THE EVOLUTION OF THE LEGISLATURE AND THE CHALLENGES FOR DEMOCRACY IN NIGERIA:AN OVERVIEW

By Honourable Dr Usman Bugaje, Chairman, House Committee On Foreign Affairs, at the Seminar on Strengthening Democratic Values through Parliamentary Cooperation, organised by the National Assembly in collaboration with the Canadian Parliament, held at Abuja, Nigeria, from 23^rd – 26^th August, 2003.

The history of modern legislature in Nigeria could be said to have started with the Legislative Council established in 1862 for the Colony of Lagos by the British Colonial powers. The Legislative Council composed of the Colonial Governor, six officials, two Europeans, and two Nigerians, who were unofficial members, had the only function of advising the Governor. It did not have other legislative powers as we know them today. Following the amalgamation of the Colony of Lagos with the Southern and Northern Protectorates in 1914, there was established a Nigerian Council which existed side by side with the Legislative Council. The Nigerian Council was comprised of 36 members, out of which 23 were Europeans officials, 7 European businessmen, and 6 Nigerians mainly traditional rulers. The Nigerian Council was larger than the Legislative Council but had only advisory powers, with no competence over financial matters, and no executive authority. By 1922 the Clifford Constitution came into effect and it abolished the Legislative Council and Nigerian Council. In their place, the Clifford Constitution established a new Legislative Council of 46 members, out of whom 27 were official members, including the Governor. Of the remaining unofficial 19 members 10 of whom were Nigerians, 15 were nominated by the Governor and 4 were elected. The new Legislative Council was empowered to legislate for the peace, order and good government of the Colony of Lagos and the Southern Provinces. The Governor legislated for the Northern Provinces by Proclamation. By 1946, there was another constitution known as the Richards Constitution which abolished the Legislative Council and established in its place a Central Legislative Council with an enlarged membership which featured an unofficial majority. It was composed of the Governor, 16 officials 13 of them ex-officio and 3 nominated, and 28 unofficial members who were either elected or selected through processes laid down in the Richards Constitution. The Council was empowered to make laws for the peace, order and good government of Nigeria, though in practice, the laws were made by the Governor with the consent of the Central Legislative Council. By 1951 the Macpherson Constitution came into effect and abolished the Central Legislative Council and in its place established the House of Representatives. The House of Representatives was composed of the Governor as President, 6 European officials including the Lieutenant Governors, 136 Representatives elected by the Regional Houses 68 by the Northern Region House of Assembly, 34 by the Western Region House of Assembly and 34 by the Eastern Region House of Assembly, and 6 special members appointed by the Governor to represent interests and communities which had inadequate presence in the House of Representatives. The House of Representatives then had no powers over bills relating to public revenue and public service. The Governor was empowered to make laws with the advice and consent of the House of Representatives under the Macpherson Constitution; he was also given reserved powers in areas like public finance, foreign policy, and public service. To maintain the legislative supremacy of the Governor, the House of Representatives was given pseudo-supremacy of vetoing legislation made by the Regional Houses of Assembly. With the clamour for independence, the Lyttelton Constitution came into effect in 1954. The House of Representatives was retained, but this time around the Governor was not presiding. Instead the House of Representatives had a Speaker, 3 ex-officio member, and 184 Representatives elected from the various constituencies in Nigeria. The House of Representatives was empowered to make laws for the country and discuss financial matters. In addition, three legislative lists were created: (i) an Exclusive Legislative List specifying about 68 items on which the House of Representatives had powers to make laws; (ii) a Concurrent List on which the House of Representatives and the Regional Houses of Assembly had concurrent legislative powers; and (iii) a Residual List made up of items on which the Regional Legislatures had the final say. A major observable trend in these constitutions was the obvious piecemeal introduction of the Westminster Parliamentary system of Government. This was completed under the independence Constitution of 1960. The 1960 Constitution established a Parliament made up of a House of Representatives of 320 elected members and a Senate of 44 nominated members, this was in keeping with the practice of the House of Lords in the United Kingdom. Two legislative lists were established – the Exclusive Legislative List of 44 items for the Parliament and the Concurrent Legislative List  consisting of 28 items on which both the Parliament and the Regional Houses of Assembly were empowered to make laws. In addition, the Parliament was conferred with emergency powers. The Republican Constitution of 1963 was not a complete departure from the 1960 Constitution as all the changes it effected were that the Queen of England ceased to be Nigeria’s Head of State as well as sit in the Legislative Houses.  