‘Legislative oversight as a critical component of good governance’

CONTINUED FROM MONDAY 02/05/2016

However, it seems that the procedure and methodology for legislative approval of key appointments should be re-examined for better efficiency. The Constitution reposes a huge responsibility to scrutinize these appointments on the legislature on behalf of the Nigerian people. This is a function to be taken very seriously.

Removal of certain officials

The Constitution empowers the President to remove certain officials only with the consent of the legislature, mostly the Senate. This power granted the legislature a very serious check on the powers of the President to perform his executive functions. It enables the legislature to oversight the Executive’s prerogative in removal of the category of persons involved. This is a key devise to ensure the independence of the officials involved and to ensure good governance. Presidential power to remove officials cuts across both the Executive and Judiciary.

According to Ben Nwabueze, “the requirement of approval for the exercise of the removal power has more serious consequence for the President.

‘A veto by the Senate … upon removal’, said the US Supreme Court, ‘is a much greater limitation upon the executive branch and a much more serious blending of the legislative with the executive than a rejection of a proposed appointment (Myers V U.S, 272 US. 52, 121 (1926). If a proposed appointment is vetoed by the Senate, this would not frustrate completely the Presidents discretion in respect of the appointment nor greatly embarrass the work of his administration. He can nominate another person of his choice, and he has a wild field from which to choose.

A veto upon removal other hands, will, whenever it is exercised, completely frustrate the president’s discretion”.( Presidential Constitution of Nigeria, 1982) Page 140.

Oversight power to check proclamation of state of emergency
The president has power under the Constitution of the Federal Republic of Nigeria to issue a proclamation of a State of Emergency under S.305, thereof.

S. 305 (1) and (2) says:

“(1) Subject to the provisions of this Constitution, the President may by instrument published in the Official-Gazette of the Government of the Federation issue a Proclamation of a state of emergency in the Federation or any part thereof.

(2) The President shall immediately after the publication, transmit copies of the Official Gazette of the Government of the Federation containing the proclamation including the details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation.”

However, by virtue of S.305 (b), a proclamation issued by the President shall cease to have effect,

“(b) if it affects the Federation or any part thereof and within two days when the National Assembly is in session, or within ten days when the National Assembly is not in session, after its publication, there is no resolution supported by two-thirds majority of all the members of each House of the National Assembly approving the Proclamation;

(c) after a period of six months has elapsed since it has been in force:
Provided that the National Assembly may, before the expiration of the period of six months aforesaid, extend the period for the Proclamation of the state of emergency to remain in force from time to time for a further period of six months by resolution passed in like manner.”

We have mentioned this matter to draw attention to the powers granted the National Assembly to act as a check on Presidential power over declaration of State of Emergency.

State of Emergency declarations has taken place in Plateau State, Ekiti State, Yobe State, Bornu State and Adamawa States since 1999. The National Assembly in the national interest and because of the issue of security involved in each of the declarations supported same.

However, attempt to extend the State of Emergency declarations for the third time with respect to Bornu, Yobe and Adamawa States on grounds of continuing terrorism prevalent in those States, was not successful. The National Assembly simply allowed it to expire, and did not renew it before the expiration of the period of six months as required by S.305(6)(c). This oversight power served as a form of check on Presidential power.

Implementation of treaties

The National Assembly performs crucial oversight responsibilities with respect to implementation of Treaties in Nigeria. Indeed the President has power to enter into treaties on behalf of Nigeria, but such treaties or parts thereof cannot have the force of law except it is enacted by the National Assembly.

Section 12 of the Constitution is directly on the point. It provides as follows: S.12(1)(2)(3);

“(1) No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.

(2) The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty.

(3) A bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the President for assent, and shall not be enacted unless it is ratified by a majority of all the House of Assembly in the Federation.”

The Supreme Court considered this matter in Abacha V. Fawehinmi (2000) 6NWR (Pt 660) 228 SC. P 246 and held that:

“An international treaty entered into by the Government of Nigeria does not become binding until enacted into law by the National Assembly. Before its enactment into law by the National Assembly, it has no such force of law as to make its provisions justifiable in our courts. This was the tenor of Section 12(1) of the 1979 Constitution now re-enacted in Section 12(1) of the 1999 Constitution.”

