There are three organs of government: the legislature, the executive and the judiciary. According to Montesquieu, these three arms of government are separate and distinct and should function without any interference from the others. Modern governmental practices, however, show the myth and artificiality of the separation of power theory. While the contemporary practice has shown interrelationship and interdependence as imperative, every state has also developed its own degree of fusion or separation of power based on its constitutional framework cum political and administrative conveniences.
In line with the doctrine of separation of powers, the Nigerian constitution divides the powers of the Federal government among the three arms of government in sections 4, 5, and 6 of the Constitution of the Federal Republic of Nigeria, 1999. A body known in Nigeria as the National Assembly exercises the legislative power at the Federal level or House of Assembly at the State level.
Whilst the Houses of Assembly of the various states in Nigeria consist only of one House each (Unicameral system), the National Assembly consists of two Houses namely the Senate and the House of Representatives. This is commonly known as bicameral system of government, i.e. where the legislature consists of two houses, modelled after the British House of Lords and House of Commons, or the United States Senate and House of Representatives. In theory each House acts as a check on the other, prevents hasty or harsh legislations and enforces deliberation and sometimes reconsideration.
The term ‘legislative powers’ can be defined as the law-making powers of a legislative body, whose functions include the power to make, alter, amend and repeal laws. Legislation means the formulation of law by the appropriate organ of the State, in such a manner that the actual words used are themselves part of the law: the words not only contain the law, but in a sense they constitute the law. In essence, the legislature has the power to make laws and such power is reposed exclusively in such body though it may delegate rule making and regulatory powers to departments in the executive branch. It may not, however, delegate its law making powers.
According to Maxwell Gidado, the legislature by its functions is the bulwark of modern day government. This is because the working of the other organs of government, i.e. the Judiciary and the executive and the activities of the other entities in the state are moderated and even controlled by the legislature. “It is the legislature that lays down the basic laws, which the judiciary has to interpret and which the Executive has to apply in the implementation of policies and execution of laws. That is why in a democratic setting the Legislature takes precedence over the other two arms of government, for it represents the sovereign will of the people, in other words, it is the legislature alone that is competent to express the will of the people in form of legislations.
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The above definitions are restrictive as they neither fully cover the essence, functions nor the powers of the legislature. An attempt at defining the legislature in terms of a part of its functions or powers is unsatisfactory and definitely does not suit current legislative research focus. More appropriately, legislature may be defined as ‘the collection of individuals who are elected as members of the formal parliamentary bodies prescribed by national and state constitutions.
According to Arishe, ‘this definition is more satisfactory as it fully describes the composition and legal character of the legislature (representation and prescription by the constitution) while leaving out such elements like the functions and powers of the legislature which formed the basis of some criticisms about the proper role of the legislature’. Therefore, it may be safe to restrict the definition of the legislature to an assembly which arose as an instrument of representative government; or, representative assembly of elected members from constituencies that makes a branch of government in the state.
Section 4 provides for the legislative powers of the Federal Republic of Nigeria. While the legislative powers of the government of the Federation are vested in the National Assembly, the legislative powers of the State governments are vested in the House of Assembly of a State. The Section is in two parts. Section 4(1) to 4 provides for legislative powers of the National Assembly while Section 4(6) and (7) provides for the legislative powers of the House of Assembly of a State.
Section 4(5) seems to be hybrid provision as it provides for the legislative powers of both the National Assembly and the House of Assembly of a State. That is the subsection, which provides for the doctrine of covering the field. By Subsection (3) of Section 4, all the legislative powers for the peace, order and good government of the Federation in respect of any matter included in the Exclusive Legislative List are vested in the National Assembly.
By Subsection (4) of Section 4, any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to the extent prescribed in the second column opposite thereto, is vested in the National Assembly. By Section 4(7) the House of Assembly of a State has power to make laws for the peace, order and good government of the State with respect to (a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution; (b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to the Constitution to the extent prescribed in the second column thereto. Both Section 4(4)(b) and Section 4(7)(b) make omnibus provision for legislative powers of the National Assembly and House of Assembly of a State respectively.
Since we are now operating under the rule of law and strict separation of powers, where there is doubt or controversy about what constitutes ‘peace’, ‘order’ and ‘good governance’(subject to political question doctrine) is a matter for judicial interpretation, and such interpretation is final.
This supervisory powers of the Courts over the legislature is confirmed in Section 4(8) as follows: Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly shall be subject to the jurisdiction of the courts of law and of judicial tribunals established by law and accordingly, the National Assembly or a House of Assembly shall not enact any law, that oust or purports to oust the jurisdiction of a Court of Law or of a judicial tribunal established by law.
It is important to stress that the National Assembly’s powers to make laws for the Peace, Order and Good Government, are limited to matters contained in the Exclusive Legislative List. It cannot be extended as in military dictatorships, to ‘any part thereof with respect to any matter whatsoever.
According to Professor Nwabueze, ‘The phrase ‘peace, order and good government’ does not delimit the purpose for which the power is granted, in the sense that a law must be for peace, order and good government in order to be valid. It is simply, as the Judicial Committee of the Privy Council has held, a legal formula for expressing the widest plentitude of legislative power exercisable by a sovereign legislature, subject to limitations arising from the divisions of powers between a central and regional governments in a federal system such as Nigeria.
Furthermore, the National Assembly can exercise the power of conducting investigation for the purpose of enabling it to make law or to expose corruption, inefficiency in the disbursement or administration of funds appropriated by it. Section 88 (2) (a) (b) further provides that the power conferred on the national assembly to conduct investigation are only exercisable for the purpose of enabling it to make laws with respect to any matter within its legislative competence to correct any defects in existing laws and to expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it. It follows therefore that the National Assembly can only conduct investigation into areas where it has competence to make laws and that such investigations should strictly be for the purpose of making laws.