Legislative power: Understanding the checks and balances

By Abubakar Jimoh

The recent attempt by the Upper Chamber of the federal legislature to hast passage of the proposed amendment to the law setting up the Code of Conduct Bureau and the Code of Conduct Tribunal, with a view to whittling down the agencies’ powers had triggered discussions on need for persistent checks and balances over the constitutional power of the legislature.

It is noteworthy to state that the legislature plays an important role in the life of a nation. It thus performs such fundamental functions as adoption of new laws, amendment of the existing laws, constituency representation and oversight of the executive’s activities to ensure appropriate accountability to the people. Indeed, achieving good governance requires existence of an active, strong and efficient legislature.

While the faith of a nation’s democracy dependent largely on the legislative process involving laws that affects the electorate and citizen at large, in 2012, a report by Journal of Law, Policy and Globalisation observed that good governance of any country dependent solely on the kind of laws that are made by the legislatives. According to the report, the problem of democracy in Africa centres on legislative governance. “Most laws made by the legislatives are self-centred on them and seem to favour them not minding whether those laws have negative effects on the public.”

This to a large extent raises a critical question on whether the citizens have fair representation in the legislature and if they do, how accountable and transparent are legislators in the legislative issues. Also, the legislature is accountable to the people and the legislation has different power which is vested upon it by the constitution. To this length, another question emerges as what would be the extent and context of legislative accountability with reference to the power conferred upon it by the constitution?

The principle of checks and balances which guarantees that no part of the government becomes too powerful is well established in 1999 Constitution of the Federal Republic of Nigeria. For example, Section 4 (1-3) empowers the legislative branch to make laws when it states: “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. (2) 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. (3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States.”

Giving limitation of the legislative power, Section 4(8) states: “Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law. (9) Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect.”

While on the executive power, section 5 (1)(a-b) adds: “Subject to the provisions of this Constitution, the executive powers of the Federation: (a) shall be vested in the President and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and (b) 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.”

Similarly, as representatives of the people not only do Nigerian legislators derive their mandate directly from the electorate, but also own the electorate proper accountability of their conducts in the legislature. Although the legislature has the power to make laws within its legislative competence, the power is strictly limited either by relevant provisions of the constitution.

Stipulating on the limitation upon the exercise of legislative power, American Law Register published by the University of Pennsylvania provides explicit explanations on the extent to which the legislature could exercise its constitution power when it noted: “… the legislature is not itself a sovereign power, that sovereignty resides in the people; that all power of legislation by sovereign people to their delegation in the legislature are subject to limitation springing from the nature of free government: some of which may be expressed in written or bill of rights, but many of which must rest for support only on fundamental principle of social compact; and that this is duty of judiciary to discover and declare, when the legislature is forgetful of its responsibilities, and through passion or partisanship enacts laws in disregards the right of the citizens and the good of the state.”

Another report by European Commission for Democracy has noted that legislatures are normally allowed to propose constitutional amendments, but with much stricter limitations than for ordinary legislation.

Lamenting the culture of selfish activities of the legislature in legislative process, Hussain Obaro, a Public Affairs Analyst wrote: “Rather than going to the hallowed chambers to represent their pockets and enrich themselves, the incoming members of the National Assembly should selflessly serve their people through quality representation. The legislature is the backbone of democracy and good governance.”

He further stressed that the commitment and selflessness of lawmakers is crucial for Nigeria to achieve the desired change, urging high level independency and objectivity in the legislative process.

Effort to rebuild citizens’ trust in legislative process gave birth to the establishment of a Strategic Panel on Legislative Accountability by University of Denver in 2015. From the observations of the Panel, “No government by the people can flourish without faith in the governing process. …democratic system relies on a working connection between the public and their representatives to function. Key to the relationship between legislatures and the people is trust.”

The Panel gathered that “When citizens trust their legislature, they are more willing to provide it the authority, support, and resources to do its job effectively. Citizens who trust the government are also more likely to support programs intended to benefit the common good – beyond their own individual interests – and to accommodate diverse points of view. When constituents have faith in the process, they invest in legislators the power and confidence to pursue policies that benefit the state or nation as a whole, both in the near- and long-term, and to make decisions on public concerns without continually seeking popular approval.

It however, warns that “as citizen trust wanes, however, citizens withdraw their support, which in turn undermines the ability of legislatures to perform well. When citizens perceive poor performance by the legislature, their trust is further eroded, creating a self-perpetuating cycle.”

To a large extent, there exists some level of accountability between legislators and the electorate and the actions performed by them. These actions, in the analysis of Global Organization of Parliamentarians Against Corruption (GOPAC) are subject to the oversight of another individual or institution.

GOPAC identifies two stages of accountability—answerability, the obligation on answering questions based on decisions, and enforcement, the discretion to sanction institutions or individuals responsible for action. In this case answerability and sanctions without adequate enforcement significantly weaken accountability.

In a democracy, while exercising its power, the legislature must seeks to reduce uncertainties that come from it, limit arbitrariness and prevent or even remedy abuses, maintaining power within certain predetermined rules.

The Presidential Veto Power

Another important mechanism for checks and balances on legislative accountability is presidential veto power, which refers to power of the President to refuse to approve a bill or joint resolution and thus prevent its enactment into law is the veto. The president could withhold assent to the amendment if it does not satisfy the strict requirements of Section 9(3) of the 1999 Constitution.

The President’s veto decision comes under Section 58 (2-4) of the Constitution which provides thus: “(2) A bill may originate in either the Senate or the House of Representatives and shall not become law unless it has been passed and, except as otherwise provided by section 59 of this Constitution, assented to in accordance with the provisions of this section. (3) Where a bill has been passed by the House in which it originated, it shall be sent to the other House, and it shall be presented to the President for assent when it has been passed by that House and agreement has been reached between the two Houses on any amendment made on it. (4) Where a bill is presented to the President for assent, he shall within thirty days thereof signify that he assents or that he withholds assent”.

The most common way for the president to veto a bill is outright veto of the proposal and return to the legislature with a veto message attached, explaining why the president vetoed the proposal. Also, the president can veto a proposal called a pocket veto, where the president refuses to sign a bill and the Bill is not rejected outright, and legislature adjourns, or takes a break, from its law-making.

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