Power to conduct investigations

The conduct of investigation by the Legislative arm is at the core of legislative oversight powers granted by the Constitution. Section 88 and 128 of the 1999 Constitution grants the National and State assemblies powers “to direct or cause to be directed an inquiry or investigation into – (a) any matter or thing with respect to which it has power to make laws; and (b) the conduct of affairs of any person, authority, ministry or government department charged, or intended to be charged, with the duty of or responsibility for (i) executing or administering laws enacted by the National Assembly (State Assembly), and (ii) disbursing or administering moneys appropriated or to be appropriated by such House.”

However, this investigative power is not without limitation. Sub-section 2(a)(b) stipulates that “The powers conferred on the National Assembly under the provisions of the section are exercisable only for the purpose of enabling it to (a) make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and (b) expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.”

Also, Sections 89 and 129 of the 1999 Constitution empower the legislature to procure evidence, summon persons to give evidence and require such evidence to be given on oath through examination of witnesses. The legislature can also issue a warrant to compel attendance by any person so required, on order of punishment if they fail to attend.
Examples of Landmark Legislative investigative Hearings in Nigeria: Permit me, ladies and gentlemen to repeat what I said elsewhere on this subject:

“Perhaps the National Assembly has contributed more to our democracy through its power to conduct investigations and Oversight than has been credited to it. It has carried out countless investigations and exposed corruption, and mismanagement of government resources on a massive scale. Landmark investigations have taken place in many sectors of the economy including the power sector; fuel subsidy; Customs Service; Capital Market; petroleum sector; transport sector; pension sector, among others. The power of oversight of the executive arm is anchored on Section 88 and 89 of the Constitution.

Cynical commentators have always said that nothing comes out of National Assembly investigations. They claim that it is a waste of time. This position underplays the very fact that it is only mainly through these investigations that the citizen is made aware of what goes on in government. The power to bring out information in the public domain is a major service in our democratic system of government. Not even the media are in a position to compel disclosure of information the way the National Assembly can.

It was Woodrow Wilson, (1885) who said: “The informing function of Congress should be preferred even to its legislative function. Unless Congress have and uses every means of acquainting itself with the acts and dispositions of the administrative agents of the government, the country must be helpless to learn of how it is being served, and unless Congress both scrutinise these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important it should understand and direct.”

It is important to understand that the National Assembly is not an executing agency. When it conducts investigations, it passes its reports in the form of resolutions to the executive arm to implement, except where the findings require legislation or amendment of existing laws. If the executive fails to execute, it is within the domain of the civil society and stakeholders to mount pressure on them to act.”

In the 8th House of Representatives, many important investigative hearing have also been conducted, and some are ongoing. These include the Railway Contracts investigation etc.

Removal of chief executive/impeachment as an instrument of oversight to guarantee good governance
One of the most critical constitutional powers entrusted to the legislature to ensure good governance is perhaps that of removal from office/ impeachment of the Chief Executive of the Federation or State. The National Assembly and the House of Assembly of States can remove the President and Vice President, State Governors and Deputies respectively from office as provided by Section 143 and 188 of the 1999 Constitution.

It is a power that reminds the Chief Executive that he could be removed anytime from office for gross misconduct which has been defined as “a grave violation or breach of the provisions of (the) Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct”. S. 147(11). This power must however, not be exercised based on sentiments but on evidence of gross misconduct.

It is worthy of note that the power of impeachment/removal from office is also exercisable on the presiding officers of the National Assembly or State Assembly – The President of the Senate and Deputy President of Senate, The Speaker and Deputy Speaker of the House of Representatives and House of Assembly of States. This is provided for in Sections 50(2)(c) for the National Assembly. There have been several instances of impeachment in our political history. A case in point was the impeachment of Balarabe Musa in the Second Republic and Gov. Murtala Nyako, Former Governor of Adamawa State. Also impeached was Chief Sunday Onyebuchi, the Former Deputy Governor of Enugu State. How justified the impeachments were, is what Nigerians are yet to come to terms with. The Supreme Court has however struck down many impeachments/ removals from office that have not followed the due process of law. Examples include those of Gov. Peter Obi of Anambra State; Senator Ladoja of Oyo State, Gov. Joshua Dariye of Plateau State, Gov. Murtala Nyako of Adamawa State, just to mention a few.

