Regional Editor (News), Olawale Rasheed, examines the ongoing controversy over the enforcement of the resolutions of both houses of the National Assembly by the executive arm of government, concluding that mandatory enforcement of legislative resolutions breaches the constitution and the concept of separation of powers.THE controversy over non-implementation of legislative resolutions is providing analysts opportunities to examine the roles of the three arms of government within the context of separation of powers. The issue is raising, once again, the limit of powers of each arm and the vexed question of encroachment on each other's sphere of authority.During the Olusegun Obasanjo presidency, the altercations were about the executive's overbearing conduct which the lawmakers complained amounted to unwarranted usurpation of legislative rights by the presidency. Under the current administration, the nation appears to be witnessing a more militant legislature desirous of expanding its area of authority outside the constitutional scope. The legislative chiefs may have perceived a weak executive which they can compel to submit to legislative veto of executive actions.In recent weeks, the lower house had insisted on the removal of an executive officer, Mrs Arunma Otteh, based on a resolution of the House. The upper house also issued a similar ultimatum, calling for the removal of the Director General of the Bureau of Public Enterprises, Bolanle Onagoruwa. Aside these two resolutions, there are countless others which the two chambers believed, rightly or wrongly, should be implemented by the executive without questioning. Capping the insistence on mandatory enforcement is the disguised threat of impeachment from the Senate on issues such as the alleged non-implementation of the Appropriation Acts.Commentators varied in their responses to the development. While many had taken one side or the other, none has yet dug into both the constitutional and legal frameworks that should guide and inform the actions and conducts of all arms of governments. Certain pertinent questions should be raised in this discourse. Can the legislature take over executive responsibilities through its resolutions and still be in compliance with the constitution' Can legislative investigative reports supersede statutory responsibilities of executive agencies, especially in criminal matters' Are there examples of best practices that can serve as a guide for the resolution of this controversy'The 1999 Constitution was explicit enough in Part Two titled Powers of the Federal Republic of Nigeria. The legislative powers of the Republic shall be vested in a National Assembly with the two chambers mandated 'to make laws for the peace, order and good government of the Federation ' On the hand, the constitution vests executive powers of the Federation in the President or any of his staff with a sub-section stating that the powers 'shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws. 'The constitution further notes in Section 58[1] that the powers of the legislature to make laws shall be exercised by bills passed by both chambers of the legislature. If the executive delayed assent to a duly passed bill, the constitution also provide for the procedure to override such a presidential veto consequent upon which the bill become law. Hence, legislative powers not exercised through bills may be null and void if subjected to the rigour of legality. Two, legislative powers duly exercised by the legislature can be enforced on the president through a two third overriding of a presidential veto.There is another dimension to the powers of the legislature. The legislature shall have power by resolution to direct or cause to be directed, investigations into matters on which it has power to make laws such as the conduct of any person or agency with the duty of executing laws enacted by National Assembly and disbursing money appropriated by the National Assembly. That is Section 88[1] of the constitution. The scope of this section was however immediately limited by Section 88[2] which states that the powers conferred on the National Assembly under the provisions of this section are exercisable only for the purpose of enabling it to make laws and expose corruption, inefficiency or waste in the execution of laws within its legislative competence. Any exercise of this section which goes beyond lawmaking or exposing corruption or waste may thus be out of tune with the law.If the power of resolution under this section is applied to make laws and the president assents to it, it becomes binding. If the power is applied to expose corruption or inefficiency in the handling of public fund, then the report must be handed over to the statutory executive bodies for investigations and subsequent prosecutions. In whatever ways the legislature exercises its powers in both sections 58 and 88, the president or his officers are still constitutionally charged with implementation. So far, nothing in the constitution indicates the possibility of the legislature taking over the task of the day-to-day running of government and implementation and execution of relevant laws and the constitution.The second pertinent issue is whether legislative investigative reports can replace the investigative and prosecutorial responsibility of executive agencies, especially in criminal matters. For example, the National Assembly conducted public hearings and compiled reports on various sectors of the economy and governments. Some of the reports allegedly indicted some executive officials which the two chambers now followed up with a resolutions calling for their immediate sack. In the first place, issues investigated by the legislative committees probably border on criminal conducts of appointed officials. Statutorily and according to the laws passed by the legislature itself, only executive agencies can take definite prosecutorial decisions on criminal matters. Even at that, the executive agencies must commence