The principle of separation of powers is the major ingredient of democracy, which guarantees that the executive arm of government controls neither the affairs of the legislature nor that of the judiciary. The doctrine of separation of powers, as propounded by Baron Montesquieu, a French scholar, in 1747 in his book ‘Espirit Des Louis’ (The spirit of the laws), signifies that one person or body of persons should not exercise all the three powers of the government.
Montesquieu reasoned that if political power is concentrated in the hand of a single person or group of people, it would result in a tyrannical government. To avoid this seeming anomaly with a view to checking the arbitrariness of the government, Montesquieu suggested that there should be a clear-cut division of power between the three organs of the state (the Executive, the Legislature and the judiciary) In other words, the theory of separation of powers signifies three formulations of the structural classification of government powers:
- The same person should not form part of more than one of the three organs of the government. For example, Ministers or Commissioners should not sit in parliament.
- One organ of government should not interfere with any other organ of the government.
- One organ of the government should not exercise the functions assigned to any other organ.
However, the rigidity of separation of powers in the manner prescribed by Montesquieu, without dilution, makes it impracticable in modern-day societies. In practice, what is obtainable in modern day democracies is the simultaneous application of the principle of separation of powers and the dilution of powers.
In the United States of America, for instance, although Article 1, section 1 vents all legislative powers on the congress, Article ii, section 1 vents all the executive power in the President of the United States, and Article iii, section 1 vents all judicial powers in the Supreme Court, in spite of the express mention of this doctrine in the Constitution, the US incorporates exceptions to the principle of separation of powers with a view to introducing a system of checks and balances. In this line, the executive can veto a bill passed by the Congress, while the treaty-making power of the President must be approved by the congress. The Supreme Court has power to declare the acts by congress unconstitutional.
In England, what obtains is the Westminster or parliamentary form of government where the crown is the nominal head and the real legislative functions are performed by the Parliament.
There is no absolute doctrine of separation of powers in the UK
Constitution. Overlaps exist both in terms of the functions of the organs of the state and the personnel operating within them. The branches of the state are closely linked. For example, the Prime minister is both head of the executive (government) and generally the leader of the majority party. The three branches can overlap and therefore there can be an amalgamation or fusion of powers. UK relies on the system of checks and balances to prevent abuses of power
The foregoing philosophical background of separation of powers, which defines the institutional relations among the three arms of government, provides theoretical framework for our discussion on issues that characterize legislative oversight in Nigeria. The issues we are concerned about borders on the definition or specificity of the oversight; its scope or latitude, significance of the oversight, methodology of execution and ethical issues arising therefrom in relation to the constitutional stipulations.
UNDERSTANDING LEGISLATURES AND LEGISLATIVE OVERSIGHT
According to the United States’ Agency for International Development (USAID, legislatures are the people’s branch of government, the institution where citizen interests and preferences are expressed and transformed into policy. A Legislature is said to be a complex, multi-faceted organization, with a plethora of purposes and functions. Basically, the functions of a legislature are representation, lawmaking and oversight.
Exercising oversight over executive programmes and activities is critical to an effective legislature and effective democratic governance. Oversight includes investigation to detect waste and corruption.
Legislatures are said to vary in their ability and willingness to undertake oversight activities, depending on constitutional structure, access to budget information, powers to review and amend budgets, power to conform and remove executive appointments.
There is no gainsaying the fact that the wisdom in undertaking legislative oversight is to encourage checks and balances, enthrone fiscal discipline, good governance, accountability and transparency in public offices.
Oversight promotes accountability in government through enforcing efficiency and cost effectiveness in the course of generating people-oriented policies and programmes necessary to address the numerous challenges confronting governments at all levels.
Conceptually, the functions of legislatures go beyond making, amending or repealing laws. They equally include, as embedded in their oversight function, ensuring improvement of the efficiency, economy and effectiveness of governmental operations; evaluating programmes and performance; detecting and preventing poor administration, waste, abuse, arbitrary and capricious behavior or illegal conduct; protecting public interest; gathering information to develop new legislative proposals or to amend existing statutes; ensuring administrative compliance with legislative intent; and preventing
encroachment on legislative authority and prerogatives.
Perhaps one of the foremost significance and importance of legislative oversight is to help bring to the knowledge of the public what the executive branch is doing. In this line, Woodrow Wilson in 1885 opined, as paraphrased, that Unless congress have and use every means of acquainting itself with the acts and dispositions of the administrative agents of the government, the country would be helpless to know how it is being served, and unless Congress both scrutinize and sift every form of government policy and programme, the country would remain in embarrassing, crippling ignorance of the very affairs which it is most important it should understand and direct.
From the submission, we can deduce that Woodrow Wilson preferred the informing function of the legislature to its legislative
According to Ndoma-Egba, legislative oversight refers to the powers of the legislature to review, monitor and supervise government agencies, programmes, activities and policy implementation strategies of the executive arm of government.
This is to ensure that the arm sustains the principles of good governance, remains responsive, transparent and accountable to the electorate.
According to Onuoha, the legislative oversight presupposes that the legislature monitors, raises queries and where necessary, censors executive activities, activities of government agencies (such as Ministries, Departments, Agencies, etcetera) to ensure good governance and accountability.
The fundamental objectives of legislative oversight are:
i. To ensure executive compliance with legislative intent
ii. Improve the efficiency, effectiveness and economy of governmental operations
iii. Evaluate programme performance
iv. Prevent executive encroachment on legislative prerogatives and powers
v. Investigate alleged instances of poor administration, arbitrary and conspicuous behavior, abuse, waste, dishonesty and fraud.
vi. Assess an agency or official’s ability to manage and carry out programme objectives
vii. Review and determine financial priorities of the government.
viii. Ensure that executive policies reflect the pubiic interest (ix) Protect individual rights and liberties
x. Review agency rule-making processes
xi. Acquire information future policy making.
