‘Legislative oversight as a critical component of good governance’

Being a convocation lecture delivered by Dogara Yakubu, Speaker, House of Representatives, at the fourth convocation of Achievers University, Owo, Ondo State on April 9, 2016.

Preamble
Distinguished ladies and gentlemen, I feel deeply honoured to have been invited as guest speaker by Achievers University, Owo, to present this convocation lecture on the auspicious occasion of the 4th Convocation ceremony of this prestigious university. First, I will like to congratulate the management and staff of Achievers University for putting together this memorable event and most especially wish to congratulate the graduands from the different departments, who today are the stars of the occasion. Achievers University should be proud of its achievements, having over the years churned out quite a number of first class graduates, who I believe are already impacting on their immediate society wherever they may be.

Introduction
The topic for today’s lecture is ‘Legislative Oversight as a Critical Component of Good Governance.’ This choice of topic is borne out of the anticipated audience of erudite personalities assembled here and also the need to discuss and share different perspectives about the roles and responsibilities of the legislative arm of government, in ensuring good governance.

It was Bo Li in his book entitled: “What is constitutionalism” that made the famous saying that “tyrants will not be benevolent rulers simply because the constitution tells them to. In order to guard against violations against the letter and spirit of the constitution, there needs to be a set of institutional arrangement.”

In a federal structure like ours, where a democratic system of government is in place, there are fundamental principles that enthrone good governance. The institutional arrangement is reflected in the distribution of governmental powers between the three arms of government, namely, the executive, the legislature and the judiciary. The principles that guide operations of the three arms include autonomy, separation of powers and checks and balances. It is on the basis of the performance and interaction of these arms of government that good governance is assessed and determined.

Nigeria adopts a bicameral legislature at the Federal level – Senate and House of Representatives, known as National Assembly. While in the States, the legislature is unicameral – House of Assembly.

For the purpose of this paper, focus will be more on the federal level, for ease of convenience. The nature of this paper is primarily descriptive in the sense that it will define broad conceptual issues on the role of the legislature and governance. It is also explanatory as the paper delves into the functions of the legislature and the effectiveness of this organ of government in ensuring and sustaining good governance in the Nigerian polity.

The paper will further examine some provisions of the constitution and the principles of separation of powers, the principles guiding oversight powers of parliament and checks and balances. Concrete illustrations from the Nigerian democratic experience and jurisprudence will also be explored. This paper will finally conclude by identifying the limitations and challenges of legislative oversight in the Nigerian political context.

In the Legislative Agenda adopted by the House of Representatives to guide its activities for four years, the House made the following commitment with respect to Legislative Oversight matters:

“Legislative and executive programmes, policies and laws made by the National Assembly are often not efficiently or effectively implemented by the executive branch. Further legislative intervention therefore becomes necessary in order to implement laws passed by the National Assembly and detect and correct problems when they arise. Consequently, oversight of executive programmes and activities has become very critical to effective performance of the Executive and good governance in Nigeria.

The House Oversight activities shall leverage on the constitutionally mandated power of investigation under Sections 88 and 89 of the constitution to expose corruption, inefficiency and waste in the conduct of government business. Further powers as contained in the Legislative Houses (Powers and Privileges) Act will be effectively utilised.

The 8th House has the necessary political will and capacity to continue with vigorous oversight of the executive branch as this promotes accountability and reduces incompetence, misuse of government funds and abuse of power. Where necessary, the House shall institute an appropriate system to involve CSOs, citizen monitoring groups, and the Media in Oversight and monitoring and evaluation of projects.

In carrying out its Oversight and Investigative Hearing activities, the House shall ensure that its powers are not misused or abused by either Members or Committees. To this end, the 8th House shall strengthen its processes, Rules and internal structures to support its Oversight and Investigating Hearing activities and ensure full access to all government financial information. It shall also develop mechanisms to sanction those who do not cooperate with its oversight or investigative activities or who refuse to implement legislative wishes or resolutions.

Indeed, the House would ensure that full amplitude of its constitutional powers, financial, human and political resources are deployed to carry out its investigative or oversight activities.

