THE LEGISLATURE IN EMERGING DEMOCRACIES: CHALLENGES AND PROSPECTS

BY DR. ALI AHMAD, RT. HON. SPEAKER, KWARA STATE HOUSE OF ASSEMBLY

A Lecture Delivered at the Maiden Annual Birthday Lecture Series in Honour of Professor Epiphany Azinge, OON, SAN, Held in Abuja on Monday 14th November, 2016

1.0   INTRODUCTION

When I received the invitation to deliver the above-mentioned topic by the organisers of the Professor Azinge Lecture Series, I jumped at it because of the calibre of the personality involved, a personality that has served this country meritoriously in various capacities. I also jumped at the opportunity because it is an area that is mostly misunderstood by Nigerians, even among senior lawyers, because our country has not had the opportunity of a long and consistent practice of democracy so there have been limited number of fat briefs for our erudite lawyers coming out of legislature-related altercations. Only recently has the Nigeria Bar Association introduced a sub-session on Legislative Practice during its annual conferences, while a new sub-association was also established named Legislative Lawyers Association of Nigeria.

Democracy has many paraphernalia and several institutions. Although largely unwritten in the sense of having them prescribed or legislated upon in codes and statutes, the paraphernalia of democracy are all well-known and fully expounded having been derived from centuries of expositions and practice. On the other hand, formal democratic institutions are largely stipulated in law books and constitutions, except for those countries with unwritten constitutions.[1] 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. [2]

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.

To achieve progress, democracy does not trust individuals with the destiny of the people, it places its trust on a defined system of societal ordering. 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. 

As observed above, the cynosure of democracy is the legislative branch of government. There is no doubt that these are turbulent times for the legislature in Nigeria, as is largely the case in other emerging democracies. 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. The weaker the legislature, the more satisfied and happy the executive. It is the people and other democratic institutions that insist on a strong legislature. To ensure effective balance of power, some advanced democracies even go to the extent of voting a particular party in the executive and another in the 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. [3] 

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.

In this essay, we are set to evoke our thoughts on an arm of government that is vilified by the public, merely tolerated by the executive, often critiqued by the judicature but yet very important to the very operation and survival of democracy. At the end, a single recommendation, signifying a birthday gift, will be put forward.

2. EMERGING DEMOCRACIES

Emerging democracies are defined as countries with governments that have emanated out of a perceived legitimate democratic electoral process but are still saddled with complexities of dominant political parties and poorly applied rule of law.[4] Public institutions are weak and democratic ethos and traditions are not firmly rooted. Emerging democracies grapple with problems of incoherent body of laws and weak institutions, allowing some political leaders the leeway to abuse the system through clever and sometimes blatant actions, such as appointment of unprincipled and very partisan personalities to head such institutions.[5]Africa's legislatures have been described as ‘emerging institutions of horizontal accountability’.[6] This is because, due to high turnover rate, its legislatures lack the requisite knowledge and experience of the legislative process.[7] The lack of technical competence has also reinforced the phenomenon of non-attendance, lateness, gangsters and lack of decorum, which are gradually becoming characteristic of parliamentary assemblies in Africa and other parts of the developing world.[8]

Most, if not all, legislatures from developing countries may be classified as emerging. The executive arm will almost always work with, work against or, if everything else fails, go after the legislature before derailing democracy or becoming autocratic. For instance, President Daniel Ortega of Nicaragua and his wife are at the same time currently running for the presidential and vice presidential tickets respectively in the upcoming election in the country. He is favoured to win the ticket, for the fourth time. To achieve this rare feat in a democracy, he emasculated the legislature by changing its leadership and expelling 16 members of the parliament who were opposed to the manner of leadership change.[9]At sub-national levels, legislatures are even worse off because less attention is paid to them locally and internationally. In our states in Nigeria, the Governors are so powerful that even federal institutions located in those state are subject to the whims and caprices of the governors. State legislators, including presiding officers, are either subservient to the governor or they are removed brazenly or locked up at detention facilities.[10]

3. CHARECTERISTICS OF THE LEGISLATURE IN EMERGING DEMOCRACIES

The legislature is the embodiment of the will of the people. The bits and pieces of constituencies congregate to form one unit, representing the entire country. The legislature is far closer to the people than any other elected official who shares similar authority. A federal, state or local government legislator is closer to his people than the President, the Governor or local government chairman. In Africa, the legislature makes a difference in societies that are used to concentration of power in one individual and it is still true that the temptation is still high for the possibility of such power concentration. Where the legislature lacks muscle, presidential abuses of power—including interference with the media, social institutions, and elections—frequently ensue, even under presidents who take office with reputations as democrats.

