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Examining the Utility of Fish and Kroenig's Legislative Powers Survey in Assessing the Effectiveness of Nigeria's National Assembly

Document Cited authorities 3 Cited in Related
Vincent
DOI10.3366/ajicl.2015.0130
Pages435-461
Date01 October 2015
Author
Published date01 October 2015
INTRODUCTION

Modern political and legal theory agrees that there are three branches of government: the legislature, the executive and the judiciary. The legislature is the representative branch saddled with the responsibility of making law, the executive implements or executes the law while the judiciary serves as arbiter to interpret and declare what the law is whenever there is a dispute. The delineation of these functions in a state is done through the instrumentality of law or legislation. The importance of the existence of separate branches of government is the provision of checks and balance to stop the excesses of each of the branches. Given the importance of law in a society, the legislature occupies a prime position among state institutions. In his exposition of the primacy of the legislature, Locke wrote that the branch where the power of legislation resides typifies the sovereignty of the state.1

John Locke, Two Treatises of Civil Government, Mark Goldie (ed.), Everyman Library (1993), p. 191, paragraph 150. Locke pointed out at paragraph 149, however, that the legislative power is a fiduciary power to act for certain ends and as such, there remains still in the people a supreme power to remove or alter the legislative power when the legislative power is exercised contrary to the trust reposed in the legislature.

Taking this point further from a modern perspective, Nwabueze notes that legislation ‘is the expression of the supreme power in the state, the distinctive mark of a country's sovereignty, and the index of its status as an independent state. Thus, the sovereign power in a state is identified in the organ that has the power to make laws by legislation. The legislature is therefore the sovereign organ of state power’.2

Ben Nwabueze, Constitutional Democracy in Africa, vol. 1, Spectrum Books (2003), pp. 182–3.

The legislative powers of the Federal Republic of Nigeria are vested in the National Assembly,3

Section 4(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), (hereinafter ‘the Constitution’).

which comprises the Senate and the House of Representatives.4

Ibid. Nigeria being a federation each of the thirty-six states has a legislative assembly but the National Assembly is the national legislature: sections 4 (6) & (7), ibid.

 Although having the making of legislation as its primary function,5

Sections 58 and 59, ibid.

 the National Assembly, like any modern legislature, nonetheless has other functions conferred on it by the Constitution. These include removal of the president and the vice-president upon committing a gross violation of the Constitution,6

Section 143, ibid.

 passage of treaties entered into by Nigeria into law,7

Section 12, ibid.

 confirmation of certain executive appointments8

This concerns the confirmation of ministerial, judicial, ambassadorial nominees and nominees to the chairmanship and membership of certain federal executive bodies, and into the office of the auditor-general of the federation: sections 86(1); 147(2); 154(1); 171(4); 231 (1) (2); 238 (1); 250 (1); 256 (1); 261 (1); 266 (1); 3rd schedule sectionsà 7 (2) & 14 (3), ibid.

 and oversight of the activities of the executive. The ability of the National Assembly to perform these and other necessary functions effectively is an indication of the level of the power of the assembly

As the sovereign organ of state power, the legislature should ordinarily play a prominent role in the governance of the people by being a vibrant institution of government. Power indices across states and the literature on government and constitutional law have both pointed not only to an imbalance in favour of the other organs of government but also to a denigration of the legislature as an important institution of government.9

See Richard Bauman and Tsvi Kahana (eds), The Least Examined Branch, Cambridge University Press (2006).

Waldron criticises the tendency to disparage legislatures and argues that such disparagement is often a way of bolstering the legitimacy of the courts.10

Jeremy Waldron, Law and Disagreement, Oxford University Press (1999).

 His analysis of the ‘disparagement of the legislature’ is a disagreement with judicial reversal of legislative enactment. Although it might be difficult to agree with Waldron's anti-judicial review posture, his treatise on the need to accord greater respect to the legislature is of momentous value in the consideration of the legislature as a branch of government

Arguing on the primacy of the legislature, Unger noted that one of the ‘dirty little secrets of contemporary jurisprudence’ is ‘its discomfort with democracy’.11

Roberto Mangabeira Unger, What Should Legal Analysis Become?, Verso (1996), pp. 72–3.

A major pointer to this jurisprudential failure is what he calls the ‘marginalisation’ of legislation.12

Ibid, at 115.

