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ABSTRACT

        The legislature which is a very important institution and arm of government in any civilized democracy is indeed, where the real representation of the people is most manifest, in the sense that it is the arm of government where the majority of the elected representatives of the people are concentrated. It is important also because it serves the critical function of check and balance in a democracy. It is unique in the sense that it is saddled with the main responsibility of law making. The importance of the legislature in a democracy like ours (Nigeria) is underscored by being provided for in the constitution of this country. All aspects of the legislature, ranging from its composition, structure, administration, process and procedures of its operations, to its powers, duties and responsibilities have been spelt out in the constitution of the Federal Republic of Nigeria (1999) as amended.

CHAPTER ONE

INTRODUCTION

The existence of a functioning legislature gives or contributes enormously to the democratic development of a nation and even in the areas of economic and human development. The legislature therefore remains an important organ of the state that should be protected.

        There is no doubt that members of the legislative chambers nationwide have not helped themselves and the hallowed institution that they represent by their acts which are less than honourable. Notwithstanding the above, the legislature is a strong catalyst to national development. This is true if we consider the pride of place which the legislature enjoys among the organs of government, especially in democratic countries. It is the central organ as it makes laws which are interpreted and executed by other organs of government. This law making function constitutes the expression of the sovereignty of the state.

1.1      The Meaning of the Legislature

The legislature may simply be defined as a body of persons or institution of the state vested with the law making powers/functions of the state. According to Arvind Kumar, “the legislature has been described as the nations committee of grievances, and its congress of opinions.”[1] The learned writer also quoted Leacock definition which stated that:

By legislature, we mean a body of elected representatives of the people, whose main function is to deliberate, discuss and make laws.

The legislature has also been defined as “an assemblage of the representatives of the people elected under a legal framework to make laws for the good health of the society.”[2] Okosi Simbline defined it in the following word:

The institutional body responsible for making laws for a nation and one through which the collective will of the people or part of it is articulated, expressed and implemented.[3]

Harnessing from our knowledge of the foregoing, it would be safe to conclude reasonably that the legislature occupies a vital position in the life and success of any government particularly a democratic one.

1.2      Evolution of the Nigerian Legislature

An examination of the history of the Nigerian legislature will logically take us back to how our relationship with the United Kingdom influenced our legal system since they happen to be our colonial masters. Hence I will in this essay trace the history of the legislature from the period of evolution of parliament in England to the current republic.

It was in the thirteenth century that representative legislature began in England. As far back as the tenth century the British King constituted a council of wise men called the Witan to assist the crown. And during the Norman period, the body of wise men that assisted the King was enlarged, it was then called the Magnum Council or Great council. The council were not representatives of the people. It was not until 1265 that the representatives of the common people were invited to vote on tax proposal. This act serve as a precursor of a model legislature.

During the reign of Edward III the Magnum council became known as the parliament. The common people (burgesses) and knights sat in one house which later became the House of Commons. The barons and the clergy sat in a separate house which became the House of Lords. By this the British Parliament became bicameral[4]. The parliament grew and assumed powers after the English Civil war which were exclusive, a situation that led Blackstone to boast that the power of the parliament is “absolute despotic power and without control.”[5]

The history of the legislature in Nigeria can be said to have started after the annexation of Lagos in 1861 by the British colonialists. Before the attainment of independence on October 1, 1960 some form of parliamentary practice was already in place. The colonialists introduced modern legislative process which features elected representatives. The legislative council was merely an advisory body.

According to records, elective representation was first introduced into city or town councils. In May 1919, the colonialists granted elective representation for the Lagos Town Council. This led to the first recorded election in Nigeria on March 29, 1920 into the Lagos Town Council. In that election, the following natives were elected: Mr. A. Folarin, Dr. A. Savage and Mr. G.D. Agbebi.[6]

Owing to the nature of the council, the Lagos wing of the National Congress for British West Africa (NCBWA), a sub-regional body of African intellectuals sent a delegation in 1920 to London to demand for a Legislative Council for each of the British colonies in West Africa, including one half of members who would be elected Africans and the other half nominated. Although the British rejected the demands of the congress tagging them as “self-elected and self-appointed congregation of educated African gentlemen,” the move led to a reform of the legislative council in the colonies which further gave birth to the 1922 constitution of Nigeria, usually referred to as the Clifford Constitution.[7]

With the introduction of the Clifford Constitution the legislative council created was composed partially in elected members as well as unelected ex-officio members who were made of 27 colonial officers, 15 unofficial members nominated by colonial officers and the four elected members were Africans. The legislative council consisted of 46 members wherein the elected members were the minority. The council played more of an “advisory” than “legislative” role. The council could actually legislate on few things but were subordinate to the Executive council.[8]

The Richard Constitution expanded the ratio of the members and the legislative authority of the Council to legislate for the whole country.