Legislatures do not exist in vacuum. The very existence of  legislature derives from a constitution and that constitution not only determines its existence but stipulates its basic powers and its relationship to other state organs and to the citizen.[11] Fundamental to determining the legislature's role in a democratic polity is the type of political system stipulated by the constitution, whether it is a parliamentary, presidential or semi presidential/hybrid system?[12]

In a parliamentary system, elements of the legislature form part of the government. The Prime Minister exercises considerable executive power and answers to the legislature, and there is either no president at all or a largely ceremonial one. This system is suspicious of presidents with real executive powers. The dependence of the head of the executive or the Prime Minister and his government is extolled. No matter how powerful a Prime Ministers appears to be, she serves at the pleasure of her control of majority and can be dismissed when her party loses that majority.  This totally contrasts with the rigidity of the fixed terms that Presidents serve.

In a presidential system, the President is directly elected while other members of the executive are appointed by and answerable to the president. One of its main features is separation of powers.  It is argued that the presence of two arms of government (the executive and legislature), each with its own source of electoral legitimacy, reduces the danger of major missteps.  A president, elected directly by the people, can embody the national will better than any legislature or legislator-executive. Also as a unitary actor, the president may be more capable of rapid and decisive action than a legislature or a Prime Minister.[13] The semi- presidential or hybrid system combines the features of both the presidential and parliamentary systems.

Irrespective of the system of government, a weak legislature will invariably expose democratic discontent. It is even worse when a weak legislature is faced with a very strong executive. A legislature is weak when it lacks the institutional capacity to be influential in lawmaking and oversight.[14] Unfortunately, this is the position in many emerging democracies in Africa. The degree of legislative capacity among African legislatures varies deeply across African countries. While the legislature remains weak in some countries, in others it exhibits vigorous activism in terms of checking the executive, contributing to the processes of policy-making, and indeed as a monitor of policy implementation.[15]

There is rise of an autonomous legislature in Kenya, and to some degree in Nigeria, Uganda, and South Africa. In Kenya, the legislature has successfully established its autonomy from the executive as well as steered that arm of government into acceding to extraordinary amendments, to its proposed legislation and budget.[16] Even further, activities of the legislature have exposed corruption within the executive, compelling, in some occasions, the executive's termination of such fraudulent activities.[17] In South Africa, the legislature's enhancements of executive-proposed legislation have permitted the executive to accomplish policy objectives hitherto reached ineffectively.[18] In Uganda, professional budget offices have been established to assist parliament engage a more assertive role in the budget process.[19]

Conversely, the relatively weaker legislatures such as is existent in Benin, have made little impact on the policymaking process and the operations of the state.[20] Therefore, the contrasting accounts of the performance of African legislatures suggest that some emerging democracies have augmented their strength and capacity, while others have not.[21]

4. LEGISLATIVE ROLE AND PROCESS

In Nigeria, the legislature or the National Assembly is made up of 109 Senators and 365 members of the Houser of Representatives.[22] Every member of the National Assembly has a minimum of 5 legislative aides. The bureaucracy that supports the legislature is the National Assembly Commission; and the National Institute for Legislative and Democratic Studies provides high-level technical support for legislators. In all, N115 billion was the total budgeted amount for the entire legislative arm and its support services.

The legislature conducts its affairs largely through committees and decisions are couched as resolutions. Resolutions are arrived at after debates and voting, in which the majority’s decision, normally simple majority unless otherwise required in very limited circumstances, is taken as the decision of the entire committee or house.

The role of a legislator is to represent his constituency at the federal or state level, to make laws and conduct oversight functions over the executive. Part of the role of providing check and balance to the executive is to approve appointment of some key members of the executive and judiciary.

On the legislative process, cognizance is taken of rules and procedures governing the process. In Nigeria, the first source of the legislatures’ procedure, is the Constitution.[23] It spells out the powers and limitations, of the National Assembly, in the exercise of its legislative functions.[24] The second is the legislature's Standing Orders, created for the orderly functioning of the parliamentary process, generally with constitutional authority.[25]

Standing Orders or Rules are statements describing the manner in which parliament should proceed under various circumstances. However, they do not meet the needs of every situation. Even so, they cannot be ignored or violated, the House can amend them or vote to suspend one or more of them if necessary.[26]

Ignorance of legislative practice and procedures is a challenge in Nigeria’s legislature. Even where huge resources are devoted to training the legislators and their staff, the high turnover rate at the legislature after every election cycle, implies that the training exercise will be repeated.

5. SEPARATION OF POWERS: BETWEEN THE ABORTED PARLIAMENTARY AND THE PROMISING PRESIDENTIAL MODELS IN NIGERIA

Separation of powers is the hallmark of the presidential system of government. But before adopting the current presidential system, Nigeria experimented with the parliamentary one. The British colonialists bequeathed their version of parliamentary model of government to Nigeria at independence. The Prime Minister and other Ministers were elected members of parliament, meaning that there was effective synergy and iteration between those who were only legislators and the few that combined legislative and executive functions. Everyone was conversant with matters that were discussed or debated in parliament and there was no issue with non-implementation of resolutions once they were passed. Governmental power was fused in parliament and the parliament was supreme. [27] But then, the First Republic was truncated and it was believed that the parliamentary system, not being suited to the Nigerian complex society, might have contributed to the failure of the Republic and the country went for a full-blown presidential system of governance. The system is working in the United States and other countries with similar complex and federating units like Nigeria, and the choice of a presidential system was irresistible.