There was military intervention in constitutional and democratic governance between 1966 and 1979 when specifically, the Legislature as an effective arm in the art of governance was suspended or completely abolished. Legislative powers were then exercised by the Military. However, by 1976 the then Military government heeded the call of Nigerians for return to civilian constitutional and democratic governance and thereby commenced the processes of disengaging and returning the country to civilian rule. Accordingly, a Constitution Drafting Committee (CDC) was appointed to review not only the 1963 Constitution but to also look at what other constitutional practices and lessons in other parts of world could be used as input in crafting a constitutional system suited to the Nigerian environment. The CDC  in its deliberations considered that the overarching objective for the Nigerian Constitution should be to provide for “an effective leadership that expresses (the) aspirations (of Nigerians) for national unity without at the same time building up a Leviathan whose powers may be difficult to curb… the need to balance the stakes of politics so that each section … will come to feel a sense of belonging to a great nation; the need to develop an approach of consensus to politics and finally the need to accentuate our national inclination towards a bargaining approach to decision-making rather than regarding politics as a game of the winner-take-all.” (1) On this premise the CDC recommended the departure from the Westminster Parliamentary system of government and the adoption of the American Executive Presidential system of government. Attendant to this recommendation, the CDC felt that “there is a need for a very vigilant legislature. Although the primary function of the legislature is to make laws, as the representatives of the people to whom sovereignty belongs, the legislature must be the protector and the watchdog of the people’s rights against any encroachments from any quarter whatsoever – be such quarters the other branches of government or external interests. That being the case, the functions of the legislature should be seen as including checking, supervising and controlling the Administration.” (2) The CDC, therefore, recommended the establishment of a bicameral National Assembly consisting of the Senate and the House of Representatives, and unicameral legislative Houses of Assembly for the States in the Federation. The Constitution of the Federal Republic of Nigeria 1979 established a bicameral National Assembly as recommended by the CDC and unicameral legislative Houses of Assembly in the States. The National Assembly under the 1979 Constitution did not include members of the executive arm of government as was the case in the previous constitutions. There were 450 elected Representatives and 95 elected Senators. There were two legislative lists (i) Exclusive Legislative List and (ii) Concurrent Legislative List defining the powers of the National Assembly exclusively on Exclusive Legislative List matters and concurrent powers with Houses of Assembly in the States on Concurrent Legislative items. There was yet another military take-over of government in December 1983 when the 1979 Constitution was suspended, the National Assembly abrogated and the military exercised legislative powers by way of promulgating Military Decrees. With time Nigerians again agitated for the return of governance to constitutionally and democratically elected civilians. This saw the appointment of a Constitution Review Committee (CRC) in 1987 to re-examine the 1979 Constitution. The CRC recommended retention of the 1979 Constitutional stipulations and therefore a 1989 Constitution was promulgated which established a National Assembly in the same pattern as was done under the 1979 Constitution. It was under the 1989 Constitution that the still-born and ill-fated June 12, 1992 elections took place. As a result of the aborted June 12 presidential elections, the Military retained power and the continued agitation for the return to democratic rule saw the convening of a Constitutional Conference in 1995. Again the Constitutional Conference retained the pattern established under the 1979 Constitution, namely: a bicameral National Assembly consisting of a Senate and a House of Representatives with exclusive and concurrent legislative powers. But the constitution produced by the Constitutional Conference was not operated as a result of the death of the then Head of State, General Sani Abacha. Following the death of General Abacha, the new military administration led by General Abdulsalami Abubakar commissioned a committee led by Justice Niki Tobi to examine our indigenous efforts at constitution making and make recommendations for a constitution that will enthrone a true constitutional and democratic system of government in Nigeria. The Niki Tobi Constitutional Review Committee went around Nigeria and listened to and received memoranda on the opinion of Nigerians as to what constitutional system is suitable and acceptable to Nigerians. At the end of their exercise the Committee presented its recommendations to the Abdulsalami Abubakar military administration which in turn promulgated the Constitution of the Federal Republic of Nigeria 1999. Under the 1999 Constitution, the practice started under the 1979 Constitution has been continued. There is established a bi-cameral National Assembly consisting of a Senate and House of Representatives.  