THE SCOPES OF LEGISLATIVE AND EXECUTIVE POWERS CUM ITS LIMITATIONS IN RESPECT OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 AS AMENDED.BYAGBEDE PRECIOUS OLADOYIN.

ABSTRACT

Power is defined as the ability and capacity of an individual or group of persons to influence the actions and decisions of others through an acquired means of sanction. Dunamis is the greek philosophical concept for power. Power is the possibility to influence others. Gaining prestige, honor & reputation is one of the central motives for gaining power in human nature. A content analysis of the writings of great social and political theorists from Plato and Aristotle through Machiavelli and Hobbes to Pareto and weber, would no doubt reveal power as the central concept around which attempts to explain politics have revolved but then, power is not something that only exist at a national or international level. Power exist wherever people are involved in relationships. In other words, power exists everywhere.

INTRODUCTION

Power is the central issue in government and politics. Power is the ability to get other individuals to do what perhaps, ordinarily; they would not have done. Kousoulas puts it as the capacity to make other human beings do what they would not ordinarily have dine of their own accord. In a similar vein, Thomas Hobbes defined power as the means to secure some future apparent good. In other words, power is seen as wealth. Max weber defined power as the possibility of imposing one's will upon the behavior of other persons. On the other hand, Carl Frederick sees power as the capacity of an individual or group of individuals to modify the conduct of others in the manner which he desires. One can conclude that power is the ability of getting things done and imposing actions and decisions on people even when they do not want to do it. Naturally, man loves power because of the benefits it carries and one will go any length to acquire power such as political and traditional power as we can see in the present situation of Nigeria.

In the meantime, there are variations of power which are: Physical power, spiritual power, industrial power, economic power, military power, traditional power inter alia but the most important variant which stands as the core of other powers is political power which can only be exercised in the context of a state.

SCOPE OF POWER FROM THE PERSPECTIVE OF 1999 CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA AS AMENDED.

Generally, there are three organs of government in which powers & functions are distinct and different from others. In line with the doctrine of separation of powers, the Nigerian constitution divide powers of the Federal government among the three arms of government in section 4, 5 & 6 of the constitution of the Federal Republic of Nigeria, 1999.They include: Legislative powers, executive powers & judicial powers.

Further more, Federalism is a constitutional political system that creates separate executive, legislative & judicial branches of government at the National and Sub-National levels. Under the constitution of the Federal Republic of Nigeria, 1999, Federal legislative power is vested in the National Assembly while the executive power is vested in the President and the judiciary power is vested in the court.

Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 as amended assayed on legislative powers. Legislative power is exercised by a body known in Nigeria as the National Assembly at the Federal level or House of Assembly at the State level. The National Assembly consists of two Houses; namely The Senate and House of representative. House of representative is the lower chamber of Nigeria's bicameral National Assembly while House of Senate is the upper chamber. The term legislative powers can be defined as the law making powers of a legislative body, whose functions include the power to make, alter, amend & repeal laws. Legislation on the other hand, is the formulation of law by the appropriate organ of the state, in such a manner that the actual words used constitute the law. In essence, the legislature have the power to make laws and  also delegate & regulate powers to various department in the executive.

More appropriately, legislature can be defined as the collection of individuals who are elected as members of the formal parliamentary bodies prescribed by the National and State constitutions. The legislature is an assembly with the authority to make laws for a political entity such as a country or city. The legislature is often referred to as the Parliament in Britain, Congress in USA, National Assembly in Nigeria inter alia. One cannot but discuss extensively on legislative powers without delving into the history and origin of legislature. In the mean time, the origin and the development of the legislature in Nigeria can be traced back to 1861 during the administration of the colonial masters.

The legislature derives her power from the constitution. The constitution provides that the National Assembly shall have power to make laws for peace, order and good governance of the Federation or any part thereof with respect to any matter included in the Exclusive legislative list set out in part 1 of the second schedule of the 1999 Constitution as amended. These matters include: Bills of exchange & promissory notes, Maritime, Accounts of the government of the Federation, Trademarks inter alia. The Senate House of Assembly cannot legislate on any matter contained in the Exclusive legislative list, if it does, the law will be declared null and void and of no effect whatsoever. The constitution clearly reserves the Exclusive legislative list to the National Assembly.

The National Assembly is also empowered to legislate on matters contained in the concurrent legislative list set out in Section 4 (7a-c) of the CFRN, 1999 as amended or any matter with respect to the provisions of the constitution. The concurrent legislative list contains a list of thirty items stating the extent of Federal and State legislative powers. Generally, the State House of Assembly must not make any law that is inconsistent with any law that has been validly made by the National Assembly and if it does, that of the National Assembly shall prevail.

The constitution provides that the House of Assembly of a state have power to make laws for the peace, order & good governance of the state or any part thereof with respect to any matter outside the Exclusive legislative list and any matter included in the concurrent legislative list. Therefore, in the exercise of its lawmaking powers, the National Assembly is limited by the constitution to matters over which it is expressly or impliedly empowered to make laws and the procedure that has been laid down by the constitution. Furthermore, while the legislature cannot generally delegate any of its essential powers to anybody or persons as was noted by the Supreme Court in A.G Bendel State V. A.G Federation. It can however delegate regulatory powers to the executive or confer powers to make subsidiary legislation on a body or person.

