THE DETERMINING FACTORS THAT STIMULATES LEGISLATION IN A DEMOCRACY

THE DETERMINING FACTORS THAT STIMULATES LEGISLATION IN A DEMOCRACY

BY
Mu’azu M. Yusif
Department of Political Science
Bayero University,
Kano

Introduction
The topic given to me by organisers of this workshop is “the Determining Factors that Stimulates States’ Legislation, Government Policies and Implementation”. The title appears too wild and ambitious because it seeks to address both law making by the legislature and policy formulation and implementation by the Executive Arm of Government as one single process. Indeed, in an ideal democracy the two must be separated. Otherwise democracy practice would be truncated. There is no doubt that as Akpan noted, “policy is a form of law made by the government or governing bodies of organisation to govern, direct, control and regulate members of the organisation” (Martin Harrop, 1992:26). A policy may take a legal form of law passed by the legislature or it may only be a decision of a government cabinet or board of directors of a public corporation or institutions issued by departmental authorities.

That is why in Nigeria today as in any democratic setting there is a legislature which is distinct in its constitutional responsibilities from the Executive. The former makes the law. However, the procedure of initiating a law is either from the government (public bill) or from a member of the House (private bill). The Executive implements the law. Just like making a law by the legislature takes a long process, the implementation also does. Because the Executive has to define the provisions of the law, set the goal to be achieved, and evaluate what may be the outcome when implemented. This process normally causes friction between the legislature and the Executive.

As this is a gathering of members of House of Assembly, a House of law makers. I have slightly changed the topic to read as “the determining factor that stimulates legislation in a democracy”. I have done this with due respect of the organisers of this workshop and in order not to engage my audience into diversions on the responsibilities of the Executive Arm of Government.

Powers of the Legislature in a Democracy
In modern society whether democratic or not democratic legislative Acts are made for the governance of the society. You may recall that during the long period of military rule in Nigeria there was the supreme military council. It was the law making organ of the government. When Babangida’s government came in the name was changed to Armed Forces Ruling Council Performing the same function of law making. In a democracy it is simply the legislature.

What is democracy? Controversies abound the concept of democracy. I do not intend to take you through these controversies. However, the most popular conception in the current discourse on democracy is liberal democracy. One important element of this form of democracy is political competition whose most common form has been the competition of political parties (Alan Hunt, 1980: 16). Political competition plays a decisive role in modern liberal democracy because it gives opportunities for other political groups to take over state power. In a more elaborate discussions on democracy it is seen as “a meaningful and extensive competition among individuals and organised groups (especially political parties) for all effective position of government power at regular intervals and excluding the use of force; a highly inclusive level of political participation in the selection of leaders and policies; at least through regular and fair elections, such that no major social group is excluded; and a level of civil and political liberties-freedom of expression, freedom of the press, freedom to form and join organisations sufficient to ensure the integrity of political competition and participation” (Diamond, Linz, and Lipset, 1988: xvi).

In the above passage the meaning of democracy is brought out. The Constitution of the Federal Republic of Nigeria 1999 has provided for all these for democratic governance of Nigeria. One of these provisions is the National Assembly and the state Assembly. These constitute the legislative Arms of Government at Federal and State levels respectively. The National Assembly is the supreme law making organ of the land. It is divided into two (the senate and the House of Representatives).

The constitution has vested on the National Assembly it the power to make laws for the peace, order and good government of the federation. These powers are spelt out in section 4 of the second schedule of the constitution under the title exclusive legislative list. There are about 66 items in this list over which the federal legislature has exclusive jurisdiction. Additional powers are also granted it to make laws on the 30 items under the concurrent list (part II of second schedule). This power, however, is shared with the state assembly, but in the event of conflict between a state and federal law the later prevails.

