Relationship between the executive and the legislature

Constitutional provisions: relationship between the executive and the legislature

Presentation by hon. Jonathan Kish Adamu at the Savi DFID tot workshop on induction of new members at Katsina on the 4th of May 2011.

INTRODUCTION

Most people have often seen the relationship between the executive and the legislature as that of “master-servant” with the legislature being the servant. Others see it as a cat and mouse relationship. I leave it to your imagination to determine who the cat is and who the mouse is. The reality, at least constitutionally is far from what is seen or perceived and the extent to which the constitutional provisions that determine or set out the roles and function of each arm are implemented is left to the individual practitioners and varies from state to state.

What is true is that their relationship is defined in two ways major ways, viz,

  1. They complement each other
  2. They supervise or act as a check on one another.

This will be seen repeatedly as we discuss various constitutional provisions that deal with their various roles.

Section 1 (1) of the Constitution declares that

“ This constitution is supreme and its provisions shall have binding force on all persons throughout Nigeria”

Subsection (2) states that

“The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution”

What is obvious from this section therefore is that the constitution is the grund num i.e. the supreme law of the land and lays the basis for the corporate existence of Nigeria. It also establishes the democratic system of governance that we practice in Nigeria under the doctrine of “the rule of Law” as against arbitrariness or the rule of man. What this means therefore is that the constitution has set up a system of government for the people of Nigeria. And defines the various institutions of governance and the various roles each is expected to play.

Nigeria is often referred to as a Constitutional Democracy that practices the doctrine of separation of powers. It is however not an unfettered separation of powers but with checks and balances such that no separate arm of government is too powerful or a law unto itself. Part II of the Constitution deals with the powers of the Federal Republic of Nigeria and spells out what each arm of government is expected to do and how they complement each other.

The legislative powers of the Federation are vested under Section 4(1) in the National Assembly, which comprises both the Senate and House of Representatives. While that of the state under section 4(6) is vested in the House of Assembly of the State.

The Executive powers are vested in the President of Nigeria in the case of the Federation under Section 5(1) (a) while the executive powers of the state are vested in the Governor of that state under Section 5(2) (a). In the case of the President he may exercise those powers either directly by himself, or through the Vice President or the ministers or officers in the public service of the federation and in the case of the Governor by himself directly or through the Deputy Governor and Commissioners of that state or officers in the public service of that state.

Section 6 vests the judicial powers in the Courts established under the Constitution for the Federation and the States respectively and sets out the limits of their jurisdiction.

While this separation of power exists on paper, it is not always easy to achieve in practical terms, as there is often a lot of interference on the part of the executive in the functions of the legislature. This is due to a variety of reasons, which include,

  1. Ignorance on the extent of its powers by the legislature leading to the abdication of its powers.
  2. Financial inducement.
  3. The overbearing influence of the executive and its control over financial resources and the instruments of power or coercion.
  4. Political considerations.

POWERS OF THE EXCECUTIVE AND THE LEGISLATURE.

Section 4(1) of the Constitution provides that

“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”.

The legislative powers of the state containing similar provisions as above, vesting the power to make laws for a state in a State House of Assembly are contained in Section 4(6). The powers to make laws are for the peace, order and good government of the Federation or the state as the case may be. Thus the Legislature has the exclusive power to make law. The legislative powers are divided between the Federal Government and the State Government in the exclusive legislative list and the concurrent legislative list respectively in part I and II of the second Schedule to the Constitution. However this law making power is not absolute as it is subject to judicial review by the courts. Thus making for the doctrine of checks and balances as mentioned earlier and the legislature cannot therefore make any law ousting the jurisdiction of the courts.

On the other hand the constitution in Section 5(1) (a) provides that the Executive powers of the Federation

“… 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”.

Subsection (2)(a) makes similar provisions in the case of a state. Effectively what this means is that the President or the Governor as the case may has the sole power of running the affairs of the state without interference from any arm of government except as may be limited by the Constitution or any law. He has the duty of implementing or executing all laws that have been validly made for the Federation or the state. He initiates and carries out all government programmes. This power is exercised either by himself or though the Vice-President or Deputy Governor and ministers or Commissioners or any officer of the government.  Political appointees members of the civil service of the Federation or of a state are functionaries acting on behalf of the government.

The constitution has unwittingly given some law making power to the executive. Under Section 315(2)

“The appropriate authority may at any time by order make such modifications in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this constitution”.

Section 315((4) defines “appropriate authority” to mean the President or the Governor of a state as the case may be. President Obasanjo during his first term was able to use this section to make changes to a particular law, an action that generated controversy with allegations that he was encroaching on the powers of the national Assembly to make law.

However no law passed by the legislature becomes law unless it has been assented to by the Executive, except where the House exercises it power to override any veto by the executive.

In simple terms, the relationship between the Executive arm of Government and the Legislative arm can be described as complementary. Each serves to further the aims of democracy and answer the spirit of the Constitution.  What this all means is that none of the various arms of government can exist without the other.

