The Legislature
In the history of Nigeria, we have experimented with three forms of legislative power. These include the form of Parliamentary Supremacy under the British colonial masters, the form of the Parliament at Independence and in all constitutions since 1979, the form where legislative powers are vested in the National Assembly and the House of Assembly of the States. Section 4(1) of the 1999 constitution basically states 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.
Thus, the National Assembly has the power to make, alter, amend and repeal laws. It may however delegate rule making powers to departments in the executive branch. It should be taken note of that the legislature cannot generally delegate any of its essential powers to anybody or persons as was noted by the Supreme Court in AG Bendel State v AG Federation, it can however delegate regulatory Powers.
Constitutional Provisions relating to the Legislature
1. Composition, Election and Qualification
The National Assembly's Senate is composed of three senators from each state of the Federation. The House of Representatives is made up of 360 members representing different constituencies (Section 48 of the 1999 constitution). The Senate is headed by a President and a deputy president while the House of Assembly is headed by a Speaker and Deputy Speaker, who are to be elected by members of each House amongst themselves (Section 50). According to section 65, to become members of the Senate and House of Representatives, candidates must be 35 and 30 years of age respectively and must be Nigerians. Section 65(2) further states that such candidate must be a part of and sponsored by a political party and have at least, a Secondary School certificate or its equivalent. By virtue of section 77, election into the National Assembly is to be by direct election. Before taking their respective seats, all members of the different Houses must declare their assets and subscribe to the oath of allegiance under the 7th schedule to the Constitution as embedded in section 52.
State legislatures are unicameral. They cannot, however, be less than 24 or more than 40 members. The House of Assembly is headed by a Speaker and a deputy Speaker (section 93).
2. Disqualification of Members
The grounds for disqualification of membership are contained in section 66. These grounds range from lunacy to death sentence, bankruptcy, public service employment, inter alia. These same grounds apply to the State House of Assembly under section 107.
3. Mode of Exercise of Business
The President and the Speaker head the Senate and the House of Representatives respectively. When either is absent, their deputies head (section 53). According to section 54, the quorum for either House to reach a decision alone or at a joint sitting is one third of the total number of the members of each House. Section 55 states that the meetings are to be 'languaged' in English, Hausa, Yoruba and Ibo. sections 58 & 59 lay down certain general guidelines for the exercise of Federal legislative powers through bills. Section 60 gives each House of the National Assembly the power to regulate its own procedure devoid of Judicial review. Under section 67(2) also, the House may summon a minister before it to explain the conduct of his ministry.
Section 100 stipulates the process or guidelines for the exercise of State legislative powers through bills.
4. Tenure or Loss of Seat
The grounds for the loss of seat of a member of the National Assembly is grounded in section 68. These grounds range from membership in another legislative house, lunacy, bankruptcy, occupying an executive position, inter alia. Section 109 stipulates these same grounds for the State House of Assembly.
Powers of the Legislature
1. The Main powers of the National Assembly are contained under section 4(2-4) stated as follows:
(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.
Section 4(7) stipulates the powers of the State House of Assembly as follows:
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.
Take further note of the provisions of S. 4(5) discussed earlier.
2. Power over public funds
The National Assembly has the power to make laws in relation to taxation of incomes, profits and capital gains under item 59 of the exclusive legislative list and the authority to determine the spending of the public funds. In section 80 of the Constitution, all revenue or moneys raised or received by the federal government must be laid into a Consolidated revenue fund for the Federation except where it is for a specific purpose. Thus, moneys from the fund can only be used for expenditure charged upon it by the constitution or where the Appropriation or Supplementary Appropriation Act promulgated by the National Assembly had authorized such. Also, it can only be drawn if authorized under such Acts and in a manner prescribed by the National Assembly. To obtain such authorization, the president must lay before each house of the National Assembly, estimates of the revenue and expenditure of the Federation for the relevant financial year.
The power over public funds for the State legislature is contained in section 162. In subsection 6, the constitution states that each State shall maintain a special account to be called "State Joint Local Government Account" into which shall be paid all allocations to the Local Government Councils of the State from the Federation Account and from the Government of the State. Each State shall pay to Local Government Councils in its area of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the National Assembly.