With its history at experimenting with the Parliamentary model, it was thought that a hybrid of Parliamentary and presidential system would have been considered, but Nigeria adopted the United States model of presidential system since 1979 Constitution hook, line and sinker. With the presidential system in place, executive and legislative powers are now separated and demarcated.  It is appreciated by all that separation of powers is at the heart of the presidential system. [28]  Looking back though, it seems what we fail to realise in practice is that non adherence to the principles of separation of powers is highly injurious to the presidential system of government. 

Governmental powers are separated to allow each branch exercise the powers allocated to it without any member of the other arms egregiously participating in the exercise of such power.[29] It is elementary to note that separation does not mean to be aloof and to not cooperate or work with other arms; that would stall any government. However, it seems a sizeable number of Nigerians have a problem in relating theory with the practice of separation of powers. They cannot understand how to keep power separated and at the same time cooperate meaningfully to achieve the aim of government.  You either totally fuse legislative and executive powers (in this case by ceding the powers to the executive) or construct a wall of demarcation between them where belligerency thrives.

The Governor Balarabe Musa Regime during the Second Republic typifies this mindset. [30] To most Nigerians, the objective is to exercise such power irrespective of whether it achieves any good at the end. Power is either separated to allow no rapport, or it is fused, such that the other arms, especially the legislature, are subservient. Examples abound in our state legislatures: the House of Assembly must be cowed and become an appendage or another Ministry under the executive, that is fusion. If the Assembly resists and seeks a little mind of its own, then it is recalcitrant and antagonistic and will be treated as an opposition and starved of funds. To gladiators of power in majority of the states in Nigeria, power is either fused or exclusively separated. Neither is a true representation of the principle of separation of powers in theory and practice. [31]

In analysing the practical relationship among the three arms of government among one another and within the context of separation of powers, we need to look at each arm of government more closely.

5.1 The Executive

The role of the executive is the clearest since all human societies are familiar either at the most basic or highest levels of one type of exercise of executive power or the other. Power is synonymous with the executive branch and power is intrinsic with it. The power to run and steer government belongs to the executive exclusively, with the exception of a few administrative powers donated to the heads of the other two arms to be exercised only within the confines of their jurisdictions. [32]

Being the most visible arm of government that exercises governmental power under the presidential system, the executive branch seems to represent and symbolise the government. Its relationship with the other two arms is therefore marked by a situation where one powerful arm is encroaching or usurping the powers of others. The other two arms are neither in a position nor able to encroach on the powers of the executive. It is therefore beneficial to look at the other two arms as they relate to one another   (before neutralisation?)

5.2 The Legislature

The Legislature-executive relationship in Nigeria is the most turbulent. As indicated above, the executive merely tolerates the legislature and the best wish of any executive is to not have a strong and independent legislature. The executive in Nigeria does not cherish power sharing with an equally vigilant legislature that will act to balance its enormous powers. This wish is what has characterised the usual attempt by the executive to determine and interface with the process of choosing leadership of the legislature. At the state level, this is the general rule and no speaker emerges without the consent or approval of the "Executive" Governor. Indeed, these governors have taken this wish further so that in a situation where, when they are inaugurated, they meet a serving speaker who has served a previous governor who could not be re-elected. The in-coming governor will always find a way to kick out such speaker, as happened in Kogi State recently. In other rare instances where the speaker's political party is different from that of the governor and the speaker dares to emerge in spite of manoeuvres from the governor, as exemplified in Plateau and Benue States recently, then the speaker has to defect to the political party of the Governor to save his seat.

At the federal level, it used to be no different since the Second Republic when we started operating the presidential model. However, the idea of determining the leadership of the National Assembly became brazen during the Obasanjo era. Professor Oko has documented this contest in his latest book.[33] The practice changed partially during the last days of President Obasanjo. It was first the House of Representatives during Speaker Na'abba that liberated the House from the fetters of President Obasanjo. Expectedly, he paid the humiliating price of pioneers and he also lost subsequent election but ever since, the House of Representatives has never been the same again on matters of choosing its leaders. The executive would try but it has always failed. The game however continued at the Senate until the 8th Assembly of Senate President Saraki. As usual, the pioneer Senate President, like Speaker Na'abbah, has to pay and he is paying the price by being hounded from one criminal court to the other.

With the Senate being on board, the National Assembly has completed the full cycle of independence as any legislature in the democratic world can aspire to be. The consequences flowing from the ability of the National Assembly to resist external influence of the executive in choosing its leaders have been largely unappreciated by many. It is however, one of the greatest achievements of our democratic experience since independence. That is how legislatures in advanced democracies behave. If we have not done so, we shall soon begin to reap the fruits of this independence. Our hope is that no President will henceforth burn his fingers in trying to force leadership candidates on the legislature.