Definition of concepts
It is important to first explain some key concepts before delving into the crux of the paper. They include good governance, legislature, legislative oversight, separation of powers and checks and balances.

Good governance
The term ‘Good Governance’ has very broad connotations. It is not necessarily defined in any written law. The closest description is as contained in Chapter 2 of the Constitution which provide for fundamental objectives and directive principles of State policy. This Chapter lays out the broad principles and objectives that the State should aspire to in order to attain good governance. In addition and in particular, Sections 4(2) and 14(2)(b) of the Constitution 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 …’ and Section 14(2)(b) of the Constitution proclaims that ‘the security and welfare of the people shall be the primary purpose of government’

Good governance could generally be described as governance that meets or satisfies the yearnings or needs of the people in terms of development and welfare. Good governance has also been defined.

‘As the process of allocating resources through the instrumentalities of the state, for the attainment of public good. Thus, good governance includes institutional and structural arrangements, decision making processes, policy formulation and implementation capacity, development of personnel, information flows and the nature and style of leadership within a political system. Hence, governance is largely about problem identification and solving.’ (Ilufoye, 2010)

Manual on Fiscal Transparency, IMF 2007: also defines good governance as:
“The process by which decisions are made and implemented (or not implemented). Within government, governance is the process by which public institutions conduct public affairs and manage public resources. Good governance refers to the management of government in a manner that is essentially free of abuse and corruption, and with due regard to the rule of law.”

However, in a democratic regime good governance has three principal characteristics: Participation, transparency and accountability.

Participation essentially has to do with involvement and inclusiveness of the citizens in the affairs of government. The public plays a significant role in choosing their leaders and representatives. In the Nigerian context, the legislature provides for public participation in the legislative activities and processes when it calls for memoranda from the public and when it conducts public hearings.

This enhances citizens access to the legislature and contributes to good governance. In the House of Representatives, in particular, the mechanism of Public Petitions Committee, guarantees that citizen’s grievances are presented and ventilated before the representatives of the people. All these speak to the constitutional prescription in Section 14(2)(c) to wit: “The participation by the people in their government shall be ensured in accordance with the provisions of these constitution.”

Transparency envisages that activities and decisions of government are open to public view and scrutiny. When we open our Committee and government meetings to the press and the public, when our budgets and expenditures are reviewed by citizens; when our courts and legislative chambers admit the public; when our laws, rules and decisions of government are open to discussion, they are seen as transparent and there is less opportunity for any authority to abuse the system. This position is further reinforced by the Freedom of Information Act, initiated and passed by the National Assembly to aid good governance and accountability. This law specifically makes public records and information more freely available to any citizen. Transparency strengthens democracy, promotes efficiency and effectiveness in governance.

Another ingredient of good governance is accountability. Accountability denotes the degree to which government or any of its agencies are held responsible for its actions. In the legislature, members of parliament give periodic account of their stewardship to their constituents during constituency briefings. The four-year tenure also ensures that political office holders render accounts of their stewardship to the electorate especially before any possible renewal of mandate. Accountability also enhances democracy, promotes efficiency and effectiveness in governance.

The key principles of good governance in the public sector
‘The function of good governance in the public sector is to ensure that entities act in the public interest at all times.

Acting in the public interest requires:
Strong commitment to integrity, ethical values, and the rule of law; and openness and comprehensive stakeholder engagement.
In addition to the requirements for acting in the public interest, achieving good governance in the public sector also requires:
Defining outcomes in terms of sustainable economic, social, and environmental benefits;
Determining the interventions necessary to optimize the achievement of intended outcomes;
Developing the capacity of the entity, including the capability of its leadership and the individuals within it;

Managing risks and performance through robust internal control and strong public financial management; and implementing good practices in transparency and reporting to deliver effective accountability.’ (Consultation Draft of the proposed International Public Sector Governance Framework (International Framework) developed jointly by the Chartered Institute of Public Finance and Accountancy (CIPFA) and the International Federation of Accountants (IFAC).