3. Impeachment
This is the power of impeachment of the President or Vice President. This power is contained in section 143 as follows:
The President or Vice-President may be removed from office in accordance with the provisions of this section whenever a notice of any allegation in writing signed by not less than one-third of the members of the National Assembly is presented to the President of the Senate stating that the holder of the office of President or Vice-President is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified, the President of the Senate shall within seven days of the receipt of the notice cause a copy thereof to be served on the holder of the office and on each member of the National Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office to be served on each member of the National Assembly. Within fourteen days of the presentation of the notice to the President of the Senate (whether or not any statement was made by the holder of the office in reply to the allegation contained in the notice) each House of the National Assembly shall resolve by motion without any debate whether or not the allegation shall be investigated.
A motion of the National Assembly that the allegation be investigated shall not be declared as having been passed, unless it is supported by the votes of not less than two-thirds majority of all the members of each House of the National Assembly. Within seven days of the passing of a motion under the foregoing provisions, the Chief Justice of Nigeria shall at the request of the President of the Senate appoint a Panel of seven persons who in his opinion are of unquestionable integrity, not being members of any public service, legislative house or political party, to investigate the allegation as provide in this section. The holder of an office whose conduct is being investigated under this section shall have the right to defend himself in person and be represented before the Panel by legal practitioners of his own choice. A Panel appointed under this section shall have such powers and exercise its functions in accordance with such procedure as may be prescribed by the National Assembly; and within three months of its appointment report its findings to each House of the National Assembly. Where the Panel reports to each House of the National Assembly that the allegation has not been proved, no further proceedings shall be taken in respect of the matter.
Where the report of the Panel is that the allegation against the holder of the office has been proved, then within fourteen days of the receipt of the report at the House the National Assembly shall consider the report, and if by a resolution of each House of the National Assembly supported by not less than two-thirds majority of all its members, the report of the Panel is adopted, then the holder of the office shall stand removed from office as from the date of the adoption of the report.
No proceedings or determination of the Panel or of the National Assembly or any matter relating thereto shall be entertained or questioned in any court.
The Power of impeachment for the State legislature is embedded in section 188, to remove either the Governor or deputy governor on the same basis.
4. Power to Conduct Investigations
Section 88 of the 1999 constitution provides that each House has the power to cause an investigation into the matters which it has the power to make laws on and the conduct of any person or ministry charged with certain responsibilities. Seeing how this is a very potent power, the courts have often prevented the Legislature from utilizing this power to contravene certain rights. See Adikwu and others v National Assembly, Tony Momoh v Senate where the right to freedom of Speech and expression of the respective appellants were to be infringed upon. Section 128 gives power of investigation to the State Houses of Assembly.
5. Miscellaneous Powers
Under section 214, in relation to the Police force, the National Assembly has the power to determine by Law, the organization and administration of the force, and may make provisions for the establishment of different branches of the Force. Under section 217, the National Assembly has the power to make laws for the adequate equipment and maintenance of the Armed Forces for the attainment of its purpose. Under Section 218 also, the National Assembly may make laws regulating the powers of the President as the Commander in chief of the Armed Forces. Also, the President cannot declare war without the sanction of a resolution of both Houses of the National Assembly at a joint sitting. Finally, the National Assembly may make laws for the punishment of those involved in various offences relating to the formation and organization of political parties.
The House of Assembly of a State under sections 7 and 8 of the Constitution, has the authority and power to create additional local government areas and determine their structure, finance and functions.
6. Salaries and Remuneration
The National Assembly has the authority to determine the salaries of certain Federal and State public officials. It must however not exceed what has been determined by the Revenue Mobilization Allocation and fiscal commission and cannot be altered to their detriment after appointment (section 84).
7. Appointment and Removal
The National Assembly, especially the Senate, has authority in the appointment and removal of some public officers of federation. Thus, the appointment of members of various executive commissions and heads of the various levels of Federal Courts by the President must be confirmed by Senate. The removal of these same personnel can be done by the President, acting on an address supported by two-third majority of the Senate asking for such removal.
Limitations of Legislative Powers
First and foremost, See Section 1(1) of the Constitution which states that the provisions of the Constitution are binding on all authorities and persons in Nigeria. See section 1(3) which further states that if any other law is inconsistent with the provisions of this Constitution, the Constitution shall prevail, and that the other law shall, to the extent of the inconsistency, be void. Thus, the Legislature cannot act or conduct their work in a way contrary to the provisions of the Constitution. In AG Bendel State v AG Federation, the court declared null, the appropriation bill passed by the National Assembly in a manner contrary to the provisions of the Constitution.
Section 4(8) also states that the National Assembly or State House of Assembly is subject to the jurisdiction of the Courts and judicial tribunals established by Law, and shall not oust such jurisdiction under any law. The same section also provides that both levels cannot make retrospective criminal laws. This was supported by the court in the case of Adikwu v Federal House of Representatives.