The doctrine of separation of powers, in a presidential democracy, presupposes that each arm of government is assigned certain responsibilities and powers, which it exercises with a measure of independence and, in the process, ensures checks and balances within the general mechanism of governance.
The provision for checks and balances in every democracy is intended to serve as a bulwark against likely abuses and excessive application of powers by an arm of government. Where such is absent, and an arm is allowed to exceed its bounds unchallenged, a state of anarchy could arise.
The National Assembly seemed aware of this when it condemned what it sees as a growing culture of disdain in the manner the Executive treats legislative resolutions. Members of the legislative arm have reportedly lamented that most of their resolutions had consistently been left unattended to by the Executive.
Although the legislators have not made public the steps they intend to take to correct this perceived disregard of an arm of government, one thing is clear: the anger expressed by the National Assembly is capable of further heigtening the rancorous relationship between both arms in recent past.
The question many have asked is: whether or not the Executive, in a democracy – propelled by the dogma of the rule of law, a component of which is the doctrine of separation of powers – has the liberty to choose and pick which legislative resolution to implement.
It is the primary responsibility of the Legislature to make laws for the good governance and administration of the state. The Executive, on the other hand, has the responsibility of implementing such laws.
That the Executive has little option in this is underscored by the constitutional provision that arms the Legislature with the power of veto, where the Executive seeks to prevent birth of a law by withholding its (presidential) assent.
While those who sympathise with the National Assembly are of the view that the Executive cannot pick and choose which legislative resolutions to implement, others argue that resolutions by the legislative houses lacked the force of law.
The first party argues that since in executing its functions, the Legislature speaks through two major media – law and resolutions – the Executive is bound to implement such products of legislative deliberations. The other argues to the contrary, insisting that since Section 4 of the Constitution, from where the legislative arm derives its function, did not include resolution, it cannot be equated with law.
Blacks Law dictionary defines resolution as a “formal expression of opinion, intention or decision by an official body or assembly, especially a legislative.”
Experts in parliamentary jurisprudence said the practice of submitting and voting on resolutions is a typical part of business in legislative houses and other public assemblies. Legislators, they said, could apply their resolutions to serve two purposes.
The first type of resolution expresses the lawmakers consensus on matters of public policy. This includes instances where lawmakers routinely offer criticism or support on a broad range of social issues, legal rights, court opinions, and even decisions by the Executive. The second is when lawmakers pass resolutions for internal, administrative purposes.
They further said although parliamentary resolutions are not laws per se, there are instances when resolutions can have the effect of law. Such circumstances include when a resolution is jointly passed by both chambers (in a bi-camera legislative system).
A joint resolution implies “a legislative resolution passed by both houses.” It has the force of law subject to executive veto. An instance existed on February 9, 2010 when both houses of the National Assembly passed separate resolutions on the same issue at the height of the uncertainty created by the health of the late Presiden Umar Yar’Adua.
The houses had, pursuant to the provision of Section 145 of the Constitution, invoked the doctrine of necessity and passed a resolution to the effect that the then Vice President, Goodluck Jonathan, should discharge the function of the office of the President, Commander-in-Chief of the Armed Forces of the Federation as Acting President.
Resolutions are treated as mere expression of opinion by legislators when they are concurrently passed. That is, when a resolution passed by one house is later agreed to by the other. Concurrent resolution has no force of law.
Both houses of the National Assembly have, in recent time, passed a number of resolutions that the Executive has treated as concurrent resolutions. Some of such include those passed at the height of the crisis generated by President’s Jonathan’s sudden announcement of the withdrawal of petroleum subsidy in January last year.
Although it was the House of Representative that first passed the resolution asking the Executive to reverse the decision, the Senate did the same. But Minister of Information Labaran Maku was later quoted as describing such resolution as mere opinion of the National Assembly. The Executive never obeyed the resolution.
