By Abubakar Jimoh
Legislature as a law-making body of a political unit, usually Federal and State Government, has power to enact, amend, and repeal public policy. Just as the legislature has the mandate to control through legislation all economic, social and political activities of the nation, it also scrutinizes the policies of the executive and provides the framework for the judiciary to operate.
The evolution and application of the doctrine of separation of powers created a platform for the operations of the three governmental organs (legislature, executive and judiciary) in a democratic process. The legislature makes law which in the words of Salisu Abubakar Maikasuwa, Clerk to the National Assembly Abuja, is “the mirror, guide and regulator of society”. The remaining organs of government rely on legislative output to discharge their functions for without law, the executive would have nothing to implement, whilst the judiciary would lack an object of interpretation to ensure the realization of the rule of law.
The 1999 Constitution of Federal Republic of Nigeria outlines the powers of the legislative arm of government, which is divided into two houses: the Senate (Upper Chamber) and the House of Representatives (Lower Chamber). In line with this, every state within the country has a legislative branch (the State House of Assembly), which acts in a similar fashion to the federal legislative branch.
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 Section continued: “(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.
“(4) In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say: (a) any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and (b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution. (5) If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall, to the extent of the inconsistency, be void.
With respect to the State, the legislative power of the States House of Assembly is provided under section 6 and 7 of the Constitution as: “(6) The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State. (7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say: (a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution; (b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and (c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
In the analysis of Civil Society Legislative Advocacy Centre (CISLAC), the legislature in general has key functions such as: lawmaking, oversight, representation, financial control, confirmation of appointment, and constitution amendment.
Law making function
Through law making, the legislators have the responsibility to make laws for the orderly and good governance of the society. This fact was further explained by the Executive Director of CISLAC, Auwal Ibrahim Musa (Rafsanjani) in a paper titled Legislature-CSOs Interface in an Emerging Democracy, where he wrote: “Representing the public means more than articulating citizen’s preferences, it also evolves having a say in translating preferences into policy through enacting legislation. In most legislative bodies ours included, the workhorses of the portion of this legislative function are committees. The committee systems simultaneously provide grounds for expressing differences and environments that foster compromise and decision.”
Similarly, AGORA, a global knowledge platform on parliamentary explains that in most parliaments with permanent committees, proposed legislation is introduced formally on the floor of the house, and then referred to one or more committees with jurisdiction over the legislation.
Oversight function of the National legislature is provided under Section 88 of the 1999 Constitution (as amended in 2010), which empowers the legislature to carry out investigations within its competence to prevent and expose corruption, inefficiency or waste in the execution or administration of laws. The Section provides as follows: “(1) Subject to the provisions of this Constitution, each House of the National Assembly shall have power by resolution published in its journal or in the Official Gazette of the Government of the Federation to direct or cause to be directed an investigation into – (a) any matter or thing with respect to which it has power to make laws; and (b) the conduct of affairs of any person, authority, ministry, or government department charged, or intended to be charged, with the duty [of] or responsibility for executing or administering (i) laws enacted by the National Assembly; (ii) disbursing or administering moneys appropriated or to be appropriated by the National Assembly. (2) The powers conferred on the National Assembly under the provisions of this section are exercisable only for the purpose of enabling it to: (a) make laws with respect to any matter within its legislative competence and correct any defect in existing laws; and (b) 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.”
As related to the State House of Assembly, Section 128 provides: “(1) Subject to the provisions of this Constitution, a House of Assembly shall have power by resolution published in its journal or in the Office Gazette of the Government of the State to direct or cause to be directed an inquiry or investigation into: (a) any matter or thing with respect to which it has power to make laws; and; (b) the conduct of affairs of any person, 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 that House of Assembly, and (ii) disbursing or administering moneys appropriated or to be appropriated by such House. (2) The powers conferred on a House of Assembly under the provisions of this section are exercisable only for the purpose of enabling the House to – (a) make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and (b) expose corruption, inefficiency of waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.”
Senate majority leader, Senator Victor Ndoma-Egba in attempt to clarify the essence of oversight function of legislature, in a Paper titled Legislative Oversight and Public accountability, explains that legislative oversight refers to the power to review, monitor and supervise agencies, programmes, activities and policy implementation of the executive arm of government by the legislature.
He added: “Legislative oversight is a constitutional right of the legislature, which empowered it to expose corruption and waste of public funds in government, agencies and ministries. Oversight is a loosely defined term that covers a wide variety of obligations and responsibilities of a legislative nature and the extent of which is defined by each country’s constitution and municipal laws. Part of this power is also inherent in the nature of parliament or the legislature.”