The reason there is no balance of power at the state level where we have lord governors is traceable to the inability of the legislatures to freely choose their leaders and this will continue until the proposed constitutional amendment guaranteeing financial autonomy for state legislatures is achieved. An independent state legislature will check a governor ten times more effectively than an EFCC and ICPC combined. The reason every governor or executive finds forcing leadership on the legislature attractive is that it allows the governor to intimidate and bully the legislature. Where the executive fails to achieve this aim it then chooses to isolate such legislature.

Even at the federal level, analysis of President Muhammadu Buhari’s government since inception no doubt is one of aloofness and isolation of the legislature. Like the typical Nigerian executive who either overawes or isolates the legislature, President Buhari has not sought much rapport or association with the legislative arm unless when it becomes absolutely and unavoidably necessary.[34] When this happens, governance and the people become the victims. For instance, the Senate and House of Representatives passed a joint resolution inviting President Buhari to address the National Assembly on his plans of getting the country out of recession. [35] For over one month now and still counting, the executive has not reacted to that letter. Not surprisingly, the Senate roundly rejected his request for approval to borrow $30 Billion Dollars.[36] So it is the citizens that suffer from infraction of the basic democratic tenet of inter-arm respect and cordial relationship.

As practised around the world, separation of powers, especially under the presidential system, refers mainly to the ability of one arm to exercise the powers allocated to it solely to the exclusion of all other arms. It is true that an arm of government may willingly donate, permit or allow another arm to exercise any of its powers in a defined, limited and specific circumstance and that is alright. What cannot be done legitimately is for one arm to exercise the powers of another through usurpation and without the prior approval or subsequent ratification of the other.

To drive home the point, a judge cannot legislate but he can fill in the gaps in a legislation to carry out the intention of the legislature. [37] Even when the effect of their decisions amount to law making in circumstances where the gap is so wide, judges deny it because they cannot formally exercise that power. In any event, even in this limited circumstance, the legislature in theory acquiesces to the encroachment. Where it disapproves of it, the legislature amends such legal principle in a subsequent legislation.  This is what happens and it is the practice in all presidential systems, including Nigeria. A ready example is the recent 'legislation' by the Supreme Court that the running mate of the Kogi gubernatorial candidate cannot step into the shoes of the main candidate who died after the elections but before the final tally of the results.[38] There was a gap in the law of succession, as there will always be since the legislature cannot envisage every rare incident. However, the current attempt by the National Assembly to change the effect of the Court's decision in Faleke's case shows its disagreement with the exercise of donated legislative power by the court. [39] Another example is the decision in Saraki v. Federal Republic of Nigeria. [40] 

Analysis of the case, in democratic terms, is interesting. For one, the Court declared that there was no gap in legislation in the case; only conflicting laws. The case was about the quorum of the Code of Conduct Tribunal. The Constitution provides for three number of judges. while another legislation, which is lower in hierarchy than the constitution, provides that two members will suffice. In resolving the conflict, the Supreme Court upheld the inconsistent law over the provision of the Constitution. The legislature however disagrees and believes that what the Court did, even though the Court said there was no gap, was to create another law of quorum for the Tribunal. The legislature has just amended the law to provide for a minimum of three judges as the quorum.[41]

Another poignant instance where the legislature sought to overrule the judiciary with regard to the legislature's ultimate power of lawmaking was the issue of legislative immunity. The law provides for legislative immunity for all legislators on things done or said inside of the legislative chamber. [42] In Nigeria, the court struck down the legislative immunity for constituting an ouster clause and thereby being inconsistent with the Constitution. In response, the legislature had no problem whatsoever in nullifying this decision of the court by attempting to insert it in the current constitutional amendment. [43] From the above analysis, 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.

The Nigerian legislature is or, to be more precise, used to be so generous in allowing others exercise its function. This is however changing and the legislature is becoming as protective  as the judiciary in the exercise of its constitutional powers. Until recently, it allows the executive to make laws and without any recourse back to it. This doctrine of legislative power to the executive is known as power to make subsidiary legislation. And the executive exercises this power without recourse to the legislature for approval. An extreme version of this is contained in Section 315 of the Constitution which allows the President or Governor to amend certain laws. In the pre-1999 Constitutions, the power of the executive was limited to mere changing the laws but in the current Constitution it has been extended. The President or Governor as the case may be can now amend, add, subtract or even repeal such laws as are called “existing laws”. [44]  And such amendments or repeals stand without any scrutiny by the legislature!

In recent times however, perhaps due to frustration with excesses by the executive, the legislature is awake and is mulling the idea of reigning in some of the donated legislative powers to the executive. Several attempts have yet to see the light of the day, except for an Act that this writer anchored during the Seventh Assembly.  Due to several operator-regulator conflicts, the National Tobacco Control Act, 2015 is a ground breaking law that had languished for decades at the National Assembly without seeing the light of the day. Any tobacco law must be dynamic and give the regulatory agency the flexibility to react and respond to multiple tricks used by the multi-billion Naira industry. Even then, we succeeded, perhaps for the very first time, in inserting a provision in the law requesting the regulator to come back to the legislature with any subsidiary rules or regulations it seeks to enforce.

