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The Senate /House of Representatives imbroglio: A legal perspective

By Emmanuel Majebi

The normal learning curves for humans demand that the more you practice a certain system the more you get attuned to it.  It is thus indeed very sad that we have to be debating such mundane matters as supremacy of both houses of the national assembly after over 10 years of democracy! Which Legislative House is supreme??

Well this article is not really about the Politics of all this puerile debate rather it is about the Law and what it says about both houses of the National Assembly. The first question that would be asked here is this: Does our law create an upper and lower House of the National Assembly?

This is really where all the argument emanates from.! One House believes it is an Upper house and thus superior whilst the other one says it is not in anyway inferior to the other! I do believe that this argument comes basically from our Foundation of democracy in Nigeria which is deeply rooted in the Westminster system of Government.

In that system of Government used to be is an Upper and Lower House of the Parliament as at the time the British Colonised us and later handed over the reins of government to us on independence. Even though the House of Lord is still referred to as the Upper House, they have been practically shorn of all their powers and are now more or less subservient to the House of Commons.

Senate President, David Mark and Speaker House of Reps, Dimeji Bankole
Senate President, David Mark and Speaker House of Reps, Dimeji Bankole

In the medieval days for example there were a lot of struggles for supremacy amonsg t both Houses and back then the House of Lords enjoyed some superiority of sorts!! For example the House of Lords could exercise a veto over any Bill passed by the House of Commons but it is no more that way these days!

Over the years the House of Commons has slowly taken more and more powers whilst the House of Lords has been Largely shorn of many of it’s powers For example by the Parliament Acts 1911 and 1949, All bills except money bills are debated and voted upon in House of Lords; however by voting against a bill, the House of Lords can only delay i
t for a maximum of two parliamentary sessions over a year.

After this time, the House of Commons can force the Bill through without the Lords’ consent under the Parliament Acts. All legislation must be passed by the House of Commons to become law and it controls taxation and the supply of money to the government.

Government ministers (including the Prime Minister) must regularly answer questions in the House of Commons and there are a number of select committees that scrutinize particular issues and the workings of the government. There are also mechanisms that allow members of the House of Commons to bring to the attention of the government particular issues affecting their constituents.

The House of Lords on its own part can also hold the government to account through questions to government ministers and the operation of a small number of select committees. The highest court in England & Wales and Northern Ireland used to be a committee of the House of Lords, but it became an independent Supreme Court in 2009.

The Problem with the Nigerian National Assembly seems to stem from the fact that as at the time we got our independence in 1960 the version of the Westminster System we inherited was one in which the Upper House issue was still very dominant and we have held on to that notion ever since not bothering to put into consideration the fact that over the years the issue of upper and lower houses in Britain has largely become irrelevant. The only relevant issue now in Britain between both houses is what does the law allow you to?? What roles does the law give you as a legislative house?

The pertinent question to ask now is this :does the Presidential democracy allow for an Upper House – Lower House dichotomy?  The United States Constitution after which our own Constitution was modeled after provides for a bi_cameral National legislature made up of the Senate and the House of Representatives. The issue of one house being superior to another does not arise at all in the American Congress.  Article I of the United States Constitution vests all legislative power in the United States Congress.

The House and Senate are equal partners in the legislative process. By the different provisions of the U.S Constitution, legislation cannot be enacted without the consent of both chambers. There are however some unique powers which the Constitution grants each chamber.

The Senate for example is uniquely empowered to ratify treaties and to approve top presidential appointments; whilst Revenue-raising bills must originate in the House of Representatives, which also has the sole power of impeachment, while the Senate has the sole power to try impeachment cases. Without going too far I submit that the situation in Nigeria is exactly the same as that of the American Constitution. Section 4 of the Nigerian Constituting simply vests the Legislative power of the Federal Republic of Nigeria in the National Assembly made up of  a Senate and House of Representatives.

There is no mention anywhere of Upper or Lower House in this section. This whole idea of a Lower and Upper House to me is a confusion partly created by the Nigerian Press and partly by our refusal to divorce ourselves from the legacies of the Westminster system of Britain as it stood in the 1960’s when we inherited that version of the Westminster system.  Even today in United Kingdom there is really no such thing as Upper and Lower House of parliament!

The problem is made worse by the Nigerian Bureaucracy which has for no justifiable reasons decided that a Senator should earn more salary and emolument than a Member of the House of Representatives! What is their Judicial or Constitutional Authority for this decision?? No one knows!! In the United States of America as of the year 2006, members of the Congress (Senate and House) received a yearly salary of $165,200, whilst the Congressional leaders of both Houses were paid $183,500 per year.

The Speaker of the House of Representatives earns $212,100 per annum. (the Vice President of America is the President of the United states senate). A look at the Retirement scheme put in place for the members of the United States Congress also shows that there is no disparity between the retirement benefits of Senators and House of Reps. Members elected since 1984 are covered by the Federal Employees Retirement System (FERS).

Those elected prior to 1984 were covered by the Civil Service Retirement System (CSRS).  In 1984 all members were given the option of remaining with CSRS or switching for FERS. As at the Year 2006, the average annual pension for retired senators and representatives under CSRS was $60,972, while those who retired under FERS, or in combination with CSRS, was $35,952.

The Constitution itself does not seem to have helped matters as it seems to have conferred some form of seniority on the Senate in section 65 which provides for qualifications for a person to be elected to the National Assembly. The section says that a senate aspirant should be at least 35 years old whilst a House of Reps aspirant should be at least 30 years old! In my own opinion this section cannot by any stretch of judicial interpretational imagination be said to confer any superiority on the Senate.

It is however, note worthy that many senators are pointing to this section as an evidence of their superiority over the House of Representatives…this is very arguable! Another section that has been seized upon to fan the embers of this unnecessary fight for Supremacy is section 53(2) of the Constitution. The section provides that in a joint sitting of both Houses of The national Assembly, the Senate President shall preside and in his absence the Speaker of the House of Representatives! Many mischievous people are seizing on this provision to declare that the Senate president is the “Head of the National Assembly”?

How did they come to this conclusion? I have not seen the appellation “Head of the National Assembly” anywhere in the Constitution, thus it is unconstitutional!! To my mind this provision is just an administrative mechanism to provide for order not a conferment of superiority on any person!! If the Senate was so superior to the House of Representatives how come the Constitution says that in the absence of the Senate President the Speaker should preside; even with the “Superior” Senators in attendance? The order should have been the President of the Senate first, then the Deputy President and every Senator before we get to the Speaker? Since they are superior?

The other arguments that the Senate screens the appointees of the president are equally puerile. It is simply following the tradition of the U.S where we copied our Constitution from. Whereby the Senate and the House of Representatives have their own unique powers! The Major role of the Legislature is law making and in that role it is very clear that The Senate cannot make a law without the concurrence of the House of Representatives…in that alone there is enough evidence of parity amongst the two Houses of the National Assembly.


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