In the analysis of Jeremy Borbon, oversight responsibilities are carried out in two broad ways: “the police patrol” method and the “fire alarm” method. The “police patrol” method implies a continuous watchfulness or constant supervision of the Ministries, Departments, and Agencies of Government and bureaucracy; the same way that the police constantly patrols the streets to provide security. This type of oversight is usually costly in terms of funds and capacity.
The “fire alarm” method on the other hand is conducted as a result of concerns by constituents; the public, or the media. It can also happen through whistle blowing. Unlike the police patrol method which is preventive and designed to pre-empt or prevent issues the “fire alarm” method is ex-post facto oversight as it deals with issues after they have caused a fire. It is usually cheaper in terms of funds and maybe costlier in terms of the damage that may have already occurred.
In order to ensure effective discharge of its oversight functions, there are no fewer than 84 committees in the House of Representatives while the Senate has at least 57 committees carrying on these investigations. Each committee in either House consists of many members with each Senator or Member of the House of Representatives belonging to several committees at the same time.
In support of the above, CISLAC argues that the Legislature organizes itself as a mirror to the executive with committees established to mirror and oversight corresponding executive agencies. The constitution allows each legislative house to decide the number of committees it would have as well as their compositions. Usually, each Committee consists of the Chair, appointed by the Presiding officer and a secretary nominated by the Clerk (who is staff of the Legislature) and other members. In addition to these committees, there are other standing Committees. These include: Appropriation Committee (responsible for leading the scrutinizing of the appropriation bills), Public Accounts Committee, Public Complaints Committee (to allow citizens to file in complaints on issues affecting them or their communities), Ethics and Privileges Committee (for regulating the conduct and ethical behavior of the members of the legislature including matters of discipline), Committee on Fund Management & Self-Accounting Law (this is mainly for the management of the funds of the Legislature), and Committee on Selection (mostly responsible for advising the presiding officer on the compositions of legislative committees).
Representation is an important function of the legislature. The legislature has the primary mandate to carry out representative functions on behalf of the people who in our case, are demarcated in 360 federal constituencies. The legislators have a duty to represent the interests of their individual constituencies. Apart from servicing the needs of constituencies, for legislators to be effective, they must listen to their constituencies, brief them about legislative and policy issues, aggregate the demands of these constituencies into legislative agenda and project these demands on the floor of the legislative chambers.
While explaining the representation function of legislature, CISLAC opines that as representatives of the people, legislators not only derive their mandate directly from the people but also have to render accountability to the people. According to CISLAC, this accountability has three dimensions: Information accountability—to what extent do elected representatives provide information to their constituencies?; Representational accountability—to what extent are actions and deliberations of legislators informed by the actual issues that their constituencies want addressed?; and Governance accountability—to what extent do legislators ensure that the executives over which they oversight utilize public resources to promote the welfare of the people and to generally develop the society?
Three theories of representation have been identified by SparkNotes on Congress. These are: trustee representation, sociological representation, and agency or instructed-delegate representation. According to the theory of trustee representation, the people choose a representative whose judgment and experience they trust. The representative votes for what he or she thinks is right, regardless of the opinions of the constituents. Because the constituents trust their representative’s judgment, they will not be angry every time they disagree with the representative. A constituent who views his or her representative as a trustee needs not pay close attention to political events. For key issues, the constituent likely monitors the representative’s votes, but for other matters, the constituent likely trusts the representative and does not monitor votes too closely.
In Sociological Representation, the people choose a representative whose ethnic, religious, racial, social, or educational background resembles their own. Because the views of people with similar backgrounds tend to be similar, the representative will act in ways that suit his or her constituents. Thus, constituents do not need to monitor their representatives too closely.
Also, in Agency or instructed-delegate representation, according to the theory, the people choose a representative to carry out their wishes in the Assembly. If the representative does not do what the constituents want, then the constituents “fire” the member by electing someone else in the next election. Those who view their representatives as agents tend to closely monitor their representatives because they must know what the representative does in order to keep him or her accountable.
In addition to these routine functions, state houses of assembly have power to create local governments in their state to the extent that the creation of the local governments is consistent with the procedure provided in the constitution. The National Assembly could also create state, again subject to the procedure and provisions made by the constitution.
It is the core of democracy that legislature controls the finance. That is, no money could be spent or raised by the executive without the previous consent and approval of the legislature. Also, no money can be withdrawn from the Consolidated Fund of the state without authorization of legislature. Annually, budget containing the estimated expenditure and income of the ensuing year is placed before it.