The legislature
The legislature is the most notable symbol of democracy. It can be defined as the arm of government composed of elected representatives or constituent assembly of people whose role is to make, review and repeal laws for the good and wellbeing of society as well as serve as a watchdog over the activities of government. The legislature controls through legislation all economic, social and political activities of a nation. Hence, the legislature is seen as the watchdog over other arms of government. Good governance is dependent on the type of laws enacted by the legislature. It can therefore be said that the power and efficacy of the legislature in performing its constitutional roles by providing visionary leadership determines to a large extent the success of the entire system of government. Any impediment to the functions and powers of the legislature directly affects good governance.

Section 4 of the Nigerian Constitution establishes the Legislature: “The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives”. Similarly, Section 4 (6) provides that “The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.” The legislature is referred to as Parliament in Britain, Congress in the United States and National Assembly in Nigeria. Whatever the nomenclature, it is safe to say that all functioning legislatures in democratic nations have the roles of representation, law making, and oversight.

What is legislative oversight?
The use of the term ‘oversight’ is credited to Prof. Woodrow Wilson and he defined it as the “duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice and to embody the will and wisdom of its constituents.” It has also been as “the review, monitoring and supervision of government and public agencies, including the implementation of policy and legislation.” Legislative oversight involves keeping an eye on the activities of governmental agencies especially the executive branch on behalf of the Nigerian people. This process brings to the knowledge of the public what the executive branch is doing, and affords the electorate the opportunity to determine whether public servants are really serving their collective interest or not.

Oversight can be performed ex ante i.e. during the design and implementation of a program or policy and also ex post, after its implementation. This legislative function is often referred to as the watchdog role. One of the cardinal merits of investigative hearings or oversight is that it puts public officers on their toes, literarily. Persons who deal directly with public funds and government policy are made aware that their conduct could be examined or called into question by an alert legislature desirous of public good. This acts as a restraining influence on governmental action.

Development of legislative power of oversight
Where then does the legislature derive the power to oversee another arm of the government? The answer to this question differs in different jurisdictions. For example, in the United States, Congress oversight is an implied rather than an enumerated power under the U.S. Constitution. The U.S. Constitution does not explicitly grant Congress the authority to conduct inquiries or investigations of the executive branch, to have access to records or materials held by the executive, or to issue subpoenas for documents or testimony from the executive.

However, ‘Congress oversight is derived from the many and various express powers of the Congress in the Constitution. It is implied in the legislature’s authority, among other powers and duties, to appropriate funds, enact laws, raise and support armies, provide for a Navy, declare war, and impeach and remove from office the President, Vice President, and other civil officers. Congress could not reasonably or responsibly exercise these powers without knowing what the executive was doing; how programs were being administered, by whom, and at what cost; and whether officials were obeying the law and complying with legislative intent.

Consequently, the Supreme Court of the United States has confirmed the oversight powers of Congress, subject to constitutional safeguards for civil liberties, on several occasions. In 1927, for instance, the High Court found that in investigating the administration of the Justice Department, Congress was considering a subject “on which legislation could be had or would be materially aided by the information which the investigation was calculated to elicit.” (Congressional Oversight, Wikipidia)

It can therefore be safely said that congress oversight in United States is a matter of practice and only consolidated over the years through judicial precedent and statute law. In Nigeria however, the National Assembly derives its oversight powers from various provisions of the Constitution, directly and mainly from sections 88 and 89 of 1999 Constitution.

Purposes of oversight
As earlier noted, legislative oversight promotes checks and balances, it instills fiscal discipline, good governance, accountability and transparency in public offices. ‘It also serves a number of other objectives and purposes such as:
Improve the efficiency, economy, and effectiveness of governmental operations;
Evaluate programmes and performance;
Detect and prevent poor administration, waste, abuse, arbitrary and capricious behaviour or illegal and unconstitutional conduct;
Inform the general public and ensure that executive policies reflect the public interest;
Gather information to develop new legislative proposals or to amend existing statutes; ensure administrative compliance with legislative intent; And prevent executive encroachment on legislative authority and prerogatives’. (Madae S.M.).

Oversight mechanisms
Oversight mechanisms are the processes, tools, methods and actions that the legislature deploys to carry out and to enforce their oversight functions. Such tools include Committee investigative hearings, public hearings, hearings in plenary sittings and public petitions. Legislative Committees may also call for reports and explanations from government ministries, departments and agencies (MDAs), on any activity of government.