The 1999 Constitution of the Federal Republic of Nigeria provides for a presidential system of government based on the principle of separation of powers between the legislature, the executive and the judiciary. At the federal level, legislative powers are vested in the National Assembly comprising a Senate and a House of Representatives;
executive powers are vested in the president who may exercise such powers directly or indirectly through the vice-president, ministers of his government and other officers in the public service of the Federation; while judicial powers are vested in the Courts established for the
Similarly, at the state level, legislative powers are vested in the State House of Assembly; executive powers are vested in the governor, who may equally execute such powers directly or indirectly through the deputy governor, commissioners of his government and other publi officers of the State; while judicial powers are vested in the Courts established for the State.
The major distinguishing feature of democracy, which sets it apart from other systems of governance, is the presence of the legislature.
As a corollary to the above, the Nigerian constitution is apt.
According to Section 88(1) of the 1999 constitution of the Federal Republic of Nigeria(as amended) “…each House of the National Assembly shall have power by the resolution published in its journal or in the Official gazette…to direct or cause to be directed an investigation into:
- Any matter or thing with respect to which it has power to make laws: and
- The conduct of affairs of any person, authority, Ministry of government department charged, or intended to be charged, with the duty of or responsibility on m
- Executing or administering moneys appropriated or to be appropriated by the National Assembly.
The powers conferred on the National Assembly under the provision of this section are exercisable only for the purpose of enabling it to:
(a) Make laws with respect to any matter within its legislative competence and correct any defects in existing laws, and
(b) Expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement of administration of funds appropriated by it.
Similarly, Section 128 of the constitution gives the State Houses of Assembly corresponding powers as above.
Section 128(1) says: Subject to the provision of this constitution, a House of Assembly shall have power by the resolution published in its journal or in the Official gazette of the State to direct or cause to be directed an investigation into:
Any matter or thing with respect to which it has power to make laws, and
The conduct of affairs of any person, authority, Ministry of government department charged, or intended to be charged, with the duty of or responsibility for:
(1) Executing or administering moneys appropriated or to be appropriated by such House.
(2) The power conferred on a House of Assembly under the provision of this section are exercisable only for the purpose of enabling the House to:
(a) Make laws with respect to any matter within its legislative competence and correct any defects in existing laws, and
(b) Expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement of administration of funds appropriated by it’
OVERSIGHT POWERS AND THE LIMITATIONS
The oversight powers of the legislatures are not without limitations. They are a means to an end and not an end in itself.
The Sections 88(2) and 128(2) of the 1999 Constitution clearly underline investigative or oversight purview of the legislature (both at federal and state levels) in Nigeria. These sections of the constitution imply that the investigative powers given to the legislatures are neither absolute nor meant to usurp the powers of the executive and judiciary. Ideologically, oversight function is not meant to witch-hunt, arm- twist, intimidate, harass other arm(s) of government or turn legislators quasi-iudicial demigods.
Essence of legislative oversight has been vividly captured earlier in this discourse. Oversight is meant to ensure, sustain and promote good governance, and anything contrary o this is antithetical to international standards and best practices. For instance, when an oversight is about detecting fraud or waste, the following requirements must be complied with. First, the accused must be given the details of all allegations or statements made against him; then he must be afforded reasonable time and opportunity to prepare his defense effectively to all the matters at issue; he must be able to confront and challenge his accuser or accusers at his trial or during any investigation. These requirements apply in all situations and to all proceedings involving any form of trial or investigation no matter who conducts the trial or carries out the investigation.
In line with this, legislatures in Nigeria use Committee of Enquiry or Special Committee, Standing Committee, Public Hearing, Auditing Institutions and Interpellations to carry out constitutional and investigative mandates. Accordingly, Section 85(5 for the federal legislature and Section125 5 for the state legislature are apt. In these sections of the Nigerian constitution, the Auditor-General is required, within 90 days of receipt of the Accountant-General’s financial statement, to submit its reports to the legislature, which will commit same to the committee on public accounts. The Committee in turn will convene a meeting or hearing between the accounting officers of the Ministries, Departments and Agencies (MDAs) and the Auditor-General, to look at the audit queries and issues raised by the Auditor-General in his report. This process is fair enough, for it puts the indicted MDAs (the accused) on notice and prepares them for meeting or defense with the legislature (the judge) about the financial anomalies recorded against them by the Auditor-General (the prosecutor). Here, auditing institution and standing committee are used. At other times, it could be any other legislative oversight tools highlighted above.
In line with best practices, the findings and recommendations of the investigating committee(s) are sent to the authorizing House to become resolutions when approved. The resolutions of the legislature are therefore communicated back to the executive for implementation in line with the principle of separation of powers. What is salient here is that legislatures do not implement their resolutions but only ensure that concerned arm (5) of government carries out the dictates of the resolutions.
In line with the foregoing, the Lagos State House of Assembly which is famous for being above common standards of excellence has a standing committee known as Legislative Compliance that is saddled with the responsibility of ensuring that resolutions passed by the House are implemented by the executive. Besides this mechanism, the House periodically engages the executive on programme and policy performance via a budget review exercise on quarterly basis. This budget performance review exercise is a potent tool that the House uses to ensure compliance with its resolutions and make the executive accountable to the people