Separation of power and Legislative Autonomy are two basic concepts and features of democratic systems of government. The concepts are more associated with presidential democracies that hold on to the principles of checks and balance which underscore the establishment and maintenance of political liberty.
The doctrine of separation of powers originated during the ancient era when concepts were in search to describe governmental functions and theories of mixed and balanced government. The idea was to find a mechanism which would enable different arms of government to relate smoothly for common purposes. The theories of mixed and balanced government formed part of the debate. Thus, the doctrine of separation of powers was an anecdote to the search for governance procedure in the political system.
The doctrine in its original form, states that: “the government should be divided into three branches or departments; the Legislature, the executive, and the judiciary. To each of these three branches, there is a corresponding identifiable function of government, legislative, executive and judicial. Each branch of government must be confined to the exercise of its own function and not allowed to encroach upon the function of other branches”
The idea behind the doctrine is to establish a system whereby different bodies of government will act as a check on the other. James Madison had recognized this need as far back as 1788 when he wrote in the Federalist Papers 51 that: “… Ambition must be made to counteract ambition. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But, what is government itself, but the greatest of all reflection on human nature? If men were angels, no government would be necessary, if angels were not to govern men, external nor internal controls of government would be necessary. In framing a government which is to be administered by men over men… experience has taught Mankind the necessity of auxiliary precautions’’.
James Madison’s espousal on the doctrine of separation of powers was accompanied and supported by the writings of Aristotle, John Locke, Blackstone and Montesquieu which are landmarks in the history of political theory. In fact, the writings of Montesquieu had huge influence on the American Constitution which separates Legislative, executive and Judicial powers. According to Montesquieu, “as a defense against tyranny and protection of political liberty, the power of the state should not be aggregated in one body but should instead be divided amongst three branches which should act independently of each other in carrying out their respective roles”. In this case, “each body or arm will act as a check on other and in theory, one branch could not be called to account by any other”.
In Canada for instance, the Supreme Court recognizes the doctrine of separation of powers as an essential feature of the country’s constitution. The Constitution provides that, “there is …a separation of powers among the three branches of government-the Legislative, the executive and the judiciary. In broad terms, the role of the Judiciary is of course to interpret and apply the law; the role of the Legislature is to decide upon and enunciate policy while the role of the executive is to administer and implement policy”.
The aggregate opinion or views on separation of powers point to one cardinal issue which is to define roles for the three basic governmental arms: the legislature, executive and the judiciary and in this case, the legislature makes the laws, the executive implements or administer while the judiciary interprets or adjudicates the laws. Ideally, the separation of powers and performance of these functions by different bodies should act as a check on the excesses of the other, thereby reducing the possibility of tyrannical and absolute exercise of political power by one person or body.
Experts on political theory are in agreement on this point. For Per Mclachilin, “it is fundamental that in the working of government as a whole, that no one of them oversteps its own bounds, that each show proper deference for the legitimate sphere of activity of the other”. This show of deference is where the autonomy of the Legislature comes to play as a derivation from the principle of separation of powers which also emphasizes supremacy of the legislature. The argument for legislative autonomy or supremacy of the parliament is believed to have originated from the English Constitutional history following the enactment of the Bills of Rights in 1689. The doctrine holds that the legislative organ of government, as representative of the people, is superior to any other organ of government because, the legislature can, subject to the constitution of the country, pass laws which could also nullify the actions of the executive or even the courts.
It is further argued, that the legislature is empowered to summon the executive through the ministries, departments and agencies (MDAs) to give accounts of their duties before its various and relevant standing committees in order to ensure that the executive is accountable to the legislature.
In Nigeria, the constitution vests the legislature with certain powers and privileges to exercise its roles not only at the level of policy but also as a watchdog of the executive and that in some ways, defines legislative autonomy and parliamentary supremacy. Under the 1999 constitution as amended, the National Assembly, in section 88(1), has the powers of investigation into the activities of the executive, power to procure evidence section 89(1), power to receive the audited accounts of the Federation in Section 85 (2), power to appropriate funds in Sections 80-83, power to create new states in Section 8(1), power to confirm appointments in section 147 (2), power to remove auditor general of the federation from office in section 86 (1&2), power to appoint and remove chairmen and members of federal boards in section 154 (1), power to approve deployment of Armed Forces in Section 5(4) (a), power to make all laws section 4(2) and power to impeach president and /or vice president in Section 143 etc.
Even though it is believed that in constitutional democracy, no organ of government is completely autonomous in the dictionary sense of being completely a self-governing community, the manner of the relationship between the three arms of government in Nigeria is still characteristic of a government by the military where the executive arm takes over every policy issues and relegates the legislature to the background. It is no longer news that the executive arm of government appears to undermine the legislature at all levels. At the state level, the governor determines even how or what laws should be passed by the state legislature and sometimes chooses which law to obey. Resolutions are treated as non-issues even where such resolutions touch on critical issues of governance.
