THE ROLE OF THE LEGISLATURE IN ENHANCING FINANCIAL AUTONOMY FOR STATE LEGISLATURE AND STATE JUDICIARY A PAPER DELIVERED BY RT HON. MUDASHIRU AJAYI OBASA, SPEAKER, LAGOS STATE HOUSE OF ASSEMBLY AT THE 2-DAY CONFERENCE ON THE IMPLEMENTATION OF AUTONOMY OF STATE LEGISLATURE AND STATE JUDICIARY HELD AT CONGRESS HALL, TRANSCORP HILTON HOTEL, ABUJA ON THURSDAY, MAY 16, 2019
Democracy is all about ensuring popular participation and control of the process of government. Since all the people cannot participate and individually control their government at the same time, they entrust these rights and duties to an elected few among them known as legislators.
The legislature is one of the basic structures of any political system. It is known by a variety of names in different countries. Some states identify their legislature as Congress, Parliament, Duma or Knesset. Others label it as Soviet, Diet, Assembly, etc.
The legislature is omnipresent in every system of government to perform legislative functions. The legislative process is an interesting chain of activities, which involves passing of motions into resolutions and bills into laws which depending on certain circumstances contribute in one way or the other to national development.
In every nation, the legislature, as the accredited representatives of the people, has the duty of promoting national development through its chain of activities. In Nigeria, legislature has the mandate and is under obligation to initiate debate and show concern on matters affecting the generality of people in the country. Expectedly such activities should be directed toward reversing declining economy, stabilizing the polity and integrating society with overall aim of enhancing national development.
Since power belongs to the people in a democratic system, those elected to exercise such authority should do so to the benefit of the people. The legislature, as the closest arm of government to the people, must be seen to be independent enough to exercise the powers bestowed on it by the constitution. Any attempt to abridge this constitutionally guaranteed right, therefore, must be seen as an aberration. It is, therefore, laudable that the government is making moves to correct this lapse in our democracy.
SEPARATION OF POWERS
Any system of Government based on the Rule of Law and Democracy must consist of three great arms: the Legislature, the Executive and the Judiciary. This division of labour is a condition precedent for the supremacy of the Rule of Law in any society. The doctrine of Separation of Powers advocates the independent exercise of these three governmental or constitutional functions, by different bodies of persons, without interference or control or domination, by one on the other or others.
This theory globally gained momentum following the work of Baron De Montesquieu who formally conceptualised it for the first time. On that occasion, he stated in his “the Spirit of the Laws” as follows:
“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”
Our grundnorm, which is the 1999 Constitution of the Federal Republic of Nigeria as amended in 2011, provides vivid roles for the three arms of government. These constitutional provisions are succinctly stated clearly to guide against any breach by any arm of Government in the discharge of its functions.
The principle of separation of powers, which Nigeria’s previous and present democratic arrangement is anchored on, suggests that governance of the State should not fall solely under one organ of the State which could be identified as the Executive, Legislature and Judiciary. The idea behind this is that if liberty and freedom were to be, the three branches of government (i.e. The Legislature, Executive and Judiciary) must be separated and entrusted in different people.
In recognition of the principle of separation of powers in Nigeria, matters pertaining to the operation of each branch of government are accorded treatment in the Constitution in a separate clause of part II of the Constitution dealing with powers of the Federal Government. For instance, Chapter V of the 1999 Constitution, as amended, deals with matters pertaining to the operations of the legislature, while chapters VI and VII are concerned with matters relating to the executive and the judicature respectively.
The entire concept of the separation of powers is to ensure that no one arm of government exercises power to the detriment of the society. That the constitution allocates distinct functions and powers among the Legislatures, Executive and Judiciary is a straightforward concept in principle. In practice, however, the scheme can produce conflicts, confusion, and discordance and a comparably messy jurisprudence.
Like the historian and moralist, Lord Acton said in his letter to Bishop Mandell Creighton in 1887: “Power tends to corrupt, and absolute power corrupts absolutely.”
This scenario best describes the power of the Executive, cutting across the 36 states of the federation. State Houses of Assembly are under the beck and call of state governors. Clearly, the independence of state Houses of Assembly in Nigeria has remained quite doubtful even as some state House of Assemblies continue to play the ostrich over their not being tied to the apron string of their state governors as it is widely believed.
