussions today shall henceforth, focus on the provisions and practice of the legislature under these three
constitutions but more particularly under the 1999 constitution being not only the latest but also the one in force.
I shall treat these three constitutions as one, principally because they were all presidential constitutions and the noted difference does not affect the topic of our lecture today.
For the purpose of this lecture, it should be highlighted that the 1979 constitution was greatly significant. It departed from the hitherto parliamentary system of government which to a large extent was not very fertile for the growth and development of the legislature. The 1979 constitution introduced, the presidential system of government which clearly spelt out the principle of separation of powers.
Distinguish ladies and gentlemen; the principle of separation of powers is no doubt the foundation of modern legislative practice in Nigeria. Permit me therefore to explore to some depth, intent and beauty of this principle. The principle of separation of powers also known as Trias Politics was first propounded by a French scholar named Baron de Montesquieu. The high point of this principle is the need not to allow absolute power at the disposal of one man or a small group of persons.
This principle proposed that the Executive, Legislative and Judicial powers of the state should be vested in different persons/institutions with defined powers and functions. It is believed that, the three arms of government should function better and more responsibly if their powers and responsibilities are distinct and checked by each other.
In practice, separation of powers among the three arms does not function in absolute terms. According to Prof. Nwabeze:
“The checks and balance system rests on an open
recognition that particular functions belong primarily to a
given organ while at the same time superimposing a power
of limited interference by another organ in order to ensure
that the former does not exercise its acknowledged
functions in an arbitrary and despotic manner”.
As can be seen from the above, the idea of separation of powers does not intend to generate war or disunity among the arms of government but is intended to check the excesses of each other in the discharge of their functions. In other words, it is intended to curtail arbitrariness or if possible remove it completely in the exercise of all official functions of the state. It is believed that though government is set up to protect individual rights, the citizens rights may be at greater risk if one man or group of “absolute persons is allowed to exercise all the powers of the state. Infact, power” they say corrupts according to montesquiuc “when the law making and law enforcement “absolutely” powers are united in the same person… there can be no liberty”.
Hon. Speaker, I want to say at this juncture, that though there are three arms of government under this principle, there is still one government that must work together to deliver democracy dividends to the people. I believe that the recognition of the fact that each arm of government plays a vital role in sustaining true democratic principles and in the delivery of real dividends of democracy e.g. guaranteeing the fundamental rights of the citizens will broaden our shoulders to accommodate each other as partners in progress.
Disagreements on points of law should not be regarded as confrontation but rather be tested in the courts as a way of strengthening our democratic culture. Sharing my experience on the interrelationship between the legislature and the executive, I observed in my validitory address as follow:
“Instability in any arm of a democratic government is a treat to the
entire system. Let me venture to say that in a system like ours
where we have had a long culture of executive government and in
particular where the executive is the only source of patronage in a
poverty – ridden society, the executive, has in addition to its duty
of providing roads, light, 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 does not develop and
grow concurrently, democracy cannot be sustained.”
Distinguish ladies and gentlemen, I make bold to say that the greatest challenge of the legislature under the 1999 constitution is the unwillingness of the Executive to recognize that the legislature is their equal partner in governance. As a result of this, legislative Houses both at the Federal and State levels have been incapacited from performing their functions. The spate of executive induced impeachment of presiding officers since 1999 paints a clear picture of the level of instability in those Houses. A few examples will surfices, recently in Niger State, the House of Assembly, swore in three speakers in one week. In my validatroy address, I capture the situation during my time as follows:
“In Enugu State the present speaker is the fourth, in Imo the
present speaker is the third, in Bayelsa the present speaker is the
second; in Abia the present speaker is the second, so are
Anambra, Adamawa, Benue, Cross River and Borno. In the House
of Representative. Hon Ghali Naabba is the second speaker while
my humble-self is the third senate president. During this period
impeachment of a presiding officer was seen as democracy in
action but any attempt on a chief Executive was seen as
democracy under threat”.
Distinguish ladies and gentlemen, before I step further to discuss the specific functions of the State Houses of Assembly under the 1999 constitution, may I appeal to all political actors to join hands together to deepen the culture of tolerance in our democracy, for this is the only way we can sustain our democracy. Let me emphasis that democratic progress is not measured by the amount of physical development achieved but by how much democratic institutions e.g. the parliament and democratic infrastructure e.g the rule of law are strengthened.
I make bold to say that one of the most important democratic institution in Nigeria today is the legislature. This however, does not contemplate reckless legislature. According to Bill Clinton a former president of America – “in the constitutional system, the legislature provides a check and balance to the executive, but it must also be a source of creative, responsible leadership, for in the end work must be done and progress must be made”. My colleagues a word is enough for the wise.
THE STATE HOUSE OF ASSEMBLY: POWERS AND FUNCTIONS.
As I have noted above, the State House of Assembly is a creation of the By this no state constitution i.e secton 90 of the 1999 constitution provides – there shall is permitted to be a house of Assembly for each of the state of the Federation have a bi-cameral Having so created the State House of Assembly the constitution goes legislature further to vest it with powers and functions. We may briefly highlight some of their functions under the following sub-headings
A. MINIBUS POWERS TO MAKE LAWS FOR THE STATE.
Section 4 (7) The house of Assembly of a state shall have power to make laws for the peace, order and good government of the State or any part By this, the thereof with respect to the following matters that is to say-legislature lays
(a) any matter not included in the Executive Legislative List set out in Part 1 of the Second Schedule to this Constitution; the foundation for good
(b) any matter included in the Concurrent Legislative List set out in the first column of Part I of the Second Schedule to this constitution to the extent prescribed in the second column opposite thereto; and any other matter with respect to which it is empowered to make laws in accordance with the provisions of this constitution
POWERS FOR CREATION OF STATES
It had being the attitude in Section 8 (1) An Act of the National Assembly for the purpose of creating many states to a new State shall only be passed if-members of the NASS as a request, supported by at least two thirds majority of members (representing the area demanding the creation of the new State) in each of the following, namely – aliens to their States.
