PROCLAMATION, DEFECTION, EXPULSION, OTHERS: CONTENTIOUS ISSUES IN LEGISLATIVE DISCOURSE
Legislature can be described as the engine and heart of democracy. Without a working legislature, executive powers become limitless; checks and balances or separation of powers, characteristic of parliamentary democracy, will equally be ineffective or worse, non-existent. In this anomalous situation where legislature is impotent, the executive becomes Lord of the Manor, arrogating to itself powers that are fundamentally and constitutionally the exclusive preserve of the legislative arm.
The crucial role of the Legislature is premised on its conferred institutional powers of lawmaking, representative and deliberative function, approval of annual budgets, confirmation of executive nominations, over-sight function, impeachment of the executive, and ratification/approval of treaties/agreements.
Given the aforementioned, the legislature is the distinctive element of a democracy: the best system of government. In any representative democracy, however, there are contending issues that affect the functionality of the legislature as an assemblage of representatives of the people. These issues throw up both ethical and constitutional challenges on the institutional powers of the legislature and its membership to operate unhindered.
In this discourse, we shall attempt to look at separation of powers between the legislature and the executive concerning proclamation (inauguration and dissolution) of parliament, approval of budgets, as well as political defection and expulsion of members of legislature in Nigeria and elsewhere. We shall examine related and comparative practices elsewhere and make attempts at clarifying what should be the standard and best practice.
PROCLAMATION OF THE PARLIAMENT
The life cycle of a parliament is regulated by constitutional provisions as well as standing orders. In Nigeria, proclamation (opening or dissolution) of parliament is provided for in the 1999 constitution of the Federal Republic of Nigeria (as amended). Sections 64(3) and 105(3) are apt in this matter. Section 64(3) read thus: ‘’subject to the provisions of this constitution, the person elected as the President shall have power to issue a proclamation for the holding of the first session of the National Assembly immediately after his being sworn in, or for its dissolution as provided in this section’’.
Similarly, section 105(3) underlines that ‘’subject to the provision of this constitution, the person elected as the Governor of a state shall have power to issue a proclamation for the holding of the first session of the House of Assembly of the State concerned immediately after his being sworn in, or for its dissolution as provided in this section.
The contention here is must parliament or legislature commence its first or opening session consequent on the issuance of proclamation by the executive? Put in another words, must the executive issue proclamation before the legislature commence its first legislative business?
Some pundits have argued that parliament need not wait for the proclamation by the executive before commencing its first session. Their argument is premised on the fact that legislature is first among equals and should be independent of executive control. The pundits further imagine what becomes of the legislature in a situation where the executive chooses to operate without the legislature and refuses to issue proclamation for the opening of parliament.
However, it is pertinent to state clearly that the constitutional provision on the foregoing matter regarding proclamation of Parliament by the executive is clear and unambiguous. As opposed to the view of the pundits who claim that executive’s proclamation of the legislature is weird and uncommon, nearly all the major commonwealth countries have their parliaments open consequent on the receipt of proclamation by the executive.
In the United Kingdom, Canada, Australia, and the United States, the practice is the same. In Canada, summoning of parliament is consequent on section 38 of the constitution Act 1867, which provides that ‘’The Governor shall from time to time in the Queen’s Name, by instrument under the Great Seal of Canada, summon and call together the House of Commons’’. In Australia, it is the decision of the Governor General, constitutionally, to dissolve or prorogue, and to appoint the times for the holding of sessions of the parliament. Usually, parliament must be summoned not later than thirty days after the general election.
In India, the Governor is the chief executive in a State. He summons the sessions of both houses of the state legislature and prorogues them. In a presidential democracy like the United States, the governors of the states of Louisiana and Alabama have the power to issue proclamations to include, but not limited to, convening the states’ legislatures.
Generally, parliament is formally summoned after it has been dissolved, an election held, and a new parliament elected. It’s also summoned after a session of parliament has been terminated by prorogation. The power to summon parliament therefore is closely related to power to prorogue and the power to dissolve. It does not arise in circumstances where the House has adjourned, unless there is an intervening prorogation or dissolution.
Although in the early parliamentary history of England the summoning and closing of parliament was at the unfettered discretion of the Crown. There were periods lasting several years (for example 1614-21) when the parliament was never summoned to meet and other periods when the Crown kept the parliament in existence as long as it pleased (for example 1663-78).
However, with the development of constitutional monarchy and the passing of statutes relating to the duration of parliaments (first in 1694), parliamentary meetings became more regular.
Overtime, the development of constitutional democracy in all commonwealth countries has defined parliament’s lifetime and equally established summoning and dissolution of Parliament as a constitutional duty of the executive branch. Indeed, the Nigerian constitution is unambiguously clear about the role of the executive to inaugurate and dissolve the parliament. This role of the executive to issue proclamation for the opening and closing of legislature is merely a constitutional obligation placed on the arm of government in line with the principles of separation of powers for the purpose of ensuring checks and balances between the executive and the legislature. It does not mean that the legislature is subservient to the executive.