prosecution of such officers only if satisfied that existing laws have been breached. Only a competent court of law can then pronounce such officers guilty or otherwise. In effect, National Assembly reports, no matter how factual, cannot be a basis for taking disciplinary decisions, especially in criminal matters.The other issue is to note that the Nigerian legislature has also not fully developed its range of instruments in dealing with the executive. For example, the Nigeria legislature has only one generic type of resolution while the United States (US) Congress has three, namely simple resolution, concurrent resolution and joint resolution. Simple resolution applies to internal legislative matters. The Congress uses concurrent resolution to express collective opinion on policy issues. American legislative experts are unanimous that concurrent resolutions do not have the power of law because they are not approved by the president. They also cautioned that concurrent resolution should not be confused with joint resolutions or bills both of which require the approval of the president and have the force of law. The third form of resolution, joint resolution, however differs from the above. According to American Congress reports, 'joint resolution is a form of legislation used by the United States Congress to approve a legal action. It is essentially the same as a bill since it acts as proposed legislation. Both a bill and a joint resolution require passage by the House of Representatives and the Senate.'Legally, a joint resolution is voted on by both houses. Once debate on the issues ends and a vote takes place, the House and Senate must pass the measure by a majority. This is then sent to the president for signature or veto, otherwise it must remain unsigned for 10 days to become law. If a veto takes place, it is returned to Congress and new debate occurs or an attempt at overriding the veto is undertaken. In order to override the presidential veto, both houses of Congress must pass the bill again with a two-thirds majority,'' the report noted.In effect, even in the US, a resolution has no force of law except the joint resolution whose existence is also tied to the bill-making process. As an American writer puts it, resolutions are not laws; resolutions, which are not legislative in character, are used primarily to express principles, facts, opinions, and the purposes of both the House and the Senate.Checks showed that even in the US, the American Congress had attempted to extend its scope of authority on several occasions. But a United States Supreme Court had ruled, as early as 1983, that concurrent resolution could not be used to curtail or limit executive powers. In the case of Immigration and Naturalisation Service v. Chadha, the US Supreme Court invalidated the legislative veto that had enabled the US Congress to veto certain executive actions, ruling that such legislative action violated the principle of separation of powers. The court held that legislative vetoes represented a subversion of the 'single, finely wrought and exhaustively considered procedure' for enacting legislation. The case was acclaimed as representing an important moment in defining the extent of executive and legislative powers in the US political system. The ruling indeed barred the Congress from promulgating a statute granting to itself a legislative veto over actions of the executive branch inconsistent with the bicameralism principle.Chief Justice Warren E. Burger was quoted as insisting that 'explicit and unambiguous provisions of the constitution prescribe and define the respective functions of the Congress and of the Executive.' Any valid congressional mandate, he explained, must include passage by both houses of Congress, followed by presentment to the president, whose veto could be overridden only by a two-thirds vote in both houses.While Nigeria and the US represent different jurisdictions, Nigeria largely copied its presidential system from the US. It is also instructive to note that both constitutions have nearly similar modes of lawmaking and overriding of presidential vetoes. Making implementation of resolutions mandatory for the executive arm may clearly be seen by analysts an attempt to hijack executive responsibility. Such an act may amount to a direct violation of the constitution, especially sections 58 and 88.Some commentators had however argued that some of the resolutions are in the public interest and their implementation should be enforced. Since the National Assembly obviously lacks such powers, other options can be employed. Where the legislature feels so strong about a resolution, it can seek the path of lawmaking to push its position, it was suggested. This may involve amendment of an agency act or otherwise. Even at that, the constitution forbids the making of any law capable of taking away executive powers of the executive arm of government. The other option is for a change of the system of government the nation is practising through comprehensive amendment of the constitution. In the present system, lawmakers are elected to make laws and perform oversight. They are not to execute such laws. This is in tandem with the presidential system of government, with an entrenched separation of powers principle. If the nation goes parliamentary, the situation may then change and the lawmakers can be part of both lawmaking and implementation arms of government.While the Senate may be cross with the Information Minister, Labaran Maku, the fact remains that, in line with the constitution, a National Assembly resolution is simply advisory unless transformed into a bill for presidential assent. The current clamour for enforcement of legislative resolution thus falls within the realm of the parliamentary system, not a presidential system. As long as Nigeria operates the present constitution, the National Assembly may not legally have its way on the mandatory implementation of its resolutions.
Click here to read full news..