You can see (i) the Senate and House of Representative that without a collaborative (i) the House of Assembly in respect of the area and relationship with them. (in) the local Government council in respect of the area, is received by the National Assembly many issues of importance to the state will the result of the referendum is then approved by a simple majority of all the States of the Federation supported by a simple majority of members of the Houses of Assembly;
C. POWER FOR STATE BOUNDARY ADJUSTMENT
Erroneously many believe that state creation is the Section 8 (2) An Act of the National Assembly for the purpose of prerogative of boundary adjustment of any existing State shall only be passed if – the NASS alone. It can be
(a) a request for the boundary adjustment, supported by two-thirds majority of members (representing the area demanding and the area affected by the boundary adjustment) in each of the following, seen that the state House of Assembly is central in the process.
(i) Senate and the House of Representative the House of Assembly in respect of the area, and
(b) a proposal for the boundary adjustment is approved by
(i) a simple majority of members of the House of Assembly in respect of the area concerned
D. POWER TO CREATE LOCAL GOVERNMENT
Section 8 (3) A bill for a Law of a House of Assembly for the purpose of creating a new local government area shall only be passed if-a request supported by at least two thirds majority of members (representing the area demanding the creation of the new local government area) in each or the the House of Assembly in respect of the area, and
(il) the local government councils in respect of the area is received by the House Assembly.
POWER TO ADJUST LOCAL GOVERNMENT AREA BOUNDARY
Section 8 (4) a bill for a Law of a House of Assembly for the purpose of boundary adjustment of any existing local government area shall only be passed if- the House of Assembly in respect of the area, and the local government council in respect of the area, is received by the House of Assembly; and
(b) a proposal for the boundary adjustment is approved by a simple majority of members of the House of Assembly in respect of the area concerned.
POWERS TO AMEND THE CONSTITUTION
S.9 (2) states that An Act of the National Assembly for the alteration of this constitution, not being an Act to which section 8 of this constitution applies, shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by the resolution of the Houses of Assembly of not less than two thirds of all the states.
9(3) An Act of the National Assembly for the purpose of altering the provision of this section, section 8 or chapter IV of this constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than four-fifths majority of all the members of each House and also approved by resolution of the Houses of Assembly of not less than two-thirds of all the states.
POWER TO LEGISLATE FOR MAINTENANCE OF PUBLIC SAFETY AND PUBLIC ORDER
S.11 (1) The National Assembly may make laws for the federation or any part thereof with respect to the maintenance and securing of public safety and public order and providing, maintaining and securing of such supplies and services as may be designated by the National Assembly as essential supplies and services.
11 (2) Nothing in this section shall preclude a House of Assembly from making laws with respect to the matters referred to in this section, including the provision for maintenance and securing of such supplies and services as may be designated by the National Assembly as essential supplies and services.
POWER OVER APPROPRIATION
S. 120 (20) No money shall be withdrawn from the Consolidated Revenue Fund of the State except to meet expenditure that is charged upon the Fund by this constitution or where the issue of those moneys have been authorized by an Appropriation law, Supplementary Appropriation law or law passed in pursuance of section121 of this constitution.
S.120 (3) No moneys shall be withdrawn from any public fund of the state, other than the consolidated Revenue Fund of the state, unless the issue of those moneys has been authorized by a law of the House of Assembly of the State.
5.120 (4) No moneys shall be withdrawn from the Consolidated Revenue Fund of the State or any other public fund of the state except in the manner prescribed by the House of Assembly.
POWER TO ESTABLISH CONTINGENCY FUND
S. 123(1) A house of Assembly may by law make provision for the establishment of contingencies fund for the state and for authorizing the governor, if satisfied that there has arisen an urgent and unforeseen need for expenditure for which no other provision exists to make advances from the fund to meet the needs.
POWER TO CONDUCT INVESTIGATIONS (oversight functions)
S.128 (1) Subject to the provisions of this constitution, a House of Assembly shall have power by resolution published in its Journal or in the official gazette of the government of the state to direct or cause to be directed an inquiry or investigation into The power of oversight function noted above is;
(a) any matter or thing with respect to which it has powers to make laws.
(b) the conduct of the affairs of any person, authority, ministry or government departments charged or intended to be charged with the duty of or responsibility for.
li) executing or administering laws enacted by that House Of Assembly, and important to curtail arbitrariness or perversion of the peoples will and so must be
(Hi) disbursing or administering moneys appropriated or to be appropriated by each House exercised win
(2) The powers conferred on a House of Assembly under the provision of this section are exercisable only for the purpose of enabling the House to- of patriotism.
(a) make laws with respect to any matter within its legislative competence and correct oversight any defects in existing law and
(B) expose corruption, inefficiency or waste in the execution or administration of laws| (a) and (b) within its leqislative competence and in the disbursement or administration of funds appropriated by it.
Distinguished ladies and gentlemen, a careful review of the above powers and functions of the State Houses of Assembly will lead to the inevitable conclusion that while the State Assembly is constitutionally positioned to ensure peace, progress and order in the state, it also provides a check on the National Assembly in the exercise of its functions with respect to critical national issues.
I make bold to say that it is obvious from the powers and functions of the State Assemblies as highlighted above that democratic progress in Nigeria depends on the efficiency and effectiveness of the State Assemblies.
I thank you all…