The legislatures must ensure effective control over public resources (legislating the budget). Section 80 lays the powers of the legislature with respect over budget. According to the Section, “(1) All revenues or other moneys raised or received by the Federation (not being revenues or other moneys payable under this Constitution or any Act of the National Assembly into any other public fund of the Federation established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund of the Federation. (2) No moneys shall be withdrawn from the Consolidated Revenue Fund of the Federation except to meet expenditure that is charged upon the fund by this Constitution or where the issue of those moneys has been authorised by an Appropriation Act, Supplementary Appropriation Act or an Act passed in pursuance of section 81 of this Constitution.
“(3) No moneys shall be withdrawn from any public fund of the Federation, other than the Consolidated Revenue Fund of the Federation, unless the issue of those moneys has been authorised by an Act of the National Assembly. (4) No moneys shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation, except in the manner prescribed by the National Assembly.”
In this regards, the National Assembly has to jointly pass the federal budget while State Houses of Assembly are to do so for their respective state governments. In addition, State Houses of Assembly also have to approve budgets of local governments in their respective states.
Confirmation of Appointment
Just as the National Assembly owns the responsibility to confirm certain appointments to be made by the federal executive, the State House of Assembly has the power to confirm the appointment of specific appointments to be made at State level. Such includes: Commissioners and SEIC (at State Level), Ministers, Members of INEC, Auditor General, etc. (at national level). These powers are provided under section 192 of the constitution. However, the House of Representatives has no responsibility for confirmation of appointments. It is only the Senate that does this at the federal level.
Amendment of the Constitution is another fundamental function of legislature. The amendment of the constitution of the country requires the participation of all the legislative houses in the country. Power and requirement by the National Assembly for constitutional amendment is laid down under Section 9(1) of the 1999 Constitution, which states: “The National Assembly may, subject to the provision of this section, alter any of the provisions of this Constitution. (2) An Act of the National Assembly for the alteration of this Constitution, not being an Act to which section 8 of this Constitution applies, shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States. (3) An Act of the National Assembly for the purpose of altering the provisions of this section, section 8 or Chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than four-fifths majority of all the members of each House, and also approved by resolution of the House of Assembly of not less than two-third of all States.
It is noteworthy that while the National Assembly has overall responsibility for driving the processes, no amendment can pass until is supported by at least 24 State Houses of Assembly voting and passing it with 2/3 majority.
Guides to Effective Participation in Legislative Process
Effective legislatures contribute to good governance by performing important functions that are necessary to sustain democracy in this complex and diverse country. Legislature must have the capacity to translate policies into legislative forms and marshal arguments to convince their colleagues and the executive about these. Upon these, they have to be in the field to ensure that the executive is doing what it should do, especially with respect to appropriation law. Not that they are law enforcement agents, the truth is that their oversight role is a step short of doing law enforcement job.
To effectively perform their job, legislators will rely heavily on input from many different sources. By so doing, they receive a great deal of technical information from their staff, state agency personnel and civil society groups. Yet, much of what they actually decide depends on the views, interests and preferences of the citizens who elect them. This is precisely how the legislative process was designed to work. It is based on a close, open and positive relationship between elected officials and the citizens whom they represent.
Legislatures must understand that understand that much of the information they need to be effective in the legislative process can be obtained from other concerned and active citizens, civil society and professional groups.
As recommended by Washington State Legislature, legislators can actively participate in the legislative process in a variety of ways. They must select the method that allows the fullest expression of your personal interest and commitment. For individual legislature participation to be most effective, a basic understanding of the whole legislative picture is essential. He or she must: be fully present at both internal and external training and retraining programmes like the proposed training for the incoming legislatures by CISLAC and others civil society groups; understand how a Bill becomes a law; learn how to read a Bill; read the legislative overview page; listen to or watch broadcasts of committee hearings to see how they are conducted;
Capacity building has been found to be a strong tool for effective legislation and should be seen as continuing process and not a one-off thing. There are many areas of engagement by civil society organizations to assist legislative houses improve in the key areas of responsiveness, efficiency and effectiveness as they work to discharge their mandates. Among the focal areas for training and retraining recommended by CISLAC for legislatures include: Legislative Procedure and Practice, Budget Analysis, Oversight, Law and development from human rights perspective, Gender mainstreaming, Constituency Relations, Media and Public Relation, ICT in Legislative Processes, Engaging with Civil Society Organizations, Legislative-executive dialogues.
Before addressing an issue, a legislator must do some homework to understand whole issue including who it affects, what others feel about it, how it will influence future trends, and any other information he or she is able to gather. A legislator must embrace through research. Thorough research allows legislator to present viewpoint with confidence and credibility.
Developing a good relation with other legislators would help a legislator to make impact in the legislative process. A proactive legislator must keep in mind that he or she can effectively work with others, regardless of the personal opinions. In spite of disagreement that may arise from issues, a legislator must learn to build a positive relationship in the long run.