Currently therefore, the Federal Ministry of Health along with its agencies and interested local and foreign civil society organisations are about appearing before the Senate to seek its approval for the draft Tobacco Control Regulations 2016 before enforcement. When two arms of government protect their own turfs but still lend cooperative relationship to one another in a positive way, that is the doctrine of separation of powers at work at its best. With such cordial relationship between the Committees of Health of the National Assembly and the Ministry of Health, it will be inconceivable for the Ministry or any parastatal under it to treat with levity any resolution of the legislature, resulting into overall development of the sector.

5.3 The Judiciary

If the province of the exercise of legislative power is blurred by free donation of some of its powers to other arms, that of the judiciary is clear cut. In practice, the judiciary does not only protect its interpretative and dispute-settling powers, it expands them. The judiciary almost always frowns at the other arms pretending to usurp its powers. 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. In Elrufai V. The Senate, a case that typifies where the legislature tries to engage in any determination that looks like passing judgment, the court wasted no time in nullifying the decision of the legislature. It held that the Nigerian Senate could not ban a former Minister of the Federal Capital Territory from politics on account of having found him culpable for corruption. That was judgmental, an exclusive preserve of the judiciary.

Yes, there are administrative tribunals and mechanisms of quickly settling minor disputes but even then all these powers are exercised by the other arms subject to approval and confirmation by the judiciary. I have not come across an exercise of judicial or quasi-judicial power by any non-judicial body to be so absolute as to completely shut out the courts. Even in the practice of arbitration, awards by an arbitral body. This is because when a party disagrees, arbitral awards are not conclusive until the courts agree to shut out the doors against themselves.

The court's protection of judicial powers from encroachment or usurpation by the legislature knows no bounds. It has come up with what it refers to as ouster clause. Any act of parliament that pretends to prevent, exclude or negate the exercise of judicial power is shut down by the monster “ouster clause” maxim. Once a law is seen even remotely as containing anything that restricts court’s consideration of the matter, it is considered to contain an ouster clause and the law is quickly annulled.  A typical ouster clause that courts strike down in a legislation would normally prevent a court from entertaining or listening to a particular matter.

For instance, in Peter Obi V. House of Assembly, the court in Nigeria shot down the globally recognised norm in every democracy of the principle of parliamentary immunity, whereby anything said or done inside the chambers of a parliament by a legislature is protected from legal enquiry. This limited, chamber-based immunity expands the freedom of expression of the legislature beyond the one granted the general citizens and grants them unlimited freedom of debate to ensure that no legislature is sued for defamation or subjected to criminal prosecution for whatever happened inside the parliament.[45] This is akin to the judicial immunity accorded judges to protect them from liability from anything they do arising out of performance of their judicial function. While Nigerian courts uphold judicial immunity, they strike down legislative immunity on the basis that it constitutes an ouster clause. Sadly, the point can be made here that our courts are wont to strike down such practice as parliamentary immunity, or any process that is inherent in a democracy and couched under any law on the basis that it constitutes a bar to exercise of judicial power.

So far we have looked at the concept of separation of powers and postulated that it grants ultimate power to each arm of government to exercise such power exclusively, save the ones it willingly donates to other arms. And even then, the donor of that power usually reserves the ultimate right to approve or reject such exercise of the donated power. Of course, each arm cooperates with other arms and each, by being the ultimate holder of its own power, acts as a check and balance to one another. We have said this much about exclusive exercise of power and power sharing and donation in some limited circumstances. The next germane issue is the situation where an arm of government seeks to prevent another arm from exercising that other's constitutionally approved power. This phenomenon is not common in developed democracies but is a hallmark of emerging democratic nations.

6. SEPARATION OF POWERS: NEUTRALISATION OF LEGISLATIVE POWERS BY THE EXECUTIVE AND JUDICIARY

One major difference that separates developed and emerging democracies is the attempt by one arm to unlawfully prevent or scuttle the exercise of power by another arm. The situation here is different from usurpation of power where, for example, the legislature passes what looks like passing a judgment. What we are describing here is a situation where the executive or judiciary seeks to prevent the legislature from exercising its legislative powers.  However, since legislature is the bastion of democracy, it is the target of this game of power neutralisation. Other arms of government do not experience this frustrating phenomenon. [46]

The executive and, to some extent, the judiciary always target the legislature more than the legislature can or has ability to estop the other two arms from exercising this power. It may actually be a convenient barometer of choice when determining maturity of a country’s democracy to consider how often has an attempt been made against the legislature to prevent  or illegally stop it from exercising its powers. Such neutralisation may be active or passive. It is active when the undermining arm of government takes positive steps to achieve the aim, while passive neutralisation is achieved by leaving undone what is required to be done legitimately.