The culprit in this matter is none other than the failure to spell out the power of the purse expressly in our Constitution regarding state Houses of Assembly as well as its counterpart, the Judiciary. Rather, the concentration has been much more on the ‘powers’.
Contrary to this practice, at the federal level, the National Assembly has for some time now, been able to exercise some level of check and balance on the executive. With this strong sense of autonomy, the National Assembly has continued to perform its oversight functions and assert its right to control the finances of the Federation as constitutionally required.
This has been the basis for the intense debate that has, not until recently, remained on the front burner of several national discourses in the last few years to have similar power at the National Assembly replicated at state level.
THE CONCEPT OF FINANCIAL AUTONOMY
Before now, the Legislature and the Judiciary at the Federal level had been largely independent of undue executive control. The Executive from their alpha positions have been depriving the legislatures the capacity to control the purse, carrying out effective oversight or generally holding the governors to account. It is the main reason state Houses of Assembly in some states are seen as mere rubber stamps to state governors, which does not augur well for the nation’s democracy.
Several examples have been cited by political watchers and one of such is the inability of state assemblies to question governors on the alleged misuse of the Paris Club Bailout Fund released to them by the federal government on three occasions with about ten states not able to pay workers’ salaries.
The seeming lack of financial independence for the Houses of Assembly and Judiciaries had been quite precarious for them, subjecting them to the whims and caprices of the Executive in some states, thereby limiting their capacity to carry out their functions in a more effective manner. At some points in the discharge of their functions, the prevailing situation had them trapped in compromising positions, unfortunately.
At the national level, the practice of financial autonomy among the three arms of government had enjoyed fair implementation. But at the state levels, the Legislature and Judiciary were firmly tied to the apron strings of the Governors who called the shots on crucial issues such as the emergence of the leadership and political comportment of their members. State legislatures were unable to exercise their constitutional powers of independent oversight of the activities of the Executive, especially their financial dealings. They could not investigate issues or sanction errant governors. The Judiciaries were largely crippled, and some governors even had the guts to lock up the courts.
However, the states waited patiently for the day the principle would be extended to them. While they endured, agitations for financial independence for the legislature and judiciary did not cease. The Judiciary Staff Union of Nigeria, (JUSUN), for instance, had been at the fore front of the campaign to realize financial autonomy for the Judiciary and, by extension, the Legislature.
The lack of financial independence largely resulted in the inability of the Legislatures and Judiciaries to curb the massive corruption for which many governors are standing trial and being jailed. Instead, elements in all arms of the state governments became partners in the corruption, and service delivery suffered in most states.
But the above has been recently addressed as henceforth, the statutory allocation to state legislatures and judiciary in Nigeria is to be a first line charge of the consolidated revenue of the federation. In other words, the allocation to these arms of government at the sub-national level would be paid to them directly instead of being routed through the executive arm.
The development is courtesy of the Fourth Alteration Bill signed into law recently by President Muhammadu Buhari. The Fourth Alteration Act grants financial autonomy to both the State Houses of Assembly and Judiciaries, which empowers them to receive their allocations straight from the Federation Account (FA).
Expectedly, the law restores and gives practical affirmation to the globally acclaimed and centuries entrenched principle of separation of powers, which is the hallmark of democratic governance. The 1999 Constitution of Nigeria duly recognizes the concept but its practice, especially among the federating units, has been quite problematic. Financial autonomy, which is a key element guiding the revered democratic principle, had lacked true implementation in the states where the legislative and judicial arms depended on the executive for their allocations.
The move is a step further to boost the country’s democratic development. This is not only going to enable state Legislatures have freedom to access their budgetary allocations directly without the current trend of depending on the good graces of the Executive in states, but also to create more channels for effective democratic practice, institutional and state building, an opinion leader had averred.
The granting of financial autonomy to the State Houses of Assembly would go a long way to deepen democracy and enhance good governance across the country.With this financial autonomy, which is a new milestone for our democracy, the State Houses of Assembly and Judiciaries are now challenged to wake up to their constitutional responsibilities. The concept of checks and balances, which has been more effective at the Federal level can now come into play at the lower levels. The people will be more effectively represented and good governance strengthened.
THE ROLE OF THE LEGISLATURES IN ENHANCING FINANCIAL AUTONOMY
Proper constitutional roles of the legislature in the promotion of democratic governance in Nigeria remain paramount in legislative discourse; as democratic culture cannot be sustained without qualitative legislation for good governance.
