By Eric Teniola
When President Muhammadu Buhari inaugurated his cabinet on August 21, two burning issues were omitted in his speech. I am sure the issues must have been discussed at the ministerial retreat organised by the office of Secretary to the Government of the Federation and the President felt it was no longer necessary to reopen discussions on the two issues during the cabinet inauguration. The issues are relationships between ministers and ministers of state and the relationship between ministers and the National Assembly. Let us discuss the latter first.
Deep down in the heart of every minister is how to cope with the insatiable demands of the members of the National Assembly especially the committee chairmen. And these demands keep increasing daily to the extent that ministers prefer to send their Permanent Secretaries or top officials to the National Assembly.
It is not only ministers that are worried but heads of parastatals and agencies of the Federal Government. And because the members of the National Assembly have the powers to approve or disapprove the budgets of the ministries, they now hold the ministers and heads of parastatals, hostage. The ministers are under severe and constant harassment.
Section 88 of the Constitution defines the powers of the legislature to investigate. It provides as follows: 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 an investigation into: (a) any matter or thing with respect to which it has powers to make laws; and (b) the conduct of affairs of any person, authority, Ministry or government department charged or intended to be charged with the duty of or responsibility for—(i) executing or administering laws enacted by the National Assembly; disbursing or administering moneys appropriated or to be appropriated by the National Assembly. (2) The powers conferred on the National Assembly under the provisions 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 expose corruption, inefficiency or waste in the execution or administration of laws within it legislative competence and in the disbursement or administration of funds appropriated by it.”
Judging by actions of the members of the National Assembly in recent years, they have exceeded their boundaries and they now want to run the ministries as if they are part of the executives like ministers. They attend functions and events of various ministries. They want to be involved in employment and promotion of personnel in the various ministries and agencies. They also want to be involved in the execution of the various contracts in the ministries and agencies. In short, they want to be involved in the complete running of the ministries and agencies and there is no end to their demands. They have forgotten that their primary duty is to make laws and not to enforce the laws made.
I have read and reread Section 8 of the 1999 Constitution, I do not see absolute investigative powers given to the National Assembly. The former Attorney-General of the Federation, Chief Kanu Agabi, SAN, an accomplished lawyer of repute, in a paper he presented in Jos on January 23, 2001, was worried about the abuse of power by the National Assembly. He said “wide as these powers are, limits have been set to them by the constitution limits which we appear to honour more in the breach than in the observance. Can the legislature order investigation of the executive or any of its parastatals? If it suspects, even on reasonable grounds, that an individual or organisation is guilty of fraud, can it order investigation of such an individual or organisation? Can it, by motion or even by law, prohibit the payment of pensions or any other emoluments authorised to be paid by the constitution to any person, however bad? When, for any reason at all, the executive has ordered the removal of any of its members can the legislature compel the reinstatement of such persons? Can it command or order the executive to institute action in court for enforcement of its rights whenever the legislature considers that those rights have been infringed? And if it is not satisfied with the conduct of the President, can it pass a vote of no confidence on him? Can it propose expenditure on its own initiative or must such a proposal be sanctioned by government recommendation? Can it, on its own initiative, allocate funds to various government departments, agencies, projects and programmes or must it do so only on the basis of proposal put forward exclusively by the government? What remedies, are available to the legislature if in the event that the Executive withholds from it the machinery for enforcement of its decisions? Can it investigate the past even when such an investigation is not incidental to legislation or can it give directives to the government as to its future policies and programmes? These are the matters to which we seek answers. There can be no better place to go for answers to these questions than to the constitution itself which is the source of the powers of the legislature. The Legislature derives its authority from the constitution. Its powers do not reside in the members but only in the constitution. Those powers do not derive from expediency or discretion and do not depend on urgency or need. Only the constitution is supreme.”
The Legislature has claimed for itself a monitoring or investigative role but in doing so it has exceeded the limit set by the constitution. The constitution has, indeed, conferred upon the legislature some investigative powers but only for a certain purpose. That purpose, given the functions of the legislature, can only be one incidental to legislation. Against that background, the question may be asked: To what end is the legislature empowered to investigate? The answer is obvious. To achieve the ends of legislation. It cannot, for instance, be to achieve the ends which the police strive to achieve when they conduct a criminal investigation or the ends of justice which a court strives to achieve when it conducts a trial. If the legislature were to strive to achieve the ends of justice, it would be taking upon itself the duties of a court. And if its objective were to prosecute, it would be taking upon itself the duties of the executive. As it is not permissible for the judges to legislate, so it is not permissible for the legislature to adjudicate. And that is why the judges are compelled to enforce the law as it is and they are never allowed to inject into it their own notions of what it ought to be.
The legislature must therefore limit itself to the powers conferred upon it by the constitution not withstanding that by exercising other powers not conferred upon it by law it can aid, facilitate or enhance the efficiency of the government.
The other issue is the relationship between ministers and ministers of state. We are being told daily that there are no junior ministers. Even the constitution does not recognise junior ministers but in reality there are junior ministers. Appointment of ministers of state was more pronounced during the civilian governments than during the military. Maybe, because the civilians have a larger political constituency than the military
Teniola, a former director at The Presidency, lives in Lagos
Appointment of Ministers of State can be traced to the First Republic and the first Minister of State appointed in this country is a Cameroonian, Chief Victor Mfon Esemingsongo Mukete from Kumba in the present Cameroon. And that was when Cameroon was still part of Nigeria. Mukete is currently a senator in Cameroon. Mukete served as a Minster of State in Nigeria in 1957.
There have always been conflicts between ministers and ministers of state and there will always be especially when they have one Permanent Secretary. This issue was treated at the fourth retreat for ministers and permanent secretaries at the National Institute for Policy and Strategic Studies, Kuru, Jos, in 2001.
In a communiqué issued at the end of the retreat, it was adopted that both ministers and ministers of state must work together as a team. They both need each other.
Teniola, a former director at The Presidency, lives in Lagos