NATIONAL ASSEMBLY EXCEEDING ITS POWERS
Is the National Assembly (NASS) almighty? The NASS apparently assumes it is Supreme. Its nouveau-supreme swagger manifests in its push to dominate the political space. The burgeoning legislative arrogance has manifested in actions and utterances. It is common to hear members of the NASS make statements like 'we represent the people and Sovereign will, cannot be vetoed by the signature of one citizen (the president)'.
A priori, that the NASS is not a supreme legislative body. It is wrong as has been portrayed in the media in recent times by some leaders of the Senate that in electing them the people ceded their Sovereignty to them. The NASS is legally and practically not more representative of the people than the president of Nigeria.
Unless one is informed, it is easy to run into the error of thinking that with their newly-found zeal to legislate on practically any subject, the NASS has power to do and undo.
Only recently it was a comedy of the absurd to watch some leaders of the Senate on TV saying that the Federal High Court ought to know that it could not make a certain order against them. It was an order of status quo in a matter before that Court. The issue here is not whether the Court had such power. The law is that a person affected by a wrongfully made order should apply to set it aside. The media statements were capable of sending the wrong signals that Court orders are open to be ignored!
The NASS is neither Supreme nor Sovereign. Its law-making powers are constitutionally limited. Unnecessary confusion has often been introduced into Nigeria's peculiar system of government by reliance on American and British systems of Government. This is wrong. Our system is neither American nor British. It may well be a hybrid of the two as there are influences of both two systems on Nigeria.
May be we are closer to the US because we both operate the presidential system and a written Constitution. Yet it is wrong as the NASS did on Constitution Amendment to read our Constitution as if it is the same with the US'. Both Constitutions differ in many respects. Importing American interpretation into Nigeria simply breeds confusion. The Supreme Court warned against this faux pas in ADESANYA V PRESIDENT (1981) 2 NCLR 358, where NNAMANI JSC said at page 395 that our Constitution 'is different from the American, Indian or any other Constitution for that matter and that in determining the meaning of its provisions it is to it (i.e. the Constitution) that we must turn'.
In England, Her Majesty's Parliament is supreme. It can legislate on any subject-matter. It has been famously stated that the only thing the Parliament could not do was to make a man woman and a woman man! Yet, the sentiment was responsively expressed that if the Parliament so desires it could indeed legislate to make a man woman and there would be no questioning it. A. V. Dicey stated that this is the basis of British constitutional law. Of course, there is no jurisdiction in Her Majesty's Courts to question the validity of an Act of Parliament. English Courts admitted as much in THE QUEEN V JORDAN (1967) CLR 483 and CHENEY V CONN (1968) 1 WLR 242.
In Nigeria the NASS is not supreme. Section 1 CFRN 1999 makes the Constitution supreme. The NASS is equally not Sovereign. The people are Sovereign. See Section 1(2)(a) CFRN 1999. All governments derive authority from the people, and sovereignty was never ceded to the NASS as the purported 'true representatives' of the people. With their fragmented sectional votes staggered in from across the country, the president's block national votes are even more important than that of the NASS members put together. The whole is greater than the sum of its parts.
Section 4 CFRN 1999 empowers the NASS to make laws for peace, order and good government of Nigeria on matters on the Exclusive Legislative List, except otherwise stated by the Constitution. It can also make laws to some extent on matters in the Concurrent List and on any other matter it is empowered. Thus the NASS cannot legislate as it deems fit. It cannot legislate on internal affairs of a political party. Can it for example make law providing that the National Executive Committee (NEC) of political parties shall be appointed by the president? The NASS cannot make law to provide for membership of the NEC of political parties.
By Item 56 in the Exclusive List, the NASS is empowered to make law to regulate political parties. But does this give it power to go to any extent? No. The power to legislate on a matter on the legislative list is still circumscribed by constitutional provisions. The NASS cannot make legislate on a matter which has been taken care of by the Constitution, especially when the statutory provision does not enhance constitutional provision but contradicts it. In England they only have a constitutional custom, an unwritten Constitution. In Nigeria, we have a written Constitution and constitutional provision cannot be defeated by statute.
Sections 221 to 229 CFRN 1999 are dedicated to political parties. The Constitution intends that a political party runs its internal structures. Section 222(c) recognizes the party Constitution. Section 223(1) places the constitution of party leadership on the party Constitution. The NASS cannot therefore make law to regulate the constitution of the NEC of a political party. It is a matter of internal organization reserved for the party constitution. Is it arguable that the NASS cannot make law that members of the National Working Committee of a political party be selected appointment? Finally, Section 228 gives certain powers to the NASS over political parties and regulating membership of NEC is not included.
On the issue of inauguration of the president, CFRN 1999 only vests the NASS with legislative powers. It is not an executive body. If the NASS wishes to take up more duties, they must align with its legislative role. The Constitution clearly leaves executive functions in the hands of the Executive. In addition, by Section 2 of the Oaths Act, presidential oath is administered by the Chief Justice of Nigeria (CJN). Presidential inauguration is therefore a matter to be handled by the Federal Civil Service in collaboration with the CJN. It is not on any legislative list. This is because the Constitution has already placed it in the hands of the Executive. Can the NASS pinpoint its legislative authority to make law on inauguration, not to mention being the Master of Ceremony?
Under our Constitution, legislative power is not at large. Power must be express or clearly incidental. The NASS is a limited legislative body. On party NEC and presidential inauguration, the NASS is trying to tamper with the powers of political parties and the Executive. It is sheer power-mongering for the NASS to seek to expand its powers. If passed into law, the two legislations will be subjected to Judicial Review to determine their substantive validity. The NASS is not omnipotent.
Ogham-Emeka is a Lagos-based legal practitioner