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. Shortly before the 2015 general elections, this ugly incident repeated itself where someone in the police or other security hierarchy ordered the withdrawal of security details of the then Speaker of the House of Representatives, teargased legislators at the precinct of the National Assembly and locked up the National Assembly.[47] This was done to prevent the House of Representatives from considering certain issues related to change of its majority leader. The gory incident in 2016 of locking up for several days the entire leadership of the Zamfara House of Assembly by the Chairman of Nigeria’s Governor’s Forum the SSS Headquarters in Abuja is still fresh.[48] They were locked up to neutralise their power to cause inquiry into some expenditures by the Governor. The Speaker of Kogi State House of Assembly was literally forced out of his office by five of the members backed by the Police Force, [49] the National Assembly passed a resolution and a court issued an order for his reinstatement[50] but the executive branch refused until the Speaker ultimately resigned. [51]

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! A former Minister of Petroleum obtained an interim order of court approving her contention that the Nigerian legislature could not invite her for questioning in an investigate matter relating to her Ministry.[52] A former head of the EFCC similarly got the nod from the court to agree with him that the legislature could not invite him to testify in a matter that seeks to unravel his involvement in the disappearance of recovered loots by the Commission.[53] The court also issued an order that the House of Representatives could not take a vote on removing its Majority Leader and appointing a new one.[54] The orders were always interlocutory or interim, but that is all anyone requires to stymie or neutralise the power of the legislature.

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.

As mentioned above, Section 6(6)(b) of the 1999 Constitution has been invoked by the courts to rightly nullify any attempt to oust the jurisdiction of the courts. But the ouster clause argument is not relevant here since no one is claiming that the courts lack jurisdiction to entertain matters relating to exercise of powers by the legislature. The contention is that while it does so, the courts cannot legitimately estop the legislature from commencing, continuing or concluding the exercise of its own powers. Unarguably, the right justification is not the ouster clause as we are sometimes led to believe. The appropriate justification here is that courts fall back to their inherent powers to do what they consider to be in the interest of justice. The Constitution acknowledges the "inherent powers and sanctions of a court of law" in Section 6(6)(a) of the 1999 Constitution.  While the ouster clause is backed up in Section 6(6)(b) of the Constitution, Section 6(6)(a) gives support for the inherent powers of the court.

The inherent powers of the court are not defined in the Constitution but the courts themselves in Nigeria and indeed in other developed and democratic countries have elucidated upon it beyond any doubt for many centuries. Rules of courts, being internal codes or regulations of the court system further contain similar elucidation. 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[55] 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. 

So much has been said for active neutralisation of legislative powers through our courts but the executive has devised another means of scuttling legislative power through passive neutralisation. This one is when the executive brazenly disregards the resolutions of the legislature. Compare with the active method of going through the judiciary, this is the passive, do-noting method. 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. This completes the circle of neutralization of legislative power. 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.  

It was stated above that the presidential system of government presupposes that each arm performs its function unfettered and that each will accord the others due respect and regard for the purpose of ensuring smooth running of government. All these assumptions are intrinsic and are a matter of course with the parliamentary model since some members of one arm belong and perform the functions of the other. This seemingly intractable problem of the presidential model in Africa does not exist with the parliamentary model because government ministers would have participated in the deliberations and debates in parliament leading to the adoption of the resolutions. Unless each arm performs its functions without let or hindrance, and unless each arm accords the others due respect and regard, delivery of governmental development policies and programmes cannot run smoothly. The people, and not those in power, will suffer for it.

With the presidential model of government, the assumption is that the executive will take resolutions of the legislature seriously and try to implement them or give reasons for not being able to do so. It becomes a monumental waste of time, energy and money for 109 senators or 365 members of the House of Representatives to engage in heated debates on ways to move the country forward or to manage and adopt report of an investigative committee, only for the executive to negate and neutralise that power by doing nothing. It is not only disrespectful, it is wasteful of taxpayers' money.

Even more disrespectful is the escapism of the Nigerian executive and even some senior lawyers that resolutions of the legislature, which were always supported by most members of the ruling party in the legislature are not laws and as such they are not binding on it.[56] But the resolution on the famous Doctrine of Necessity was quickly implemented by the executive. [57]  This deliberate avoidance aimed at emasculation of the legislature or neutralising its powers explains the dominant relationship between the executive and the legislature. Nigeria changed its model of government to the presidential one without averting its mind to the unwritten tradition that no one challenges or gives orders to the ruler king. With the parliamentary system, the ruler king or Prime Minister agrees to the order being made but it comes from an external or independent body in the Presidential system and that does not seem palatable to the African powerful ones.