The Auditor General also sends annual reports to the Public Accounts Committees of both chambers of the National Assembly. In addition, Committees engage with MDA’s on appropriation bill, which entails a review of each MDA’s annual budget estimates, defense of such budgets and recommendations to the Appropriation Committee. Quite frequently, the National Assembly conducts oversight inspection visits and confirmation/screening of nominees.

Separation of powers and checks and balances
Under the 1999 Constitution of the Federal Republic of Nigeria (CFRN), legislation, execution and adjudication of disputes, are separated and vested in different organs which are basically independent of one another in terms of their existence and personnel. This is an essential feature of Presidential System of Government.

In Mallam Nasir Ahmed El-Rufai Vs The House of Representatives, National Assembly of the Federal Republic of Nigeria. CA/A/154/2002”, Justice Oguntade, JCA, as he then was, on Page 956, para 25-30), said that:
“It is also a cardinal principle of the Constitution that it operates on a system of checks and balances. Each department has, in certain instances, been vested with powers by the Constitution to confirm or check the exercise of powers of the other departments. It is also the duty of each department to support the other department in carrying out its responsibility under the Constitution.”

The legislature in Nigeria, guards its independence jealously, but is patriotic enough to realise, that the government is necessarily only one, and cooperation rather than confrontation with the other branches, particularly the executive, leads to a workable governmental framework. The Nigerian Constitution is designed in such a way that the legislature checks and balances the executive, and vice versa. This helps to protect liberty and avoid authoritarianism and dictatorship. Indeed as stated by Justice Brandeis of the U.S. Supreme Court:

“The doctrine of the separation of power, was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”

“Ambition must be made to counteract ambition” argued James Madison in the Federalist. That is why the president is given the power of veto of legislation, and the legislature is given the power of oversight over Executive action. The Constitution vests federal legislative power in the National Assembly (Section 4) thereby separating it from executive power which it separately vests in the President (Section 5).

John Locke has noted that “it may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make and suit the law both in its making and execution to their own private advantage.”

To promote good governance, therefore, the legislature as a symbol of true democracy must at all times be seen to exercise its functions free from external influence and coercion. Other elements such as financial autonomy of the legislature, free and fair elections and issues of party control, politically contribute to the independence or otherwise of this arms of government.

Legislative power of oversight
The functions of the legislature in a modern democratic State extend beyond law making to oversight of the entire sphere of government. Legislative oversight connotes the power of the legislature to oversee and monitor programmes and activities of government agencies and review policy implementation strategies of the executive arm of government. The power of oversight of the Legislature is provided for in the 1999 Constitution, existing laws, practices and usages of Parliament, and judicial pronouncements, as follows:

The power of confirmation of appointments
In order to entrench good governance especially in matters that are sensitive to public trust, the legislature is given the power of sanctioning certain key appointments of the Executive arm. This is a major form of supervisory Oversight of the Executive arm as these appointments cannot be made without legislative approval.

The Nigerian Constitution provides for instances where presidential appointments must receive the consent of the Legislature. This includes – appointment of Ministers of the Federal Republic of Nigeria; appointment of ambassadors and Nigeria’s representatives abroad; appointment of certain judicial officers; approval of the number of Special Advisers for Mr. President; appointment of a new Vice President in the event of a vacancy occurring;

Appointment of Chairmen and members of Federal Executive Bodies also require legislative approval constitutionally speaking. These include, Federal Character Commission; Independent National Electoral Commission (INEC); Federal Civil Service Commission; National Population Commission; Police Service Commission; Code of Conduct Bureau; the Auditor- General:

Apart from constitutional mandates for legislative approval of certain appointments, many statutes also provide for legislative consent to key executive appointments. Examples abound. The NCC Act, NDDC Act, The CBN Act, FIRS Act, AMCON Act, to mention just a few, require that their Chairmen and members shall receive legislative consent. The legislature ensures that the requests sent to it by the executive are properly examined, debated before they are approved or disapproved.