At the same time, the functions of any particular legislature are dependent on the system of separation of powers adopted and the specific powers allocated by the constitution to the legislature. Under the 1999 constitution, there are about one hundred and fourteen functions of the legislature practiced in Nigeria of which is exercised by the two chambers. Some of the functions of both chambers of legislature include:

-Removal of executive officials.

-Law making.

-Power of impeachment.

-Ratification of treaties.

-Power to conduct investigation.

-Approval for the declaration of war.

-Power to create new state.

-Power over public funds.

-Approval of annual budgets.

-Training ground for future political leaders.

Despite all the powers granted to the legislature as stated above, the constitution expressly limits these powers. The first and most important limitation on the legislative power of the National Assembly could be found in Section 1(1) & (3) of the constitution which provides that the 1999 constitution shall be supreme and its provisions shall have binding forces on all authorities and persons throughout the Federal Republic Of Nigeria while Section 1(3) provides that if any other law is inconsistent with the provisions of this Constitutions, this Constitution shall prevail and that other law shall to the extent of its inconsistency be void. This section restates the supremacy of the constitution over any law made by the National Assembly or State Houses of Assembly or any person or authority whatsoever; in interpreting this section of the constitution, the Supreme court struck out certain provisions of the Electoral Act 2002 in the case of Musa V. INEC & Others because of the inconsistency of those Sections of the Electoral Act with Section 40 of the 1999 constitution of the Federal Republic of Nigeria.

Another limitation in the exercise of the legislative power is seen in Section 4(8) which provides that the exercise of legislative powers of the National Assembly or by 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 shall not enact laws that ousts or purports to oust the jurisdiction of a court of law or a judicial tribunal established by law. This implies that the legislature must not enact any law that directly or indirectly purports to oust the jurisdiction of a court or a tribunal established by law. In Adikwu V. Federal House of Representatives, the court noted that Section 4(8)provides for the control of the legislative powers by the courts. Therefore, the courts can declare a law passed by the legislature invalid if it in its opinion, conflicts with the constitution.

Also, the constitution restricts the powers of the House of Assembly. This implies that despite the functions carried out by the House of Assembly which include power to make laws on residual matter as specified in Section 4(7c) of the constitution, power to conduct investigation inter alia, their powers are restricted. Section 4(5)provides that if any law enacted by the House of Assembly of a State is inconsistent with any law validity made by the National Assembly, the law made by the National Assembly shall prevail and that other laws shall to the extent of the inconsistency be void. This is a restriction on the Legislative power of the House of Assembly of a state. The restriction is to the extent that even while exercising its legislative power on the items on concurrent legislative list, such power should be exercised with caution so that it should not be contrary to the National Assembly legislation and the constitution. Another important fact is that the Legislative power of the House of Assembly of a state is subject to judicial control or judicial review.That means that any law enacted by the House of Assembly is subject to the judicial control or review by the high courts when the constitutionality of the law is in question. While the constitution also restricts the House of Assembly of a state to make prospective laws; the House of Assembly of a state cannot make retrospective or retroactive criminal law. This has been extended few judicial authorities to civil laws. The effect of these cases is that both the National Assembly and House Of Assembly of the state have no power to make both retrospective criminal and civil laws.

In the meantime, the doctrine of covering the field is another limitation of the legislative power of State House of Assembly. Under this doctrine, whatever the National Assembly has legislated upon on the concurrent legislative list cannot be legislated upon again by the House of Assembly of a state.

In addition to, the constitutional allocation of authority to the president to modify an existing law as may be necessary to bring it into conformity with the provisions of this constitution limits the law making power of the legislature and the President's vast power of patronage affects the relevance of the legislature. Furthermore, the constitution provides for the recall of nonperforming legislators by the electorate. This is a check on the legislators to ensure that at all times, they exercise their powers for the benefit and welfare of those who elected them in office.

Section 5 of CFRN, 1999 as amended boarders on executive powers. Under the 1999 constitution, the powers of the executive were divided into two which are the executive powers of the Federation and the executive powers of the State. According to Black's law dictionary, Executive power is defined as the power to see that the laws are duly executed and enforced. The constitution makes the president the chief executive and commander in chief of the armed forces in Section 13. The constitution of 1998 vests all the executive powers of the president which can be exercised directly by him or his vice president or members of his cabinet.

Subject to the provision of 1999 constitution, the executive powers of the Federation shall be vested on the president. This implies that the full powers of the Federal Republic of Nigeria rest on the president and such powers shall be exercised by the president, subject to the laws made by the National Assembly. The constitution also states that the president may either use such powers himself or through the vice president or ministers of government. The power of the President extends to the execution and maintenance of the provisions of the Acts of the National Assembly and on items on which the National Assembly has power for the time being to make law. It also make provisions for the appointment of ministers subject to conformation by the Senate. Section147(3) provides that in appointing ministers, consideration should be given to Federal character of Nigeria. Section148(1) provides that the president may assign to the vice president or any minister, any of the executive duties of government.