We are all aware that Nigeria practices constitutional democracy. This, in other words, means that all the three organs of government derive their powers from the constitution. The Legislative Powers of the Federation are to be found in section 4, chapter 5, and the legislative lists contained in the second schedule of the Nigeria 1999 constitution as amended.
The roles and powers of the legislature are contained in the Section 4(1). Section 4(2) of the constitution, in part, specifically says that “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”.
Similarly, Section 4(7) confers the same power on the State Houses of Assembly with regard to any matter in the prescribed column of the concurrent legislative list and any matter not listed in the constitution, i.e. the residual lists:
Section 4(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.
Meanwhile, Section 120 to 129 expressly highlight the Powers and Control over Public Funds vested in the state legislature. For instance, Section 120 subsections (3) and (4) state it clearly that the power of the purse is vested in the state’s legislature:
120. (3)No moneys shall be withdrawn from any public fund of the State, other than the Consolidated Revenue Fund of the State, unless the issue of those moneys has been authorised by a Law of the House of Assembly of the State.
(4) No moneys shall be withdrawn from the Consolidated Revenue Fund of the State or any other public fund of the State except in the manner prescribed by the House of Assembly.
Section 129 gives the Legislature the sole constitutional power to conduct investigations into any agency of government with a view to exposing corruption and correcting any lapses in the conduct of public policy. This is otherwise referred to as Oversight Function. Legislative oversight is defined as “the review, monitoring and supervision of government and public agencies, including the implementation of policy and legislation.” Thus, from the wording of the Constitution, the State Assembly has independent powers to inquire into the workings of the government because with or without the cooperation of the executive arm of government because of the prominence given to the oversight responsibility of the State Assembly.
This means that it has the general power to cause an investigation or enquiry into any of the 68 subject in part 1 of the second Schedule, i.e., the Executive Legislative List. In addition to this general power, it can investigate the conduct of any person, authority, ministry, or government department, charged or intended to be charged with the duty or responsibility for (i) executing or administering laws enacted by the National Assembly and (ii) disbursing or administering moneys appropriated or to be appropriated by the National Assembly.
The first part of this power of investigation, the general part, involving an investigation into any of the 68 subjects in the Exclusive List is unqualified. However, with regard to the second part in which the investigation is targeted at the conduct of public officers and institutions, such an officer or institution must be one (i) charged with or intended to be charged with the duty of executing or administering laws enacted by the National Assembly and (ii) in the process must have or will disburse moneys appropriated or to be appropriated by the National Assembly. In other words, with regard to the investigation of public officers and institutions, the critical factor, triggering the exercise of legislative investigative powers is disbursement of funds, appropriated or to be appropriated by the National Assembly.
The import of the foregoing is that the constitutional mandate of the legislature is primarily to ensure, in any democratic setting, quality economic growth, poverty reduction, high level of employment, first grade infrastructure and general improvement in quality of lifestyle of the citizens through its vested powers. In other words, when we talk of the role of the legislature in enhancing financial autonomy, all the powers given to it can be utilised in ensuring that the Executive comply with the constitutional provisions towards the full implementation of the the financial autonomy.
To enhance financial autonomy for the state Houses of Assembly and Judiciary for instance, the legislature, having been saddled with the power of making law, is expected to come up with an enabling law, like financial management law that will state how to go about the state financial autonomy without fear or favour. For instance in Lagos State, we have Assembly Service Commission and Lagos State Judiciary Self Accounting Law that ensure the independence of the Legislature to a large extent.
Meanwhile, it has been observed that despite the lofty and painstaking laws usually made in Nigeria, little or no tangible outcomes have been achieved as they always tend to fall by the wayside. This is because the critical elements in both the internal and external environments and the implementation process account for the gap between goals and achievements. Nigeria has never lacked in planning, but the problem has always been achieving results.
It is an established fact that it is difficult to create a conceptual distinction between law making and law implementation. This is not far from the fact that law making basically takes place throughout its entire drafting process. It has been observed that law implementation is a very tedious process that requires a careful and critical analysis before it is embarked upon. Therefore, a critical evaluation of all the elements of impending law should be studied for proper implementation.