This time, there is an Exclusive Legislative List of 68 items and a Concurrent List defining the extent of Federal and State Legislative powers. Distinguished and honourable ladies and gentlemen, if you have been counting, you would have noted that Nigeria has had ten written constitutions since the inauguration of the Nigerian nation. You may have also noticed one common feature about these constitutions is that participation of the people, as well as the scope of debate, has always been limited by the colonial or military umpire under which the constitution was produced. Nigerians will recall the expression “no go areas” during the recent debates on our constitution. More seriously, even after the views of the people has been collated and a draft prepared, the Provisional Ruling Council or its earlier equivalents have always felt free to tamper and amend these views on the pretext of abiding by the “public interest of the Nigerian people”. This tends to jeopardize the legitimacy of our constitutions and perhaps explain the clamour for change soon afterwards. In constitution making, the process is just as important as the product. Because, in a democracy, it is the people who have power to give to themselves a constitution. So legally it can be asked, if a military regime has the legal authority to assume the sovereignty of a people in the way they have done by “decreeing” the constitution? Politically it can be argued that, since the consultation has been limited and scope of debate deliberately curtailed then the entire process is lacking in political legitimacy. Even if one concedes the legal ground, it will be difficult to ignore the political question. As Alexander Solzhenitsyn would say “I have spent all my life under communist regime and I will tell you that a society without any objective legal scale is a terrible one indeed. But a society with no other scale but the legal one is not quite worthy of men either.” There are many who will argue that we have not quite arrived at democracy. They will argue that what we have today is civil rule but we are still transiting to democracy. Democracy, to be sure, is not a destination to be reached; rather it is a process to be enthroned and sustained. Political Party formation and registration, elections, parliamentary institutions, free press do not in themselves constitute democracy, nor are these in themselves sufficient to secure it. Rather, democracy requires freedom, not of speech and association only, but also and most importantly, freedom from want. When a people are struggling to survive, when the basic necessities of food, water and health are hard to come by, then freedom of speech and association come a poor third or fourth in their list of priorities. We must appreciate that where poverty abounds, democracy is a luxury. For us to attain democracy, we must address the problems of poverty. For the avoidance of doubt, Nigeria as a nation is far from poor, but its citizens are. Our attempt at poverty eradication or alleviation, as some may prefer, has not come to fruition partly because we have ignored the basic fact that economic development is dependent on a strong political will and appropriate social environment. If political will can come by a change of baton, the appropriate social conditions for economic development cannot be brought about in similar manner, as the process of state formation requires time to coalesce and take shape. Political instability as occasioned by military intervention, in particular, disrupted these social nurturing and stunted our social growth. Ethnic competition has therefore continued to undermine the level of national cohesion which weakens the basis of politics. Thus our political culture, informed as it always is, by our level of social development, has remained a captive of our primordial sentiments and base values. The military background of our political culture which keeps haunting us has tainted our understanding of federalism, as many of us today have difficulties distinguishing unity from uniformity.    Admittedly, it is all too easy to blame the military; it is a lot more difficult to face the challenge. But the challenge we must face for our constituencies have been tantalized for so long. We must not allow them to give up. The relative peace we enjoy today is because our people still have some hope in democracy, the much talked about “democracy dividends”. We must keep this hope alive and work towards realizing it. The signals are indicating that politicians don’t have much time. I must hasten to add that the day this hope is dashed, God forbid, the resulting scenario is best imagined. What then do we do about this? This should be a subject of another paper at another occasion. I thank you for listening.    Footnotes 1. See Reports of the Constitution Drafting Committee, Volume II, (1976) Federal Ministry of Information Printing Division, Lagos at page 67. 2. See ibid. at page 77.