The concept of separation of powers connotes that each arm of government respects the independence of the other arms of government and where there’s a specific infraction of the power of an arm of government by any other, the onus is on the arm whose power is being undermined to recourse to the constitutional law for redress.
BUDGET APPROVAL BY PARLIAMENT
The constitutions of various democracies specifically confer power of the purse on the legislative arm of government. Although budget initiation and development is typically within the executive’s constitutional jurisdiction the law requires that the legislature scrutinize the budget before approving it. In Nigeria, section 81(for the National Assembly) and section 121 (for the State Assembly) require that the president and the governors present annually the estimate of the revenue and expenditure of the nation and States to their respective legislatures for approval before the commencement of each financial year.
Similarly, the constitution further prohibits the executive from spending from the consolidated revenue fund without the approval of the legislature in Section 80(2) (3) of the Constitution, for the Federal, and Section 120(2) (3) for the State. The contentious issue regarding approval of budget is predicated on whether or not the legislature has power to alter the provision of the budget as presented to it by the executive. Can the legislature reduce, increase the budget estimates brought before it for approval or can it introduce new items to the budget? These are challenging constitutional questions that border on powers and limits of the legislature within the doctrine of separation of powers.
A legislature’s budget power is usually based on the constitution under which it operates. In the case of democracies with no written constitution, such as the United Kingdom, tradition and precedents dictate parliament’s prerogatives in the budget sphere. Most constitutions specify that the executive prepares and submits a budget and that no funds may be taken from the government’s coffers unless authorized by an act of the legislature.
The 1999 Constitution of the Federal Republic of Nigeria, which is anchored on the presidential system of government, like the US Constitution, empowers the legislature to review, debate, amend, approve or reject the spending plan proposed by the executive. Like the US Congress, which possesses unlimited amendment powers in the budget proposals, the constitution allows the legislature in Nigeria to remove or add programmes, change funding levels, add or remove taxes or other sources of receipts, when considering a budget bill. Where the executive withholds its assent to the adjusted budget passed by the Legislature the Constitution further empowers the parliament to review and pass the budget. This means the legislature’s overriding veto power is equally extended to budget approvals.
Instructively, the National Democratic Institute of International Affairs classified budgetary powers of legislatures as, thus, budget making, budget influencing and budget approving.
Legislature in the budget making role has the capacity to amend or reject the executive’s budget proposal and to formulate a budget of its own. A typical example is United States
A budget influencing legislature has the capacity to amend or reject the executive’s budget proposal, but lacks capacity to formulate and substitute budget of its own. Countries in this category include Germany, Philippines, Poland, Hungary, and India.
A Budget Approving legislature lacks the capacity to amend or reject the executive’s budget proposal or to formulate a budget of its own. It is confined to assenting to the budget that is placed before it. Parliaments here are South Africa, Israel, Namibia, United Kingdom and Canada.
Although the constitution empowers the legislature in Nigeria to be in the budget making category, practice and convention influenced by party politics and prevailing political culture are responsible for making our legislature to swing between budget-influencing and budget-approving status.
POLITICAL DEFECTION OF LEGISLATORS
Another contentious issue in legislative discourse is whether or not a serving member of the legislature can be expelled from the parliament on the grounds of defecting to another party or committing an offence relating to breach of parliamentary rules. It has been established that most, if not all, constitutional democracies operate parliamentary institutions that are governed by laws, rules and standing orders. In Nigeria, Legislative institutions are governed by the Constitution and the Business, Rules and Standing Orders.
As regards defection, Section 40(6) of the Constitution provides that “Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade or any association for the protection of his interests.“ Much as this section of the Constitution gives legitimacy to freedom of association in Nigeria, Section 68(1) of the same Constitution prohibits political defection.
According to Section 68(1)(g) “A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected; it states that provided his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored.”
This section of the constitution though makes defection as grounds for removal of an elected member from office yet allows for defection on the basis of party division or internal conflict within a party. The ambiguity in this section of the Constitution has not been able to abate the increased rate of political defections in the country. Rather than discourage cross carpeting of politicians from one party to another, the Constitution has provided escape route and alibi for political defectors within legislative milieu.
Legislators and politicians alike are known to defect to another party to prosecute their political ambition. This situation has become this peculiar because politics is primarily perceived has the sharing of huge scarce resources which makes the struggle for state power brutal among various political interest and competing groups. This is the scenario for which Professor Okwudiba Nnoli defines politics as all the activities that are directly or indirectly associated with the seizure of state power, use of state power and consolidation of state power. Politics is thus seen as the struggle for the minds and resources of men and the nation.