To be more effective, a legislator must be well prepared for discussions, provide a written statement with all verbal presentations, concise and formal in letters and e-mail, and avoid arguing with other legislator when he or she disagrees. A proactive legislator must learn to appreciate colleagues’ opinion.
As part of criteria for good practice recommended by Inter-Parliamentary Union (IPU), legislators can maintain a publicly available register of NGOs and related other bodies, organised by subject interest as well as alphabetically; a similar register of experts; effective publicity through different media giving due notice of forthcoming parliamentary bills, enquiries, public hearings, etc.; targeted invitations to relevant organisations and experts, including representatives of marginalised groups as appropriate, to make submissions or give evidence; procedures for tabling submissions from individual citizens; a handbook and/or training sessions on how to make submissions or give evidence to parliamentary bodies; a public record available on line of all submissions made; public hearings arranged in local centres, with written summaries of oral evidence.
Relating with Civil Society Organisations (CSOs)
So far, civil society groups have vigorously pursued democratization and when this was finally achieved, it went ahead to provide the necessary building block for people’s participation in the democratic process; educating and creating awareness for the individual’s participation in the electoral process. Although Nigerians elected their representatives to the constituent assembly, the component of people legislative interface either through direct interactions or organized civil society must be sustained. It was for this perspective that organization like Civil Society Legislative Advocacy Centre (CISLAC) set to work.
There are many way in which legislature can effectively collaborate with civil society. Legislative Committee can make an open invitation for submissions to all interested parties, individuals as well as organisations, through the press and other media, including its website. There are various credible Civil Society Organisations representing specific issues or interests, which the legislature can use as the most appropriate vehicle for conveying public views into legislative process. They can send specific invitations to relevant civil society known to have an interest in the particular legislation or enquiry under consideration, inviting their submissions. This without doubt will allow inclusiveness in consultative procedures. Also Civil Society Liaison Office in the National Assembly and Civil Society Desk Officer in case of State House of Assembly can used to maintain a dialogue between the civil society and the legislature.
Liaising with Legislative Aides
Legislative aides are like gatekeepers to the legislators. To communicate effectively, it is important that legislators are knowledgeable about the staff that supports them. Legislative aides support legislators by performing tasks such as scheduling, monitoring legislation, and tracking issues specific to the legislator’s district.
Legislative aides act as liaisons between legislators and constituents, other policymakers, the media, civil society and other stakeholders. When contacting the legislator’s office, in most cases, electorate may not be able to speak directly with legislator. Instead they speak with the legislative aides. Legislators must treat legislative aides with the same professional courtesy they would accord the legislator.
Relating with the Constituents
Strengthening the linkages between a legislature and the people is a necessary step for promoting peace and stability in a democratic system. In the words of Nikhil Dutta et al, “[T]he legitimacy of a fragile democracy rests on the ability of legislators to give voice to the expectations and interests of their constituents; and the population must see these tangible democratic dividends for the political system to be sustainable.
“These linkages are a two-way phenomenon including both top-down and bottom-up communication: legislators represent the people`s interests, while simultaneously providing feedback and information to their constituents on the political processes.”
When citizens feel that their views are represented in government and their representative bear constituents` interests in mind, they are not only encouraged to participate in legislative process, but also accept the legislature to enact legislation and the executive to implement and enforce it.
On this note, legislators must be able to disseminate timely information about their actions to their constituents, educate them on political process, gather constituent feedback and act upon suggestions. This will enable the legislators to manage constituents’ expectations of the role, scope and constraints of legislative power, thereby ensuring public confidence and peaceful conduct of legislative assignments.
Citizens’ representation embodied in the legislature remains a main component and an indispensable principle of democratic governance. This is because the legislature is the primary mechanism of popular sovereignty that in the analysis of Oni Samuel, a lecturer at the Department of Political Science, Covenant University, provides for the representation in governance, of the diverse interests in a multicultural and subnational society.
A legislator must be available and accessible to the public. He or she must report back to the constituents on what is happening in Assembly. Although the constituents deviate in their expectations from the fundamental responsibilities of legislature, nevertheless, a good legislator must create a functional Constituency Office and maintain constant visit to his or her constituency to establish workable relationship with the constituents for constant consultation and as a feedback mechanism for proper representation. Through Constituency Office, members of the public can approach elected legislators and make constructive input in legislative process as it affect them. The services available at the constituency office must be available equally to all members of the public.
More importantly, proper education and orientation about the true responsibilities of the legislators should be given to the constituents, to avoid unnecessary and unrealistic demands and expectations that compromise legislative standards.