Supervision and monitoring of projects

Another important aspect of oversight that ensures good governance to the people is through the physical supervision and monitoring of projects and programmes embarked on by the Executive arm of government. The legislature is charged to check, raise questions and where necessary direct the executive through the Ministers or Commissioners in charge or heads of various agencies to appear before the House to defend any allegation of non-performance, or abandonment or shoddy execution of projects as appropriated. This is one of the ways to ensure that appropriated funds are used for the purposes intended by the Legislature.

The power to control spending of public funds and monitoring of the budget:

In a bid to ensure that government performs her statutory responsibility of catering for the welfare of the people, the law empowers the legislature to ensure effective allocation and management of public funds. The legislature also exhibits great influence over the borrowing powers of the State. All these are to ensure prudent management of public funds and promotion of good governance. This is demonstrated by Section 81(1) of the 1999 Constitution which says that “the President shall cause to be prepared and laid before each House of the National Assembly at any time in each financial year estimates of the revenues and expenditure of the Federation for the next following financial year.

Section 80(1) provides that all revenues or other moneys raised or received by the Federation (not being revenues or other money payable under this Constitution or any Act of the National Assembly into any other public fund of the Federation established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund of the Federation. Section 80(4) states that no money shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation except in the manner prescribed by the National Assembly.”
Receipt and implementation of the Auditor General’s Report:

Another major instrument of oversight over activities of all organs of government is through the means of the Auditor-General’s Report.

The Constitution provides in S. 85 as follows:

“85. (1) There shall be an Auditor-General for the Federation who shall be appointed in accordance with the provisions of section 86 of this Constitution.

(2) The public accounts of the Federation and of all offices and courts of the Federation shall be audited and reported on to the Auditor-General who shall submit his reports to the National Assembly; and for that purpose, the Auditor-General or any person authorised by him in that behalf shall have access to all the books, records, returns and other documents relating to those accounts.”

There is however, a draw back to the accountability principles herein introduced under S.85(2). This is because Sections 85(3) and 85(4) seem to limit the powers of the Auditor General to enthrone good governance and accountability. These sections provide that:

(3) Nothing in subsection (2) of this section shall be construed as authorising the Auditor-General to audit the accounts of or appoint auditors for government statutory corporations, commissions, authorities, agencies, including all persons and bodies established by an Act of the National Assembly, but the Auditor-General shall –

(a) provide such bodies with –

(i) a list of auditors qualified to be appointed by them as external auditors and from which the bodies shall appoint their external auditors, and
(ii) guidelines on the level of fees to be paid to external auditors; and

(b) comment on their annual accounts and auditor’s reports thereon.

(4) The Auditor-General shall have power to conduct checks of all government statutory corporations, commissions, authorities, agencies, including all persons and bodies established by an Act of the National Assembly.

(5) The Auditor-General shall, within ninety days of receipt of the Accountant-General’s financial statement, submit his reports under this section to each House of the National Assembly and each House shall cause the reports to be considered by a committee of the House of the National Assembly responsible for public accounts.

(6) In the exercise of his functions under this Constitution, the Auditor-General shall not be subject to the direction or control of any other authority or person.

We as a parliament need to take another look at this confusing state of the law. The 1979 Constitution did not contain these exceptions mentioned in Sections 85(3) and (4). It was first introduced in the still-born 1989 Constitution of General Ibrahim Babangida and repeated in the 1999 Constitution.

However, whatever interpretation given to such phrases as that the Auditor-General shall “comment on their annual accounts and auditor’s reports thereon.”, or “shall have power to conduct checks of all government statutory corporations, commissions, authorities, agencies, including all persons and bodies established by an Act of the National Assembly,” it is clear that a report emanating from the activities of the Auditor-General shall be submitted to the National Assembly for legislative action.

