Excerpts from the paper delivered by Rt. Hon. Dr. Ali Ahmad, Speaker KWHA at the Prof. Epiphany's Maiden Annual Lecture Series held in Abuja.
Titled : (The legislature in emerging democracies : Challenges and Prospects)
Of all democratic institutions, the legislature is the most visible for effective functioning of the democratic process. A government (with a benevolent executive and blooming judiciary) without a legislature is something but not democratic. So it is fair to state that there can be no democracy without the legislature.
Issues have always been raised about our obsession with democracy if countries like Dubai would attain the level of developmental heights envied by everyone without any pretence of being democratic. One way to view this is to ask whether Dubai is the rule of the exception. Whichever it is, democracy is merely a tested process of exercise of governmental powers, it does not guarantee a Dubai-like development. As a process, what it guarantees is long-term, predictable exercise of power by a class of rulers for a common good and who are not able to be tyrannical even if they want to.
If we still lack progress and good governance in Nigeria despite the fact that similar countries like Singapore have achieved a lot, we should blame not democracy, indeed blame less our leaders, but blame more the people, for with them belongs the ultimate power in a democracy.
But it must be said from the outset that in spite of the cardinal principle of separation of powers and strong constitutional provisions to that effect, not a single executive arm of government anywhere in the world, not even in developed democracies, wants a strong and stable legislature.
Thus, apart from being the major difference between a dictatorship and a democracy, the legislative arm, where it is strong and stable, has become the primary scale to measure the level of development of a nation’s democratic experience.
In Nigeria, the legislature, for the right and wrong reasons, is gleefully subjected to ridicule and condemnation on a daily basis, to the delight and amusement of the executive arm. For the wrong reasons because the public is less familiar with, and appears uninterested in, the legislative process and functioning. For the right reasons because some but not all legislators truly earn the opprobrium visited on them. The difference is that while some members of the executive are isolated for condemnation and insult when they misbehave, the misdemeanour of a single legislator is always visited on the entire federal legislature which comprises of 474 very different and diverse individuals.
it is clear that where there is a conflict between exercise of legislative power by any arm of government and the legislature, that of the legislature prevails. In other words, with regards to lawmaking the legislature is supreme.
Of all the three arms of government in Nigeria, the judiciary is reputed to be the most protective of its powers. It guards its judicial powers with extreme jealousy, frowning at any pretence by other arms, especially the legislature, to exercise such power.
Nigerian courts uphold judicial immunity, they strike down legislative immunity on the basis that it constitutes an ouster clause.
In Nigeria, two methods have been used to undemocratically neutralise the power of the legislature. It is either through the judiciary or by violence. An example is when legislature was shut down and teargas was used on legislators during the First Republic.
Even then use of force, as we have just indicated, is not as widely used in Nigeria for power neutralisation as is the use of courts to achieve that purpose. Sadly, the Nigerian judiciary has allowed itself to be used undemocratically to neutralise exercise of power by the legislature. The courts are happy to issue interlocutory orders stopping the legislature from performing its constitutional functions of investigating or sitting or even voting in one manner or another!
Undoubtedly, the courts have unfettered right to declare null and void the result of any investigation or any proceedings or any manner of voting of result thereof, what courts in developed democracies do not do is attempt to stop the action of a whole arm of government, in this case the legislature, from exercising its constitutional powers.
The only justification that the Nigerian courts rely upon to neutralise legislative power is that not doing so will, in their estimation, amount to ousting the jurisdiction of the court and, the reasoning goes, this is contrary to the provisions of Section 6(6) of the Constitution as amended.
The British Normandy-era or Europe Enlightenment-era courts and judges never extended the province of "inherent powers of sanctions of a court " to issue interim orders stopping a parliament from commencing or concluding its work! More importantly, I am yet to stumble on a case in the United States of America where a court granted an interim order stopping the Congress from exercising its powers.
It seems to me that we have pushed the province of the "ouster clause" and "inherent powers of the court" too far in Nigeria to scuttle exercise of constitutionally guaranteed power of the legislature in a manner that has wrecked havoc on the development of our democracy.
The courts have overstretched their use of judicial power of issuing interim orders to constantly neutralise the exercise of power by the legislature. The inherent powers of the court in Nigeria, as in other advanced democracies, to issue interim orders should stop where the constitutional power of the legislature begins. The legislature has power to summon anybody and to investigate anything and no court, democratically speaking, should be able to stop that. Although the court may declare such summon or investigation null and void, it should not be able to stop it.
I am not aware of a Nigerian court stopping any President or Governor from carrying out any appointment or holding a meeting or arriving at a decision or function enjoined by the Constitution. To my own estimation, this attitude of the courts is far more like non appreciation of the ethos of democracy and its culture than of engaging in a conspiracy against the legislature. The hysteria for unduly invoking outer clause or inherent powers of the court against the legislature may be explained as being a fallout of long engagement of the military in power and the then practice of suspending the constitution and enacting obnoxious laws and decrees. However, times have changed, democracy is here to stay and so judicial attitude to interpretation must also change.
I believe the greatest threat to the promise of consolidating our democracy in Nigeria is the wilful disregard of resolutions of the legislature by the executive.
On the one hand, when the legislature is about to exercise its legislative powers, the courts operate to stop it. On the other hand, when the legislature urges the executive to do an action, it neutralises legitimate power by simply ignoring the resolution or directive.
The United States Congress, assisted by the Supreme Court, now has inherent contempt power, which it can use to imprison anybody that flouts its resolution. It is in this context that we should view the constitutional amendment to grant qualified immunity against criminal prosecution to presiding officers of the legislative houses in the country.