CONTROL OVER PUBLIC EXPENDITURE AND OVERSIGHT

In order for the Executive arm of government to carry out its functions it must spend money. Furthermore in order to establish or change government policy it needs the instrument of the law to act. It is therefore in this area that the legislature comes in and the complementary role of the two arms of government is best seen. It is also here that oversight function of the legislature over the executive is also demonstrated. Therefore while the Executive has the power to spend it is the legislature that has the power to determine how this money is spent and gives it the authority to spend

The Constitution by virtue of Section 80 for the Federation and Section 120 for a State, requires that the government must keep the funds it receives in the Consolidated Revenue Fund and cannot withdraw or spend from it except as authorized by an Appropriation Act or law made by the Legislature. In order to carry out its programmes, the government must prepare and lay before the legislature estimates of the revenue and expenditure of the government for the next following financial year by way of an Appropriation Bill (see sections 81 and 121 of the Constitution).  Once the executive has done this, the document completely comes under the control of the legislature. While it has been argued that the legislature can reduce, add to or amend the proposals of the executive this has not always been easy to achieve, as the executive is interested in maintaining the sanctity of its proposals. A lot of horse trading or lobbying now takes place. This is usually during the period of budget defence by the various ministries, parastatals and agencies of the government. It is at this point that the legislature has the power to make its imprint felt in the budget.

Aside the budget, in order to make law or policy the government similarly must present its proposal by way of an executive bill to the legislature. The legislature then scrutinizes this bill and may engage in public hearings and seek the help of experts before passing that bill into law.  So the bill may completely take on a new life once it comes into the hands of the legislature. In fact, an executive bill may get thrown out during the second reading of that bill by the legislature, effectively signaling the end of that law. No President or governor wants that to happen and as such would work to convince the legislature of the necessity of passing that bill into law.

AUDIT OF PUBLIC ACCOUNTS

While the Executive spends and keeps record of public revenue and expenditure the Auditor-General for the state audits this annually and the report of the Auditor-General who is independent is laid before the House of Assembly every year. In practice the Pubic Accounts Committee of the house scrutinizes this report and it has power to Act on any thing contained in the report. See sections 85 (2) and 125 (2).

POWER OF INVESTIGATION

One way in which the Legislature exercises its oversight responsibilities over the executive is the power to investigate. Section 88 and 128 of the Constitution gives the National Assembly and the State Houses of Assembly as the case may be power to conduct investigation over the way the executive carries out its functions. Specifically the legislature can investigate,

  • any matter or thing with each it has power to make law
  • the conduct of any person, authority, ministry or government department charged with the duty or responsibility for administering any law and disbursing or administering moneys appropriated or to be appropriated by the legislature.

This power to investigate is for the purpose of,

  • making laws or correcting any defects in any law and
  • exposing corruption, inefficiency or waste in the execution of laws within its legislative competence and in the disbursement of funds appropriated by it.

In order to do this the legislative house concerned must have passed a resolution to that effect and the order contained in such resolution is published in “its Journal or in the Official Gazette.”  In order to exercise this function the legislative house can,

  • procure any kind of evidence weather written or oral and examine all persons as witnesses whose evidence may be material to the subject matter.
  • take such evidence on oath
  • summon any person in Nigeria to give evidence or produce any document in his possession
  • issue a warrant to compel the attendance of any that may have refused to honour its invitation to testify.

The combined effect of these provisions is to make the executive answerable to the legislature.

In its relationship with the Executive while the legislature has the power to sanction the executive, the executive does not exercise any such function over the legislature. This power to sanction the executive is the power to remove the President or Governor from office through the process of impeachment where after a process of investigation as outlined above for instance the holder of such office is found guilty of “gross misconduct” in the performance of the functions of his office. Again as in other cases the power of the legislature to investigate and to cause the removal of the President or the Governor is subject to the control of the judiciary who through the Chief Justice of the Federation or of a state is required to empanel a body made up of persons of unquestionable integrity to investigate any such allegation that may lead to impeachment. See Section 143 and 188.

Finally in the relationship between the two arms of government, the legislature reserves the power to confirm the nominees of the Executive to certain executive and judicial offices, such as the appointment of Ministers and Commissioners. See Sections 147 (2) and 192 (2) of the constitution. This is to ensure that only competent persons are appointed to such high offices. Nominees are usually put through a question and answer session by the legislature either in committee or in full house sitting as a committee.

CONCLUSION

While the executive arm of government has immense powers especially with its control public funds and is often willing to misuse or abuse to the detriment of the nation or the state or for selfish considerations, the legislature must realize that under the Constitution it has more power to reign in the executive, curb its excesses and ensure that the Fundamentals Objectives and the Directive Principles of State Policy as enshrined in Chapter II of the Constitution are achieved.

So tell me who is the cat and who is the mouse?