Bothered by the humongous amount in the allegation of fraudulent conduct against the Chairman, Pension Reform Task Team (PRTT), Abdulrasheed Maina, both chambers of the National Assembly resolved that he be sacked.
When that did not work and he continued to disregard its invitation, the Senate later directed the Inspector General of Police (IGP), Mohammed Abubakar to effect Maina’s arrest.
Like Maina, the IGP spurned the lawmakers. It took threats of a showdown with the Presidency before Maina was declared wanted by the police and his later removal as the head of the PRTT. But his arrest has not been effected by the IGP.
On July 19, 2012, the House of Representatives, while adopting the report of its ad-hoc committee on the investigation into the near collapse of the Nigerian capital market, resolved, among others, that President Jonathan should sack the Director-General, Securities and Exchange Commission (SEC), Ms. Arunma Oteh, for supposedly being unqualified, by the provisions of the law, for the position.
The legislators accused her of being incompetent and unable to effectively manage the commission and inherent regulatory failures, which they said could lead to the collapse of the capital market, if left unchecked. The Senate also passed a similar resolution.
Ms Oteh is still in office today. The 2013 budget is said to be threatened by the National Assembly’s refusal to allocate funds to SEC on account of the President’s decision to retain her and the Executive’s alleged insistence that funds be allocated to SEC.
There was also a motion last year at the House of Representatives titled: “Need to address Power Holding Company of Nigeria (PHCN) corporate customers’ unwillingness to pay their bills.” Based on its resolution, the House directed the Head of Service of the Federation, ministers of Defence and Police Affairs, and other relevant authorities to prevail on their respective agencies and institutions to settle all their outstanding electricity bills within four weeks.
It also directed the mMinistry of Finance to deduct at source all unsettled bills at the expiration of one month and remit same to the PHCN. Till date, the resolution exists only as mere resolution.
The Senate in December 2011 adopted all the 45 recommendations of its adhoc committee that probed the activities of the Bureau of Public Enterprises (BPE) since 1999 to date.
Among the adopted recommendations are the removal of the Director-General of BPE, Ms. Bolanle Onagoruwa, for “her gross incompetence and for the illegal and fraudulent sale of the Federal Government’s residual shares in Eleme Petrochemicals Company Limited.”
They also indicted former heads of the Bureau, Mallam Nasir el-Rufai, Dr. Julius Bala and Mrs. Irene Nkechi Chigbue, for seeking approval directly from the President instead of the National Council on Privatisation (NCP) as stipulated in the Public Enterprises Act, 1999.
For the failure of their respective core investors to deliver on the fundamental provision of Share Purchase Agreement/Post Acquisition Plan, the Senate also asked the NCP to rescind the sale of Abuja International Hotels Limited (NICON Luxury Hotel), Abuja; Sheraton Hotel and Towers, Abuja; the Aluminium Smelter Company of Nigeria (ALSCON); Katsina Rolling Mill; Transcorp Hilton Hotel; Volkswagen of Nigeria Limited; the Delta Steel Company and re-advertise the affected companies for fresh sale.
The upper chamber also called on the NCP to rescind the sale of Daily Times of Nigeria (DTN) to Folio Communications Limited in keeping with the court judgments in suit (1) FHC/L/CP/1328/2009, (2) FHC/L/CP/244/10, and (3) FHC/L/CP/130/2010.
The senators advised the Federal Government to implement the Inter-Ministerial Technical Audit Report on Ajaokuta Steel Complex dated July 2011, which recommended the completion and inauguration of the plant by the Federal Government.
Furthermore, it recommended that the BPE should discontinue the use of privatisation proceeds to settle staff terminal benefits, consultancy fees, transaction expenses and execution of capital projects.
The Executive on November 21, 2012 sacked Ms Onagoruwa. It did not link her sack to the Senate’s resolution. Also, the Executive, acting through the BPE, later cancelled the sale of ALSCON to United States-based BFI Group Corporation. It also failed to attribute it to the Senate’s recommendation.