It must be on the record too that with all the powers confered on the legislature, it can use every means possible to make the Executive comply with the implementation of this financial autonomy. For instance, the power to make law, which is addressed by the Section 4 (7) (a), (b) and (c), dictates what the policy of the Executive is. In a situation where the executive fails to make the autonomy work, the legislature can withold its powers in supporting the Executive, all to ascertain that its agitation regarding financial autonomy is achieved.
It worthy of note to state here that the Judiciary in most cases do not help in decision making as far as matters of adjudication are concerned. Most of their pronouncements in some cases have not helped the legislature to establish its authority. There have been cases of the Judiciary creating conundrum through their collusion with the Executive by granting court injunctions that flouted the legislature’s authority. Evidence of this is seen in Kogi and Kano States recently. Same thing applies to situations where the Speakers of state Houses of Assembly have been removed illegally by the Executive through the cooperation of the Judiciary. Such does not give enough room for the Legislature to be independent in carrying out their functions effectively.
At the same time, state Houses of Assembly should come together and be one in their actions to make the implementation of financial autonomy a success. I remember that during the 3rd alteration in the 7th Assembly, state assemblies themselves voted against legislative autonomy. That alone tells you the naivety of that arm of government to sever the umbilical cord that has ensured that it is but the apron string of the executive.
Legislators must shun ethnic prejudice, intolerance, and struggle for the democratic work ability in their representative capacity. They owe Nigerians the fundamental duty to insist on good governance through qualitative legislation that can lead to socio-economic progress and prosperity of the country.
In the long term, the most important function of the legislature is the enactment of enlightened laws for the benefit of the populace and the general function of criticism, and scrutiny of executive policies and decisions. The openness of parliamentary proceedings, the transparency of all its processes, the availability of its records and debates to researchers and members of the public, all help to establish a healthy culture of democratic governance.
The greatest authority which a legislature wields in a democratic society is not its legal powers as contained in the Constitution, but its moral authority, as the conscience of the nation and protector of the sovereignty of the people. Thus members of the legislature must be men and women of high moral authority and integrity.
While commending both the National Assembly and the President for the enactment of the Fourth Alteration Act, it is worthy of note that this move is a very healthy development in the nation’s politics and governance. Insulated from their former attitude of subservience to a strong Executive, the two weaker arms, as it were, would now be incredibly strengthened. The overall impact would be the emergence of much stronger institutions of government, greater mutual respect for one another among the three arms of government, and the deepening of the nation’s democratic culture.
However, with the law come huge responsibilities for the Houses of Assembly and the Courts. Being in a self-accounting mode now, they are to be held fully accountable for their actions. In fact,they are to be accountable to the people with their activities, more transparent and not shrouded in secrecy. As they can now draw their funds directly to carry out their statutory functions, there should be no excuse for less than desirable performance.
The two arms of government should also note that there are extant rules, regulations and laws governing their operations that must be observed. Care should be taken in such issues as tenders, contracts, procurement, etc, which deserve transparency. Federal anti-corruption agencies as the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and other related offences Commission (ICPC)would now focus more attention on them on account of their financial independence.
As the nation glows in the euphoria of the historic moment, which is perceived to significantly enrich the nation’s governance experience and set a standard for other African countries, may I use this avenue to implore the appropriate authorities to set in motion the machinery for the immediate implementation of the financial independence granted the legislature and judiciary in the 36 states of the Nigerian federation.
At the same time, one of the challenges of our current democratic experiment is that the executive arm of government, whether at federal or state level, wields so much power. Granting financial autonomy to the legislature and the judiciary will, to a large extent, address this problem. But, devolution of powers from the central government to the federating units, which the proponents of restructuring are calling for, will largely address this problem better. I believe that the principle of separation of powers, which is vital to the success of any democratic system of government, should be allowed to prevail.
The executive arm of the government should never work to the detriment of any other arm. In fact, the three arms of government should work together to the benefit of those that elected them into office. The legislature and the judiciary are, indeed, indispensable to the sustenance of any democratic government.
Largely, having identified the constitutional provisions that support the financial autonomy of the legislature and judiciary, the concern, however, is how willing and strong-minded both the Legislature and Judiciary are to make the implementation work. Well, now that they are autonomous, I hope that the various arms of government pursuant to sections 4, 5 and 6 of the 1999 Constitution would maximise their full powers to the utmost benefit of the Nigerian people.