The 1946 constitution also established regional councils but were without legislative powers. They merely reviewed any proposed legislation by the central council in Lagos, and also played advisory role for the regional Governor.

As the agitation by Nigerian nationalist for self rule and political independence intensified, the John Macpherson Constitution of 1951 came into being. It was this constitution that introduced a House of Representatives to legislate for the whole of Nigeria.[9] This was followed by the Lyttleton Constitution of 1954 which provided for two lists of legislative powers (Exclusive and Concurrent legislative lists), exercisable by the Federal and regional government. The 1957 London Conference which ushered in independence in 1960 saw to the dissolution of the Federal House of Representatives in 1959 proposing a bicameral legislature.

Following Nigeria’s independence, the 1960 independence constitution established a bicameral legislature at the centre- the senate and the House of Representatives. Nigeria later attained a Republican status in 1963. The first Republic Parliament survived for only 3 years and was disbanded by the first military coup in 1966. The Federal legislature did not return until the Second Republic in 1979[10]. Thus, the history of the Nigeria’s legislature is riddled with disruption, re-establishments and reforms. The legislature of the Second Republic lasted for about 5 years after which the military intervened. And the legislature of the Third Republic lasted only a few months before it was brought to an abrupt end by the military government of General Sanni Abacha.

Now under the fourth Republic, the legislature has endured uninterrupted legislative activities from 1999 till date. The 1999 constitution retains the bicameral legislature at the centre[11] which was contained in the 1960 constitution, but unlike the British style parliamentary government, under the 1979 constitution and the current 1999 constitution Nigeria embraced the American type congress or National Assembly. The National Assembly is currently made up of 469 legislators who are all elected, with 109 as senators, the remainder of 360 members are of the House of Representatives.

1.3      The Roles of the Legislature

The role performed by the legislature in a democracy and the extent to which the role is performed vary with the system of government in place; as well as differ from one country to another. However there is a general role performed by legislatures the world over. According to Fish and Kroenig, the study of modern government and politics involving contemporary nation-states is impossible without an appreciation of the role of the Legislature.[12]

Fashagba opined that the roles often ascribed to the legislature in modern democracies include representation, law-making and oversight roles.[13]

According to Idedioha:

In simple terms, the legislature performs three basic roles, namely: lawmaking, representation and oversight. So, in the House of Representatives, we make laws, we carry out representative functions on behalf of the people… and we oversight the executive arm of government… to ensure that government is held accountable to the people from where it derives its sovereignty.[14]

I will now consider briefly these three basic roles and how the legislature has fared in performing such roles under the current democratic dispensation.

        Lawmaking Role: section 4 of the Constitution vest on the legislature the legislative powers of the Federation. Under the above section 4, the legislature is empowered to make laws for the peace, order and good government of the federation. The legislative powers are divided into the Exclusive Legislative list, concurrent legislative list and Residual Legislative List. The National Assembly is empowered to legislate no matters listed in the exclusive list to the exclusion of the House of Assembly of States. It shared with the States’ House of Assembly power to legislate no matters itemized on the concurrent Legislative list.[15]

        Under the lawmaking role, the legislature is saddled with the power of appropriation.[16] Much of the influence the legislature enjoys is derived essentially from its powers of appropriation.[17] If this power is effectively deployed, it will by no little measure influence National development.

Representation Role: Effective legislature connect people to their government by giving them a place where their needs can be properly articulated. In modern democracy (representative democracy) a small number of percentage of the people are elected by the citizenry to represent their interest. The legislature in discharging its lawmaking and over-sight function, representation should be its primary consideration. Odinga commenting on this role of the legislation observed thus:

If the constitution is the embodiment of the aspirations, ideals and collective will of the people, the parliament is the collective defender and watchdog of the aspiration, ideals and collective will of the people. If the constitution is the social contact between the people and their government, the parliament is the advocate for the people and the arbiter of the national interest… the parliament is the repository and protector of the oracles of the political covenant and social contract between the people and their government.[18]

Oversight Role: The legislature is constitutionally mandated as the institution through which government are held accountable. This it does by acting as watch-dog over the actions and policies of the other organs of government like the executive. Professor Itse Sagay, SAN at a public lecture he delivered to mark the 47th birthday of Michael Opeyemi Bamidele on the 27th of July, 2010, the learned senior Advocate relying on John Stuart Mill, submitted that the legislature has duty to watch and control the government (executive), to compel a full exposition and justification of all of them which anyone considers unquestionable. He further submitted that if this duty is effectively discharged, the legislature’s critical function would produce an attitude of responsibility and restraint in the executive. And that for the legislature to play the role effectively, its own hands must be clean and its house put in order.[19]

        The legislature’s oversight role or powers are contained in section 82-89 with regard to the National Assembly, and section 120-128 with regard to the State House of Assembly. Under the said sections, the legislature shall have power to direct or cause to be directed investigation into:

a.           Any matter or thing with respect to which it has power to make laws,

b.           The conduct of affairs of any person, any 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 and

ii.          Disbursing or administering moneys appropriate or to be appropriated by the National Assembly.