Aside the sack of Ms Onagoruwa and the cancellation of the sale of ALSCON, other vital aspects of the Senate’s resolutions are still pending before President Jonathan.
The Executive has also remained silent on the Senate’s resolution, seeking a total restructuring of the Aviation sector.
The Senate had, upon adopting the report of its committee that probed the crash of Dana Airline plane in Lagos, resolved that then Director-General of the Nigerian Civil Aviation Authority (NCAA), Harold Demuren, be sacked.
They also called for the revocation of the Air Operating Certificate of the airline because it was not issued in full compliance with the Nigerian Civil Aviation (NCAA) Regulations 2009.
The Senate also adopted the recommendation that the CBN should recover the N35.5 billion aviation intervention fund which was extended to Air Nigeria (owned by business mogul Jimoh Ibrahim) and guaranteed and disbursed by the United Bank for Africa (UBA), but was diverted to other uses.
It further recommended that the Federal Airport Authority of Nigeria (FAAN) and the Nigerian Airspace Management Agency (NAMA) be properly equipped.
Till date, aside the recent sack of Demuren, the Executive is yet to fully comply with the various laudable recommendations contained in the Senate’s aviation sector report.
Alarmed by the spate of borrowing by all tiers of government, the House of Representatives on March 27, 2012 via a resolution, urged President Goodluck Jonathan to, within 60 days implement the provisions of the Responsibility Act 2007.
Section 42 of the Act provides for the President of the Federal Republic of Nigeria to set overall limits for the amounts of consolidated debt of the Federal and State governments pursuant to the provisions of Item 7 and 50 of Part 1 of the Second Schedule to the 1999 Constitution (as amended) subject to the approval of the National Assembly.
The lawmakers criticised President Goodluck Jonathan’s alleged consistent disregard of Section 42 of the Fiscal Responsibility Act for failing to fix a debt ceiling.
On July 4 of the saime year, the House of Representatives issued another 90 day ultimatum to President Goodluck Jonathan to fix a debt ceiling for the country. But the President is yet to comply.
On March 11, this year, the House of Representatives Committee on Public Account (PAC) asked the Inspector-General of Police (IGP), Alhaji Mohammed Abubakar, to present the chief executives of the Nigeria National Petroleum Corporation (NNPC), Petroleum Products Price regulatory Agency (PPPRA) and the Director Department of Petroleum Resources (DPR) before it.
The heads of government agencies were expected to provide responses to queries raised by the Office of the Auditor-General of the Federation on the financial records of their organisations. Like the Maina’s case, the IGP is, again, dilly-dallying on this directive.
Critics are of the view that this tradition of flagrant disobedience to parliamentary resolutions and directives by the Executive stems mostly from two sources. First, is the lack of respect for institutions by political leaders, who relish holding the rule of law in contempt. To this group of people, institutions and laws apply only to the poor and under-privileged.
Second, is that state institutions exist only in names. They are not only weak and pliable, their operators lack the independence of mind to apply the rules as they ought to.
To them, even if some parliamentary resolutions do not carry the air of compulsion, the Executive is not at liberty to treat such resolutions with disdain. Being decisions by an arm of government, such resolutions should be accorded the needed respect. They argued that even if such resolutions would eventually not be obeyed, it should be with the consent of the lawmakers.
Some have also argued that the National Assembly is held in contempt perhaps, because it had squandered its reputation before the Executive and is no longer held in high esteem. There is also the argument that the Legislature should learn not to dabble into every issue by passing all manner of resolutions.
Senior Advocates of Nigeria Yusuf Ali and Mohammed Belgore agreed that the growing culture of the elite’s impunity result from the non-observance of the tenets of the rule of law.
In a paper titled: “Democracy today and the rule of law: Perspective of Nigeria’s democratic system”, Ali lamented the violation of the golden rules of democracy by the ruling elite.
“Apart from all these, laws as it is in Nigeria of today are not meant for the elite or the political big wigs to obey, but for the less privileged in the society. The so called custodians of democracy, who are equally supposed to be custodians of the rule of law have abandoned the rule of law, for the rule of politics.
