By MIKE A.A. OZEKHOME
Recently, there has been a ruckus about whether or not, the resolutions of the National Assembly are binding on the Executive, headed by the President. There are protagonists and antagonists. Still, others navigated a middle ground, (albeit subscribing to the “turn the other cheek” doctrine), stating that although the resolutions are not binding, the President ought to adhere to them for the smooth and efficient running of government.
Without being suffused with emotive reasoning which tend towards argumentum ad populum, (appeal to emotions), it is necessary to understand what the word “resolution” mean and whether resolutions are indeed, binding on the Executive arm of Government.
DEFINITION OF RESOLUTION
Resolution has been defined by Wikipedia as “a written motion adopted by a deliberative body.” According to Merriam Webster’s “resolution” is “a formal expression of opinion, will, or intent voted by an official body or assembled group”.
“RESOLUTIONS” UNDER THE 1999 CONSTITUTION
The word “resolution” appears in the Constitution, thirty-six (36) times. In all these thirty-six times, there was never a place where the resolutions of the National Assembly were given the weight of a law or an Act of the National Assembly. Although an Act of the National Assembly itself is passed into law by way of resolutions and the Head of the Executive or his Vice or Deputy can be removed by way of resolution of the legislative House (after complying with some other sections of the Constitution itself), there is no provision in the Constitution which gives the Legislature the unfettered right to dictate to the Executive, how it should exercise the powers exclusively granted to it by the Constitution, though such resolutions may influence it.
At this junction, it is apposite to examine some Constitutional provisions regarding resolutions which seem to suggest that the Legislature has power to influence the powers reserved for the Executive arm of government.
Section 5(1) (4)(a) of the Constitution provides that:
(a) the President shall not declare a state of war between the Federation and another country except with the sanction of a resolution of both Houses of the National Assembly, sitting in a joint session; and Section 6 (1)(4) of the Constitution which deals with the ideals and objectives of the National economy provides that
(4) For the purposes of subsection (1) of this section -
(a) the reference to the “major sectors of the economy” shall be construed as a reference to such economic activities as may, from time to time, be declared by a resolution of each House of the National Assembly to be managed and operated exclusively by the Government of the Federation, and until a resolution to the contrary is made by the National Assembly, economic activities being operated exclusively by the Government of the Federation on the date immediately preceding the day when this section comes into force, whether directly or through the agencies of a statutory or other corporation or company, shall be deemed to be major sectors of the economy; (emphasis mine)
Section 16 (2) of the Constitution provides:
If the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections, the National Assembly may by resolution extend the period of four years mentioned in subsection (1) of this section from time to time but not beyond a period of six months at any one time.
Section 84 (3) which provides for the appointment of the Auditor-General of the Federation, provides thus:
Except with the sanction of a resolution of the Senate, no person shall act in the office of the Auditor-General for a period exceeding six months.
88. (1) Subject to the provisions of this Constitution, each House of the National Assembly shall have power by resolution published in its journal or in the Official Gazette of the Government of the Federation to direct or cause to be directed investigation into (the matters stated therein).
Section 105 (2) of the Constitution provides that the National Assembly can by resolution, extend the tenure of elected officials when the country is in a state of war. It provides:
If the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections, the National Assembly may by resolution extend the period of four years mentioned in subsection (1) of this section from time to time but not beyond a period of six months at any one time
Section 151 (1) (2) of the Constitution provides that National Assembly shall by resolution prescribe the number, allowances and remuneration of the President’s special advisers.
Section 305 (1) of the Constitution dealing with proclamation of a State of Emergency provides that:
(2) The President shall immediately after the publication, transmit copies of the Official -Gazette of the Government of the Federation containing the proclamation including the details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation.
Section 1, Part III of the Second Schedule to the Constitution provides:
Where by this Schedule the National Assembly is required to designate any matter or thing or to make any declaration, it may do so either by an Act of the National Assembly or by a resolution passed by both Houses of the National Assembly.
SEPERATION OF POWERS AS OVERRIDING DOCTRINE
Gleaning from the above constitutional provisions, it is glaring that there is no provision which imbues the National Assembly with the power to control or constitute a clog (by way of resolutions) to the President in the exercise of his executive powers.
Whether the National Assembly’s resolutions are binding or not is a matter of robust constitutional flavour, exploration and interpretation. Since the Constitution of the Federal Republic of Nigeria has expressly delineated the jurisdiction, precinct and purview of the powers of the three arms of government, (see Sections 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria, 1999), it follows that the powers belonging to any arm of government is exhaustively dealt with.
This is the foundation and bastion of the doctrine of the rule of law. The rule of law simply posits that once the Constitution has granted powers to any arm of government, it becomes incumbent on that arm of government to religiously adhere to, and be contented with the powers so granted it and not experiment, forage or foray into the powers granted other arms.
This is the where the hallowed doctrine of the separation of powers derive from. Thus, in the case of A.G, ABIA STATE v. A.G ,FED (2006) 7 S.C (Pt 1) 51, the apex Court of the land, per Onnoghen, J.S.C. dilated lucidly as follows:
“Where the rule of law reigns, political expediency ought to be sacrificed on the alter of the rule of law so as to guarantee the continued existence of democratic institutions fashioned to promote social values of liberty, orderly conduct and development, particularly in a republic founded on the principles of federalism where power is not only apportioned between the Federal and State Governments but also the Local Governments with checks and balances.