Pundits see cross-carpeting from one political party to the other as self-serving and profitable to only those who are doing it. They contend that defection of legislators from one party to another does not only compromise the integrity of legislatures but also threatens the development of representative democracy in Nigeria. Nowhere in the developed democracies, like England, France, Germany, USA, where we borrowed our dispensation and governance, is party defection a common occurrence. Even in African countries like Ghana, Liberia, Guinea and elsewhere, defection is rare compared to what obtains in Nigeria.
Sadly, the constitution and the electoral law have remained vague on this matter and have not been able to specifically address whether or not it is trite for legislators to defect to another party while in office. Even the court ruling on this matter has been ambiguous and ambivalent. Section 68 (1) (g) is inadequate. It should include all politicians holding public offices and not just members of the National Assembly.
Although Section 68(1)(g) of the Constitution has been used by law courts to punish defectors like Governor David Umahi, and his deputy, Kelechi Igwe, and 15 lawmakers in Ebonyi State, who defected from the People’s Democratic Party to the All Progressives Congress, in which the Federal High Court in Abuja had sacked all the defectors, declaring that votes during any elections in Nigeria belonged to political parties and not candidates, yet Section 141 of the Electoral Act, 2010 (as amended) implies that it is the candidate and not the political party that sponsored him who contests and wins or loses in any election.
In this line, a private member bill was sponsored in 2022 by a member of the People’s Democratic Party from Taraba State, Rimande Kwewum, to amend sections 141(1) and 189(1) of the Constitution with a view to checking incidents of defections or abandoning the political party, which sponsored a president, vice-president, governor or deputy governor as the case may be, for another political party in the absence of a merger of political parties, division or factions within the sponsoring political party. The bill had sought to complement Sections 68(1) (g) and 109(1) (g) of the Constitution which only frown at defections of lawmakers at the National Assembly and State Houses of Assembly. However, the bill failed to pass after both chambers voted against it during the last constitution amendment.
On the defection polemics, some pundits are of the strong view that legislators and politicians alike should be allowed to switch parties based on ideological reasons, in-fighting and intra-party fragmentation, while others hold that any elected politician that defects to another party should be made to stand down and seek re-election for the purpose of deepening the practice of democracy in Nigeria.
EXPULSION OF LEGISLATORS
The last contentious issue here is the expulsion of legislators from the legislature on the grounds of breaching parliamentary rules of the parliament. In Nigeria, we have seen cases where legislators were expelled by the leadership of the legislature for allegedly violating rules and ethics of the parliament.
In the opinion of Mr. Femi Falana, Senior Advocate of Nigeria (SAN), “No legislative house can suspend or remove a member. It is only a court of law or the constituency that elected them that can order the removal or suspension of their representative.” According to him “this is because when you remove or suspend a legislator, his constituency no longer has a representative in that house and that is not legal.”
Femi Falana maintained this position following his legal defense of the suspension of a female legislator in Bauchi State, who was suspended indefinitely by the state’s parliament over a statement made during plenary. The legal luminary equally defended Dino Melaye and others who were suspended indefinitely by the National Assembly in 2011.
In Nigeria, Sections 68 and 109 of the Constitution specifically underline conditions under which a legislator can cease to be a member of the parliament. Besides defection, absence from the meeting of parliament without just cause for a period amounting to more than one-third of the total number of days during which the parliament meets in a year is a ground for the expulsion of any legislator in Nigeria. The question is can parliament make a legislator absent from the parliament as a result of suspension, which itself is caused by the
violation of parliamentary rules and ethics of the assembly? In Nigeria, suspension or expulsion of members of parliament on account of breach of parliamentary regulations and order is unconstitutional.
Although parliaments are governed by the constitution and business, rules and standing orders, the supremacy of the constitution cannot be vitiated by the rules and orders that the parliament made to govern itself. In this case, Section 1(3) of the Constitution unambiguously states that “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
Conversely, in the United States of America, breach of the legislative rules and decorum is a ground for expulsion of legislators from the parliament. A record case is the Tennessee Three( Justin Jones, Justin Pearson and Gloria Johnson), Democratic members of the Tennessee State Capitol, who underwent the rare process of an expulsion vote as a result of their roles in a gun control demonstration. While Justin Jones and Justin Pearson, both young, Black Democrats who represent Districts 52 and 86 respectively were ousted from the GOP- dominated chamber. Johnson, who is white, survived the vote and held on to her District 90 seat. However, Jones and Pearson shortly after returned to the Tennessee House after they were reappointed through unanimous votes by local officials in their respective districts.
Expulsion is the most serious form of disciplinary action that can be taken against a Member of Congress. The United States Constitution (Article I, Section 5, and Clause 2) provides that “Each House (of Congress) may determine the Rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member.” Normally, the case is referred to the Committee on Ethics for investigation and consideration. The Committee then comes up with its recommendations to the House as to whether or not the member being alleged to have committed the wrongdoing is guilty.