“Judiciary is no more the hope of the common man, since it is apparent these days that the people at the helm of affairs and who claim to be democratic in nature prefer the rule of force, which is alien to democracy to operate instead of the rule of law that is embedded in it.
“A country whose leaders do things that are the exact opposite of the doctrine of democracy, we cannot but conclude that, what we are witnessing in Nigeria today is far from democracy but very close to civil rule, and that our politicians need to have a change of heart by tailoring their governing style in line with the principles of democracy, by upholding the rule of law, which we had earlier said, is a driving force for the sustenance of democracy,” Ali said.
Belgore, in an article entitled: “Where lies the rule of law in Nigeria,” argued that the rule of law hardly exists in Nigeria today. He observed that law enforcement agencies and government officers are the biggest violators of the law
“Yet those very people, who openly violate the law know its value. They treat the law with disdain while in office. They undermine and obstruct it, but once they are out of office or have fallen from grace, they turn to that same legal process for redress. If the law and our institutions are to be robust, independent and just for all and sundry at all times, public officials must learn to respect those institutions, in and out of office.
“It does not require a sociologist or criminologist to figure out that where the law is not supreme, there can be no proper and orderly society. Without order, there can be no peace and certainly without peace, there can be no progress. No nation can be great unless its institutions are bigger than its individuals no matter how high and powerful those individuals are,” Belgore said.
Rights activist Fred Agbaje said the Constitution recognises law-making and passage of resolution as an adjunct of parliamentarian business.
“Whether laws or resolutions, once passed, must be obeyed and implemented by the Executive. Failure to obey same by the Executive can result into conflict or friction between the Legislature and the Executives. And such frictions arising from disobedience and constitutional recalcitrance of parliamentary resolutions by the Executive can lead inescapably, to the impeachment of the President.”
To Emeka Nwadioke, some resolutions of the legislature are mandatory, coercive and carry the force of law while others, though of questionable validity, are merely “advisory”.
He added that it would seem that the legislature, sometimes, overreaches itself, perhaps in its desire to see real change. But, however noble the intendment of the legislature may be, even the courts have frowned on legislative acts which derogate the settled doctrine of separation of powers.
“Instead, the legislators should create separate oversight or public accounts committees to rigorously track its oversight activity, use “confidence votes” to whip heads of MDAs in particular into line, and explore/deepen external oversight mechanisms such as ombudsmen and auditors-general.
“They may hold more public hearings to “name and shame” officials engaged in malfeasance, bolster the publicity around such hearings, deploy the Freedom of Information Act where necessary to access certain documents, and in appropriate circumstances, repeal laws that extend prerogatives to the executive.
“Indeed, the executive may be greatly undermined by public opinion if it fails to act on certain resolutions, even if advisory; the Maina saga is a case in point. The Legislature must be more strategic in engaging the executive if it is to achieve desired results.
“Its seeming helplessness in the circumstances is needless, worrisome and self-defeating. The so-called advisory resolutions must be used sparingly, else they lose their relevance and compromise the standing of the legislature,” Nwadioke said.
To Director, Legal Defence and Assistance Project (LEDAP), Chino Obiagwu, resolutions of the National Assembly or the state House of Assembly are not binding on the executive. They are merely at best advisory and it is only politically expedient for the Executive to implement them for good relationship with both arms of government.
He advised that “If the Legislature is concerned about lack of compliance with its resolutions it should increase its political leverage against the Executive so that it can have more political bargaining powers.
“That is why legislative independence and integrity are important. In situations where many legislatures, especially at the state levels, are mere appendages or rubber stamp of the executives, there is no way such assembly can expect its resolutions to be respected.
“Another way is to make those resolutions into law by preparing a bill on them and passing it. There is no limit to which or what matter the Legislature can make law on or time limit for doing so. In that way, it becomes law and binding,” Obiagwu said.