The incident that took at the National Assembly Abuja on Thursday 20th November, 2014 where the Nigeria Police took over the premises of the Complex in a bid to prevent the Speaker of the House of Representatives Hon. Aminu Tambuwal from gaining entrance to the Chambers for their plenary Session summoned to consider extension of emergency rule in parts of North East was anything but recklessness on the part of the executive arm of the government. The barricade of the gates and free use of tear gas by the men of the Police Force against the members were akin to unprovoked war. The issue of defection of members of National and State Houses of Assembly has been one of the challenges of our democracy since the 4th Republic in 1999. The framers of our current Constitution were not firm as to what happens to a member who defects from his/her political party to another while in Parliament. The Constitutional deficiency on lawmakers’ defection created room for this ugly development in the Legislatures since 1999 and nothing has happened. One should have thought that the energy dissipated in trying to chase Hon. Aminu Tambuwal away from his legitimate office would have been deployed in getting the Legislature to consider proper amendment of the relevant sections in the constitution to make it impossible for any member to defect from his party and still remain in the Parliament. Making Tambuwal a scapegoat does not solve the constitutional deficiency. The case of Tambuwal cannot be treated as if it is exceptional. Hon. Tambuwal has a moral obligation to resign as a Speaker having defected from the party through which he came into the House but there is nothing in the law that says that if he fails to resign, the Executive arm should use the Police to force him out. It is only the Court that can make a pronouncement as to his continued stay in office or not in line with the constitution.
The Supreme Court ruling on Obasanjo led-Federal government versus Atiku Abubakar in 2007 is still fresh in my mind. When Alhaji Atiku Abubakar defected from PDP to Action Congress to enable him contest the Presidential election of 2007, President Obasanjo approached the Supreme Court to challenge an Abuja Court of Appeal that had earlier held that Atiku remained the Vice President despite his defection from the PDP. The Supreme in a judgment delivered by Justice Olufemi Akintan held that Atiku’s tenure in office subsisted and further stated that though the action of the Vice President to decamp from his original party was morally wrong, it was legally justifiable. In that matter, the Supreme further held that it was only the National Assembly that had the power to remove the Vice President Alhaji Atiku Abubakar.
It is incumbent on the members of the House of Representatives to rely on the provisions of the constitution and House Rules to effect change in the House if the action of the Speaker required such a change. That is where the independence of the Legislature counts. The ruling party with 200 members in the House at the moment is majority out of 360 members, but the constitution requires two-third majority which is 240 members to remove the Speaker. Rather than embark on fruitless and provocative action of forceful removal of the Speaker by the Executive, it could have been more political to adopt the lobby system to get the required number to effect the change which makes it legislative action and not executive. But if the Speaker has gone to court to seek the proper judicial interpretation of the various constitutional provisions relating to his defection from PDP to APC, would it not have been more honourable for the executive arm of government to wait for the determination of the court on the matter, rather than present Nigeria as a lawless country to the international Community as social media was awash with the police invasion of the National Assembly that day.
Building a true democratic system requires the application of the principles of separation of powers and respect for different arms of government. If democracy must grow and become consolidated in Nigeria, the legislature must be allowed to exercise its constitutional responsibilities and maintain its parliamentary supremacy and legislative autonomy. While legislative autonomy does not confer on the legislature the authority to “self-governing community”, it does define the limits of power of each arm of government which further implies that encroachment on the functions of other arms was the reason why the constitution provided for limits in the exercise of the functions of each arm of government.
As noted by experts, parliamentary privilege and legislative autonomy “are grounded on the notion of the necessity of the legislature and its members to perform their functions effectively”. Therefore, the concepts of separation of powers and legislative autonomy are not “some ritualistic incantation that can be invoked unthinkingly to justify reclusive and unfettered action for any purpose whatsoever. When it is invoked properly, it will find a justification in the idea that there is a necessity to exclude outside interference to enable the legislature and its members to function effectively and properly”. After 15 years of uninterrupted democracy in Nigeria from 1999, it is time for the nation to begin the process of democratic consolidation and this becomes possible if all arms of government discharge their functions as stipulated by the constitution and with respect to each arm of the government. This will be the foundation towards building an enduring democracy-oriented political culture. The executive encroachment in the National Assembly on 20th November, 2014 was avoidable, unnecessary and a wrong signal to the forthcoming general elections. The best way to promote the rule of law is to respect the law.
(A revised version of this piece was published in the National Assembly Legislative Digest Vol. 1 No. 5 August, 2012).
- Uhuo is a Public Affairs Analyst and Commentator.