However, in developed democracies, the executive disregards a clear resolution of the legislature to its own political detriment. A resolution that is carried means it is more popular since it has majority votes behind it and the executive that is sensitive to the wish of the majority will think twice to neglect or ignore such resolution. In exceptional situations that the executive feels strongly about the matter, and this is the case sometimes where opposition controls the majority in the legislature, the legislative arm always reserves the right to enforce its resolutions by pouring cold water on any subsequent request of the executive before the legislature. 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. [58] 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.

In contrast, legislatures in emerging democracies do not feel emboldened to take residuary actions against the executive to enforce their resolutions because their citizens, who are likely to benefit most when the resolutions are implemented, perceive the legislature as belligerent lots. While public opinion supports congressional resolutions in the United States, it is largely unsupportive or indifferent in Nigeria. Nigerians will almost always attack the legislature any time it is perceived to confront the President or Governor in the name of enforcing a resolution. Nigeria is in dire need of a way to shore up the respect of the legislature by the executive leading to voluntary compliance with legislative resolutions.

In extreme circumstances to enforce its resolution, the legislature can cause a stalemate as is usually the case in the United States where Congress shuts down government at the end of the year by withholding its approval. Recently though, the Nigerian Senate took an unprecedented action to enforce its own resolution regarding filling up vacancies in the Senate.  It is to be recalled that all three senatorial elections in Rivers State were annulled or declared inconclusive. On 27^th September, 2016, the Senate passed a resolution, S/Res/016/02/16 calling on the Independent National Electoral Commission to immediately conclude all pending re-run elections in the country especially in Rivers State which has no single senator representing it at the Senate.[59] As usual, INEC did nothing. On the November 2^nd, 2016 Senate passed another resolution urging INEC to conduct elections into the Senatorial districts and appoint a Minister from Kogi State to replace the last one that died since March 2016. The elections must hold within five weeks or the Senate will shut down for as long as the elections were not held.[60]

7. CHALLENGES FACING THE LEGISLATURE IN NIGERIA

In March 2003, a national workshop comprising of various committees of the National Assembly, Speakers of State Houses of Assembly and State Attorneys-General was held in Ilorin, Kwara State on the constitutional powers of the legislature. One of the major recommendations contained in the communiqué of the workshop is relevant. It states:  The states “The National Assembly should be more aggressive in presenting its position to the public to avert the current poor public perception.”[61]

The Nigerian legislature has always suffered from poor public perception. One cannot but agree with the views of many who have attributed this phenomenon to the twin facts that the average Nigerian is not acquainted with the legislative process due to incessant military coups that normally disbanded the legislature. As a result, the legislature has not been able to fully evolve and entrench the legislative tradition with which people are conversant. Closely connected is the perception that the legislature votes for itself enormous salaries and allowances to the detriment of the nation. This mischief gains currency when the public is informed that for instance, the 2016 budget of the National Assembly of N115 Billion Naira is simply divided and shared by the number of federal legislators. The legislature itself has done little to disprove this popular but incorrect portrayal of it in the public. When it comes to its budget, the legislature needs to be more transparent and engage with the public.

Professor Oko rightly identifies lack of capacity and experience as a big challenge to the legislature. Nigeria ranks as the country with the highest number of legislature turn-over in the world.[62] Every election cycle disgorges an average of two-thirds of trained and experienced legislators to the detriment of the institution. There is also the challenge of public expectation of being funded on almost everything by their legislators who are perceived to have unfettered access to public  funds. The expensive electoral system is another huge challenge with no solution at sight.[63] At the state level, we also have the challenge of fledgling legislative houses that are so weak they mostly qualify as another ministry under the executive. Indeed, in one of the states in the North West, current legislators risk drawing the ire of the Executive Governor if they choose to sponsor private-member bills without seeking the approval of the Governor. Unless the legislature at the state level also achieve the status of financial autonomy, they will never begin to set themselves free from the executive branch at that level.  

7.1 Budget Padding and Corruption in the Legislature

Out of the challenges facing the legislature in Nigeria, the issue of corruption cannot be overemphasised. The flagship item about corruption currently is the issue of budget padding. The controversy about what has become to be known as budget padding is really not a fundamental problem. It is a manifestation of the various challenges that were highlighted above: lack of awareness of the legislative role and procedure as well as poor public perception of the legislature. If we take it that to pad means to embellish, creep in, to sneak in something, and given what one gathers from the public debate over the subject-matter so far, budget padding presupposes that the person who pads does not have authority to do the padding but went ahead all the same to do it and without the permission of the original author of the document padded. The premise of the meaning of budget padding by Nigerians is totally wrong. And as indicated, it is wrong because of lack of awareness of the legislative process.