However, it should be noted that the president performs other functions that are not necessarily executive. For example, bills at the National Assembly cannot become laws until they have been assented to by the president. This is provided in Section 58(3). The President has the power to modify laws as seen in Section 315 of the constitution. It says that the law passed by the president shall be as if such law were passed by the National Assembly. This particular power of the President has been confirmed in the case of A.G Abia & 35 Ors V. A.G Federation where the actions of the president in amending the Allocation of Revenue Act 1990 was considered valid and constitutional. The president also performs judicial functions by appointing justices of the Supreme court subject to recommendation by the National judicial council and confirmation by Senate. Section 292 of the constitution enables the president to remove judges subject to an address supported by two thirds of the Senate.

In the similar vein, the constitution set aside the powers of the executive state which will be vested on the Governor of the state. In essence, the full powers of a state in the Federal Republic of Nigeria rest in the Governor of such State and such powers shall be exercised by the Governor, subject to the laws made by the State House of Assembly .It also states that the Governor may either use such powers himself or through the Deputy Governor or the Commissioner or officers in the public service. The power of the Governor extends to the execution and maintenance of the constitution. In other words, the State House of Assembly makes law for the State e.g Landlord and Tenant law of Rivers State and are published by the State, laws of Ondo State inter alia but it should noted that Laws are different from Acts. The later is applied all over Nigeria while the law of the State applies within the territory of the State which makes Act vastly superior to a law.

Other powers of the Executive of the Federation and the State include:

-Policy formulation.

-Supervision.

-Initiation of bills.

-Maintenance of law and order.

-Budgeting.

-Declaration of war/State of emergency.

-Power of pardon.

 In the midst of these powers, lies the limitation of the Executive President & Governor. Section 3(a-c) of the CFRN, 1999 as amended ordered the State that while exercising it powers within its boundaries, it shall not do anything that will affect the powers of the Presidency or the assets of the Federal government or endanger the Federal Republic of Nigeria. Similarly, the Executive powers of the Federation is limited. Section 5(4a-b) & 5 explains the limitations of the Executive President. The President is the Commander in Chief of the armed forces, but only the National Assembly had the power to declare war. In other words, the President is not vested with the power to declare war. To engage the Federation in a war with another country, the President cannot do such by himself but must seek the approval of both the Senate and the Federal House of Representative who must jointly sit to give such an approval. Also, no soldier can be deployed to fight a war outside the shores of Nigeria without the approval of the Senate.nAlthough, the President can deploy soldiers outside Nigeria if the President is convinced that the security of Nigeria is threatened as in the case of soldiers fighting Boko Haram at the boarders of Nigeria. However, the President must get the consent of Senate within seven days of such combat and the Senate must approve or refuse within fourteen days.

In addition to, the President does not have the power to make and interpret laws. The main function of the Executive is implementation of laws. This and that the Executive  does not have the right to make and interpret laws. And attempt to do such will be declared null and void. Even though the Executive arm wishes to make law, they can only recommend and initiate bills.

The Executive President is limited to choose cabinet members or Supreme Court Justices. The President is responsible for nominating candidates such as Chief Justices, Ministers, Ambassadors, Principal officers. These nominations must be confirmed by the Senate.

The head of the Federation is limited in his activities as he can be removed from office by impeachment. The power of impeachment is vested in the hands if the Legislature and as a result, the President cannot execute any activities that will lead to the detriment of the Federation and go unpunished. Therefore, the President is always on the lookout in executing his duties so that he won't be impeach from office.

Conclusion

The Constitution of the Federal Republic of Nigeria, 1999 as amended has given the structure of how things should go and how powers and functions are to be shared among all organs of government. Section 4, 5 & 6 has given the power and scope of the Legislative, Executive and the Judiciary respectively and their limitations which has been discussed in the body of this work. However, sometimes the scopes and powers of these arms of government may overlap such as the Executive giving prerogative of mercy (pardon) to an offender which is solely the function of the judiciary, passing executive order into law which is a legislative function. The legislature can also monitor the implementation of the laws made by them which is the function of the Executives and they can also performe quasi judicial function by way of summoning any of the Executive member and interrogate them. All these are still a valid feature of democracy and federalism and they happen because there cannot be a water tight compartment of the doctrine of separation of governmental power and in this case, one arm must check the excessive power of the other to avoid a tyrannical government.

 

REFERENCES:

http://law.justia.com

Element of politics

Essential government

https://www.researchgate.net

https://djetlawyer.com

https://streetlawyers.com

https://lawgloballhub.com

https://www.nigeria-law.org

 

 

My name is Agbede Precious Doyin, a Law student from Adekunle Ajasin UNIVERSITY AKUNGBA NIGERIA. A constitutional activist , you can contact @ agbedeprecious03@gmail.com