 These views represent a strong jurisprudential approach for the recognition of the legislature and its output – legislation – as occupying positions of primacy in government. Beyond the rhetoric of the need for a renewed positivist ideology to law, there is an increasing concern about the role of the legislature in the state and whether the legislature is able to perform its role effectively.13

See R. Bauman and T. Kahana, supra note 9; Joel Barkan, Legislative Power in Emerging African Democracies (ed.), Lynne Rienner Publishers (2009).

 This is the point at which the relevance accorded the legislature in a state and the level of its power become of primary interest needing necessary assessment. The relevance and power of the legislature are direct indications of the effectiveness of the institution. Therefore, in studying the legislature and its power vis-à-vis that of the executive, the starting point is to measure its level of effectiveness

There were no universal indicators for assessing the effectiveness or power of the legislature until the publication of the Legislative Powers Survey (LPS), developed by Fish and Kroenig. This article evaluates the usefulness of the LPS to the study of the Nigerian central legislature, the National Assembly, and finds that the results based on them are not satisfactory because of the wrongfulness of some of the indicators contained in it. This article contends, therefore, that in assessing the effectiveness of the legislature of a particular country, a country specific indicator that takes into cognisance formal allocation of power in the Constitution and other statutes, the adequacy of the powers granted together with empirical evidence of how those powers have been used, is of greater utility than universal indicators that incorporate too many indices of little local relevance.

This article is divided into four sections. The first contains the background to the current analysis and hints at the substance of this article. Since legislative effectiveness is at the core of the evaluation carried out by Fish and Kronig and the critique that follows in this article, the second section takes a cursory look at the imperative for legislative effectiveness in Nigeria and, indeed, countries that fall within the ‘third wave of democratisation’. The third section examines, with a necessarily critical eye, the use of the LPS in assessing Nigeria's National Assembly, pointing out areas of concern with regard to the correctness or appropriateness of items in the LPS. The fourth section concludes with the need to rely less on universal indicators, such as the LPS, in assessing the legislature of individual countries. The conclusion to this article, which is based on the analysis of the result of the LPS assessment of Nigeria's National Assembly, is that the LPS would be more useful if it serves as a guide in designing country-specific measuring tools or indicators and not as a universal measuring tool itself.

 THE RELEVANCE OF LEGISLATIVE EFFECTIVENESS

Shortly after independence, most of the newly independent African countries had either authoritarian presidents,14

Kwasi Prempeh, ‘Africa's ‘Constitutionalism Revival’: False Start or New Dawn?’ 5(3) International Journal of Constitutional Law (2007): 469–506.

or soon experienced an undemocratic take-over of government. Wherever there was a military coup d’état, the legislature was in abeyance. In countries where authoritarian presidents ruled, the legislature became either a ‘mere decorative organ’,15

James Oyakhirome, ‘The National Assembly 1992–1993 in Retrospect – a mere Decorative Organ?’ 2(1) University of Benin Law Journal (1995): 114–20. A legislature that is a mere decorative organ is obviously worse than a rubber stamp legislature. While the latter term describes a legislature that lacks independent decision-making capacity due to manipulation by the executive organ, the former describes a legislature that lacks any power in whatever sense in that it is not even a law-making assembly but only a talking shop.

 or a ‘rubber stamp’16

See Joel Barkan, ‘South Africa: Emerging Legislature or Rubber Stamp?’ in Joel Barkan, supra note 13, 205–27.

 institution in relation to the president. In spite of the end of the Cold War and the triumph of democracy worldwide in what has been described as the ‘end of history’,17

Francis Fukuyama, The End of History and the Last Man, Avon Books (1992).

 and the attendant ‘global democratic revolution’ or ‘third wave of democratisation in the modern era’,18

Samuel Huntington, The Third Wave: Democratisation in the Late Twentieth Century, University of Oklahoma Press (1992).

two crucial issues have worried scholars and watchers of democratisation in Africa. The first being the place and role of the legislature in the emerging democratic systems19

Joel Barkan, ‘African Legislatures and the ‘Third Wave’ of Democratisation,’ in Joel Barkan, supra note 13, pp. 1–30.

 and, secondly, whether lately, there is an imminent danger of democratic reversal rather than democratic consolidation in the continent.20

Stephen Akinyemi Lafenwa...

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