The power conferred on the legislature are exercisable only for the purpose of enabling it to 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.

        The constitutional power to participate in budgetary appropriation gives the legislature the needed influence to shape governance for national development.

1.4      Power of the Legislature under the 1999 Constitution

The legislature is the foremost arm of government in a constitutional democracy. It is saddled with the responsibility of lawmaking within the ambit of the constitutional provisions of the country. Thus, the legislature is a vital institution charged with the basic role of enacting, repealing, revising and reviewing existing laws for the development and well being of Nigeria and Nigerians.[20]

Section 4 of the 1999 constitution of the Federal Republic of Nigeria makes clear provisions for the exercise of legislative powers by both the National Assembly and the States Houses of Assembly which power must be exercised for the purpose of achieving peace, order and good government of the Federation. This power to make legislations is exclusive in the sense that interference from other arms of government is not expected.[21] The philosophy behind it is separation of powers.

According to John Locke: it may be too great a temptation to human facility, apt to grasp 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 made, and suit the law, both in its making and execution, to their own private advantage.”[22] The importance of the doctrine of separation of powers was appropriately emphasized by Professor Ben Nwabueze in his work, where the learned author puts it succinctly thus:

Concentration of government powers in the hands of one individual is the very definition of dictatorship, and absolute power is by its very nature arbitrary, capricious and despotic. The executive function of government the maintenance of peace, order, the security of the state, the provision of social welfare, etc. has an inherent tendency towards arbitrariness. Its arbitrariness is greatly accentuated and legitimized where the function of law-making is also reposed in the same hands… Government in such a situation is not conducted according to predetermined rules; it is a government not of laws but of will, a government according to the whims and caprices of the ruler. Limited government demands therefore that the organization of government should be based on some concept of structure, whereby the functions of law-making, execution and adjudication are vested in separate agencies, operating with separate personnel and procedure.[23]

        Section 4 (1) and (7) specifically confers on the legislature the powers to make laws for the peace, order and good government of the federation. It is important to note that the law-making power is not absolute as what constitute peace, order and government is a matter subject to judicial interpretation.[24] And the powers of the National Assembly to make laws is limited to matter contained in the legislative list it is empowered to so do. This also applies to the State Houses of Assembly. Accordingly the National Assembly have exclusive power to legislate on matters or the 68 items listed on the Exclusive Legislative list contained in Part I of the Second Schedule of the 1999 Constitution. Under S. 4 (4) it is also empowered to legislate on items contained in the concurrent Legislative list set out in Part II of the Second schedule to the constitution.[25]

        The National Assembly has no power to legislate on matters not contained in the constitution (matters contained in the Residual list). Such matters are within the exclusive reserve of the State Houses of Assembly.[26]The National Assembly however has power to legislate on some specific subject matter not contained in the legislative lists contained in the second schedule. The subject matters are however provided for in the constitution. Examples include creation of new states and local government areas.[27]

        The question whether the National Assembly could legislate outside the matters so specified as being without its legislative competence was answered by the Supreme Court of Nigeria in A.G. Abia State V. A.G. Federation & 35 Ors[28] concerning the defective Electoral Act of 2001. It was held that the powers of the National Assembly to make laws were limited to those specified by the constitution. Accordingly it was further held that the powers over local governments are conferred on State under S.7 of the Constitution. Therefore the National Assembly could not pass any law to extend the tenure of elected local government officials. That was within the exclusive competence of the States Houses of Assembly.

        Also in the case of INEC & Anor V. Balarabe Musa & 4 Ors[29] the court declared that the National Assembly which the constitution vest power cannot go outside or beyond the constitution. Where such situation arises, the courts will pronounce the Act unconstitutional, null and void. Conversely in the case of A.G. Ondo State V A.G. Federation[30] where the power of the National Assembly to enact a law aimed at abolishing all corrupt practices and abuse of power applicable to every part of Nigeria pursuant to S. 15 (5).[31] The court in interpreting the word “state” contained in that section to mean the Federal Republic of Nigeria, held that the National Assembly has power to legislate against corruption and abuse of office.

        Apart from the powers of lawmaking, the legislature is empowered to investigate the affairs of the Executive.[32] The legislature has the constitutional power to conduct investigation into any agency of government with a view to exposing corruption and correcting any lapses in the conduct of public policy.[33]

        In exercising its investigative powers the legislature can summon any person in Nigeria to give evidence at any place or produce any document or other thing in his possession or under his control, and examine him as a witness, subject to all just exceptions.[34] Any person who fails to appear aft


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