October 23, 2012

Why NASS resolutions are not binding on President – SANs

Why NASS resolutions are not binding on President – SANs

By  Dayo Benson, Abdulwahab  Abdulah & Bartholomew Madukwe
LAGOS — Against the background of uncertainty over the legal effect of resolutions passed by the National Assembly, especially those directed at the Presidency, Senior Advocates of Nigeria, SANs, have risen in defence of the executive, saying such resolutions are not binding.

Specifically, some of the senior lawyers, including Prof. Itse Sagay, SAN and Chief Mike Ozekhome SAN, stated that such resolutions were merely advisory in nature and that any attempt to make them binding might lead to constitutional anarchy.

Members of the Red Chamber and President Jonathan

Mr  Lanre Ogunlesi, SAN, who cited the Senate resolutions asking President Goodluck Jonathan to sack the Director General of The  Securities and Exchange Commission, SEC, Arunma Oteh and Presidential spokesman on Public Affairs, Dr. Doyin Okupe, said they were not binding on the President.

Sagay said: “The National Assembly resolution is just an advice, it is not binding on the executive. The only thing that can be done by the National Assembly that can be binding is a Bill that has been passed and sent to the President, and the President signs it into law; only then will it be binding on the executive and it becomes law. However, when a Bill is passed and sent to the President, he vetos it, then it is returned to the House, they pass it with two-third majority, that becomes binding. Those are the only two things. But an ordinary resolution is not binding; it is an advice.”

Ozekhome said: “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. It 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.”

Ogunlesi, on his part, stated that National Assembly resolutions were not binding on the executive.

He said: They may assent to it, maybe one or two. But basically, it is not binding on the executive. Like the resolutions that Arunma Oteh and Doyin Okupe should be removed, are not binding on the executive.”

No constitutional or statutory backing

However, Mr. Segun  Ajibola, SAN, contended: “There is no gain-saying that there is no constitutional or statutory backing for the remarkable resolutions of the National  Assembly to make it binding on the executive or indeed the President. At best, they are persuasive. Though they are most times a product of the exercise of legislative powers, by way of oversights functions provided for by the same constitution.

“In this case, I think the framers of our constitution in their wisdom stopped short of carrying the process forward to meaningful conclusion in favour of the Assembly. Nevertheless, I see very little credit for any quarter to make mockery or treat the resolutions of the highest law making organ in the country with any form of absurdity or impunity. At the end of the day we are all losers of a weak and ineffective legislature and the resultant threat to our democratic make up.”

Some are binding —Falana

For Mr Femi Falana, SAN, some resolutions are binding and some are not. According to him, “there are two types of resolutions, which the National Assembly can pass. One is binding, while the other one is generally not binding. Even resolutions that are normally passed on the state of the nation may be enforced by the Executive. For example, the resolution on the doctrine of necessity was fully implemented by the executive, even though it was not binding stricto sensu.

“But resolutions emanating from investigations conducted pursuant to Sections 68 and 69 of the Constitution are binding. In the course of such investigations, the committee of either chambers can order anyone to appear before it or produce any document. Failure to obey the summons may lead to the arrest of a contemnor.

Why  resolutions are ignored

“But the resolutions of the National Assembly have been ignored because they have been directed at wrong quarters. Why dump such resolutions or reports in the Presidency? Why not simply ask the EFCC, ICPC or the Police to prosecute those who are indicted in probes. Let the head of such institutions tell Nigerians why official corruption is going to be covered up or swept under the carpet.

“In some cases, the National Assembly should file cases in court to enforce certain aspects of its report. But I strongly believe that if the Executive and the Legislature are prepared to deepen the democratic process, such resolutions should not be treated with disdain.”