One fundamental function of the legislature is to pass a proposed budget submitted by the executive. This primary function of being in charge of the purse, by far, supersedes all others. Determining how much is to be spent and on what matter is sine qua non with the legislature. In the most simplistic form, the democratic practice of cooperation and of check and balance is that the executive prepares and sends a proposed budget to the legislature, and it is what is approved by the legislature and assented to by the executive that becomes the budget.[64] Not being a robotic exercise, it is assumed that a substantial amount of work would have occurred between the time the document was proposed and when it was authenticated, and in the process some subtractions and additions would have taken place, if the legislature works qua legislature. To now dub such as an apocryphal or illegal insertion is to confuse a proposed budget to a copyrighted document that must not change. It is true that corruption can and does creep into the process but the important issue of fighting corruption is lost in the misplaced argument that a proposed budget is unalterable. The legislature must do its work and cannot sacrifice its duty of budget scrutiny on the altar of allegation of corruption.

Corruption is pervasive in Nigeria and is neither specific to the legislature nor to the critical examination of a budget proposal.[65] We must device means of cleansing the entire legislative process in general, and budget process in particular, of corrupt practices. Corruption in the legislature may start by addressing the expensive electoral system and the urge by legislators to recoup money spent,[66] as well as negating the prevalent public expectation of drawing unending cash from their legislators.

Closely connected to budget matters is the issue of constituency projects. Constituency projects are those projects that are suggested by each legislator for his constituency and agreed to by the executive branch. Unlike other items in the budget, they are initiated by the legislator who also identifies the exact location for its execution. But like all other items in the budget, it is the executive branch that carry out full implementation of the projects. Constituency projects become hazy and corruption infested when some officers in the executive arm connive with other members in the legislature not to implement the projects and to just channel the money to their shared private pockets. Constituency projects in themselves are excellent intervention that takes development to the most rural areas. It is the corruption that has crept in that we should target for elimination and not the constituency projects themselves.     

8. PROSPECTS FOR EMERGING DEMOCRACIES

The Legislature is the hub of a functional democracy the world over. It symbolizes the sovereignty of the people and embodies their destiny and aspirations. Democracy is a process that needs to be learned and domesticated; it cannot be imported wholesale. Democracy does not end with multiparty elections, after all Adolf Hitler won a fair election before wreaking havoc on humanity. Although present African countries were a creation not of homogeneity but of European quest for resource exploitation with the attendant colonial culture of oppression, a great number of those countries are moving towards enviable democratic culture. [67] With all the imperfections of their democratic experience, they have largely moved away from the once popular military insurrection as a means of gaining political power. This is condemnable.

The shift in thinking and action of African leaderships and citizens can equally be deployed to reinforce our democratic experience by developing democratic paraphernalia and institutions. For this purpose, no other institution than the legislature needs to be constantly strengthened. Luckily, in Nigeria the federal legislature has achieved some level of independence that will be hard for any external power or influence to reverse. The federal legislature will do this country a great service if it decides, like its counterparts across the world, to deploy its legislative powers to establish a formidable process to fight corruption in the land. In addition, doing so will dispel the misconception and negative perception surrounding its activities.

Our hope of deploying the legislative process to fight corruption is rekindled by the current move by the Presidential Advisory Committee Against Corruption (PACAC) to warm up to the federal and state legislatures in the fight against corruption.[68] The federal and state legislatures, collaborating with the Committee organised a high-powered national symposium specifically addressing how the legislature can achieve success in the fight against corruption.[69] It is our hope that the executive will change its attitude and continuously warm up to the legislature to jointly fight this war on corruption. As every speaker at the conference at the conference acknowledged, there is no other sustainable way to do this.

What is left to be said is that when the legislature is set to get fully engaged in the fight against corruption, it cannot but be consistent with due process and with due regard to fundamental rights of citizens. Otherwise, if due process is jettisoned in order to fight corruption today, it could as well be done for other subject-matters that the proponents want to pursue in future; and it could be any bad thing as well. That will be dangerous to democracy and good governance. In the end, the day the Nigerian executive voluntarily implements resolutions of the legislature legitimately arrived at, we would have been very close as to answer the call of a developed democratic nation.

9. RECOMMENDATION

To sum up the thoughts expressed above, one cannot but offer a word of practical advice to move our democracy forward one more step. It is here recommended that for separation of powers and its positive effects on good governance to take root in Nigeria, the practice of neutralising powers of the legislature must stop. But because there are more than enough Supreme Court decisions supporting, undemocratically, neutralisation of the power of the legislature. We must devise a way of preventing this neutralisation from continuing. And this is the only one recommendation that one will offer at the end of this lecture.

The only way is to recommend a legislation to the effect that no interim orders from a court shall issue to prevent any legislature from exercising its constitutional powers. To many Nigerian lawyers, this suggestion is a sacrilege. But so was the disapproval of Nigerians to the attempt to re-legislate chamber-based immunity that was ultimately contained in the amended draft constitution during the 7th Legislature. But to lawyers and democrats in developed nations around the world, this recommended legislation to ban interim orders against the legislature that is the democratic norm. Indeed as one is not certain that when passed, the courts would still not strike down such law as being unconstitutional. Therefore, the full proof is to appeal to Nigerians and insert such pro-democracy legislation in the ongoing exercise of constitutional amendment. And that is our recommendation. Thank you.