The legislature would rely on its lawmaking powers under section 4 or under S.88 and 89 or indeed under S.85(5) of the Constitution to act on these reports and draw attention to instances of corruption, fraud, abuse of office, inefficiency, mismanagement or misappropriation of funds.

This is a major weapon in over- sighting all governmental institutions in order to ensure good governance.

In this regard, the Auditor-General has just released the 2014 Auditors Report. I can assure Nigerians that the National Assembly will study the report and cause same to be thoroughly investigated and would ensure that any proven cases of corruption or lack of transparency or accountability is appropriately dealt with.

Oversight over states and local governments in the federation:

In a federation such as Nigeria, the states are largely independent and autonomous. There are however, many provisions of the Constitution that seem to place certain activities of the states within the oversight and supervisory jurisdiction of the federal government, especially the National Assembly, starting from Section 4 of the Constitution, in order to ensure good government.

Section 4(2) provides that “the National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.

4(4) In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say: –

(a) any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and

(b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.

4(5) If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall, to the extent of the inconsistency, be void.”

These provisions support the constitutional law principle of covering the field. This principle was upheld by the Supreme Court in Attorney General of Bendel State vs Attorney General of the Federation (1983) wherein it was held that:

“It is settled law that in a federal system of government the National or Federal legislature ought not normally to pass a law which interferes with the machinery (functionaries inclusive) of State Government such as by imposition of a duty on a State authority or functionary. The converse situation hardly ever arises because in most federal government Constitutions it is provided that where the provision of the law of a State Government conflicts with that of the National or Federal Government the former becomes, to the extent of the conflict, invalid.” Per IDIGBE, J.S.C

Power of the National Assembly to make laws for states in times of war and inability of House of Assembly to function.

The National Assembly is imbued with constitutional power to take over and make laws for any State House of Assembly that is unable to function as a result of situation prevailing in the state.

Section 11(3): provides that “During any period when the Federation is at war, the National Assembly may make such laws for the peace, order and good government of the Federation or any part therefore with respect to matters not included in the Exclusive Legislative List as may appear to it to be necessary or expedient for the defence of the Federation.”

Section 11(4): provides that “At any time when any House of Assembly of a State is unable to perform its functions by reason of the situation prevailing in that State, the National Assembly may make such laws for the peace, order and good government of that State with respect to matters on which a House of Assembly may make laws as may appear to the National Assembly to be necessary or expedient until such time as the House of Assembly is able to resume its functions; and any such laws enacted by the National Assembly pursuant to this section shall have effect as if they were laws enacted by the House of Assembly of the State:

Provided that nothing in this section shall be construed as conferring on the National Assembly power to remove the Governor or the Deputy Governor of the State from office.

11(5) For the purposes of subsection (4) of this section, a House of Assembly shall not be deemed to be unable to perform its functions so long as the House of Assembly can hold a meeting and transact business.

These constitutional provisions are not merely decorative. They have been invoked and applied recently in two different States of the federation. In Rivers State in 2013, five members of the State House of Assembly effectively took over the responsibilities of a 32 member House and became the majority in the Rivers State House of Assembly. They purportedly removed the Speaker and installed a new one with 5 members!! This led to violence on the floor of the house and clear and present danger of breakdown of law and order in the State. The National Assembly invoked Section 11(4) of the Constitution and in a concurrent Resolution of both Chambers of the National Assembly, took over the functions of the State House of Assembly because of its inability to continue to transact legislative business. This resolution effectively saved a situation where only 5 members would have continued to sit and thereby making a mockery of our Constitutional democracy.

Only recently, the same scenario was played out in Kogi State. On February 16, 2016, again five members of the House of Assembly, purportedly removed the Speaker in a 20 member House of Assembly, and continued to function as the legitimate legislature of the State! This also led to inability of the House to continue functioning. This 8th National Assembly, as guardians of our democracy and Constitution, once again rose against impunity and reckless political behaviour by using its oversight powers under Section 11 (4) of the Constitution, to take over the functions of the Kogi State House of Assembly, in a concurrent resolution of both Chambers. The law making powers of the Kogi House of Assembly will be immediately restored as soon as normalcy returns to that House as the National Assembly only intervened to safeguard our democracy and constitutionalism.

• Dogara, Speaker, House of Representatives