Within the Federal and State governments, power is further apportioned among the three arms of government termed the legislature, Executive and the Judiciary see sections 4, 5 and 6 of the 1999 Constitution.”
Since Nigeria operates a Constitutional Democracy (See UGWU V. ARARUME (2007) ALL FWLR (Pt. 377) 807 at 897 Paras. D- E (SC)) based on the principles of separation of powers as eminently laid out by the Constitution itself, it follows that any act done by any other arm of government not expressly granted to it by the Constitution will be ultra-vires and be regarded as a barefaced usurpation of the Constitution for which it becomes inescapable for such act to suffer the fate of nullification by being declared null and void to the extent of its inconsistency with the overriding provisions of the Constitution by the courts of the land.
See Section 1 (3) of the Constitution and the cases of TIMOTHY V. OFORKA (2008) 9 NWLR (Pt.1091) 204 at 213, para. D (CA); ATTORNEY-GENERAL OF THE FEDERATION V. ABUBAKAR (2007) ALL FWLR, (Pt 375)1264 at 1289, paras. B – E (CA); ROTIMI AND ORS V. MACGREGOR (1974) 11 S.C. 102; EKULO FARMS LTD. V. UNION BANK OF NIGERIA PLC. (2006) 4 S.C. (Pt.II) 1; INEC v. Musa (2003) 3 NWLR (pt.805) p8.72; ADEDIRAN V. INTERLAND TRANSPORT LTD. (1991) 9 NWLR (pt.214) pg.155; A.G ABIA STATE V.
A.G FEDERATION (2002) 5 NWLR (pt.763) pg.264; ADISA V. OYIWOLA (2000) 10 NWLR (pt.674) pg.116; A.G ONDO STATE V. A.G. FEDERATION (2002) 9 NWLR (pt.772) pg.222; A-G ONDO STATE V. A-G FEDERATION (2002) 1 NWLR (Pt.772) pg.222; A-G ABIA STATE V. A-G FEDERATION (2002) 6 NWLR (Pt.763) pg.204; ABACHA V. FAWEHINMI (2000) 4 SC (pt.11) pg.1.; BALONWU V. GOV. ANAMBRA STATE (2009) 18 NWLR (Pt.1172) pg.13
In the case of A.G. ABIA STATE v. A.G. FEDERATION (2003) 1 S.C. (Pt. II) 1, the Supreme Court, adumbrated, per Belgore, J.S.C, thus;
“The principle behind the concept of Separation of Powers is that none of the three arms of government under the Constitution should encroach into the powers of the other. Each arm – the Executive, Legislative and Judicial – is separate, equal and of coordinate department and no arm can constitutionally take over the functions clearly assigned to the other.
Thus the powers and functions constitutionally entrusted to each arm cannot be encroached upon by the other. The doctrine is to promote efficiency in governance by precluding the exercise of arbitrary power by all the arms and thus prevent friction.”
PRESIDENTIAL, NOT PARLIAMENTARY SYSTEM OF GOVERNMENT
Sieving from the above, it is abundantly clear that the powers of the Legislature under our present jurisprudence to pass a resolution with regards to how an elected Executive President can exercise his executive powers is non-existent. Thus, attempting to do so, is tantamount to a gluttonous and insatiable quest for power.
This is because, Nigeria is not operating a Parliamentary system of government where the resolutions of Parliament (particularly in the United Kingdom) are equal to law. There seems to be a deliberate attempt on the part of some members of our Legislature to misunderstand the workings and tenets of the Presidential system of government (as against Parliamentary system of government) with separation of powers being the focal theme.
Under the Parliamentary system of government, resolutions alone are enough to oust the government. If the Parliament passes a resolution of no confidence, or refuses to pass an important Bill such as the budget, then the government must resign so that a different government can be appointed, or seek a Parliamentary dissolution so that new general elections may be held with a view to re-confirming or deny the government’s mandate.
This is not so under our own constitutional democracy anchored on Presidentialism where the various powers of the various arms of government are clearly spelt out. The sooner our Legislature understands this, the better for the country. Resolutions are therefore merely persuasive, morally, nudging, but not constitutionally binding. Acts of the National Assembly are binding because they have the force of law having been assented to by the President.
Nigeria operates a written and rigid constitution which clearly spells out the powers of the various arms of government. It is unconstitutional in any and every way, for any arm of government to usurp the powers of any other arm. Such, usurpation, whether advertently or inadvertently, is indefensible and unpardonable because it can lead to political bedlam and instability.
Thus, it is submitted that any attempt by some members of the National Assembly to sponsor any Bill to the effect that resolutions will become binding on the Executive (as reported by the Dailies) is tantamount to unnecessarily stirring the hornet’s nest; is completely alien and antithetical to the Presidential system of government practised every where and is a blatant attempt to distort the tenets upon which the Presidential system of government is founded. It will amount to trying to induce the tenets of Parliamentary system of government through the back door, therefore, making our governmental system, the voice of Jacob and the face of Esau!
Mike A.A. Ozekhome, SAN, is a Lagos-based legal practitioner.