One very good example of the power of the National Assembly and the State House of Assembly is on the approval and monitoring of the budget of the Federal Government by the National Assembly and of the state by the state Assembly. Accordingly both Executive and judiciary depend on the legislature to consider, amend, alter and approved their budgets. Even the implementation of the budget passed must be monitored and investigated by the legislature. As no public fund can be spent on any purpose other than those prescribed by the legislature. The power of investigation is one of the most potent powers of the legislature. The constitution of the Federal Republic of Nigeria 1999 empowers each House to investigate on “any matter with respect to which it has power to make laws”. This include the conduct of affairs of any person (including the President or Governor of a State), authority, Ministry or Government department charged with or intended to be charged with the duty of or responsibility for administering law, enacted by the National Assembly/State Assembly and disbursing or administering moneys appropriated or to be appropriated by the legislature.

However, the legislature cannot make any law that is inconsistent with the provisions of the constitution. Again, the legislature must respect the judiciary by not passing laws on issues which a court of law or judicial Tribunal is already considering.

The Economy, Politics and the Legislature
Members of the National and State Assembly are directly elected by the people to represent them. So, they are in the legislative Houses on behalf of their people. The country is divided into constituencies for that purpose. There are senatorial constituencies, National House of Representatives constituencies and State Assembly Constituencies.

When the constitution of the Federal Republic of Nigeria 1999 was being processed to be promulgated into law by the then Military regimes (Abacha and Abdussalam) there was cry from the public to make provision of an independent candidate. By an independent candidate it means any citizen of Nigeria who does not want go with any political party can stand for an election under his/her own election programme and manifesto. This is refused to be incorporated into the constitution. Therefore, any body that would stand for elections must be fielded by a political party. So, all of you here are members of political parties. I understand that majority of you in Kano State House of Assembly are members of ANPP while some very few seats are PDP.

It is now possible to understand more clearly what factors could determine law making functions of the legislature in a democracy. First and foremost (as we can see from the discussion above) is the constitution of the Federal Republic of Nigeria 1999. The constitution specifies the areas which both the National Assembly and the state Assembly can make law on. It also provides what the legislature cannot do. The second most important factor is the party manifesto of the ruling party and of elected members of the legislature. This is because both the government and the legislators are theoretically elected on the basis and promises of their party manifestoes.

In addition to ones mentioned above others are the economy, the polity, the civil society and the political orientation and dispositions of members of the House. The economy of the society, its growth and relationships tell a lot about the progress society made and the development of the people of the society. The working of economy is very complex. It may show favourable growth today and tomorrow it goes into crisis and slow growth. But I think a creative leadership guided by certain principles can be able to take the right decision to manage the economy very well. Then the policy. Fortunately we are talking about legislative roles in a democracy. In the spirit of democracy, members of the legislative bodies should create ways and methods of interactions and meetings with the people they represent so they could know their feelings, problems and needs, which could be channelled through a legislative process to solve their problems. This brings us to the next factor, that of the civil society. I do not intend to carry you into the discourse on the civil society. In a simple terminology the civil society is that of the society not of the state. They include virtually any organisational endeavour e.g. all private agencies, non-governmental organisations, business and philanthropic concerns which originate outside of the state sector. The civil society is a powerful engine for democracy and so in order to move our democratic practices forward the law makers should be encouraged to work together with the civil society. It is said that any democracy that does not recognise civil society is bound to fail. Finally, individual members of the National and State Assembly should be people of integrity with principled political orientation and nationalist feeling to move this country out of corruption, ethnic trivialities, increasing foreign control of the economy etc.

Problems encountered by the Legislature while making Law
The legislature is the life wire of democratic governance in modern political system. It is only in a democracy the legislative arm of government is specially institutionalised to check the powers of the Executive and Judiciary and to show to the people that they are represented in every action of the government. Thus it is imperative in the logic of democratic politics that the legislature is allowed to operate with maximum freedom. Otherwise not really a democracy could be seen as in the case of Nigeria in Obasanjo’s first term.

One of the major problems of law making in this period is an excessive executive intervention in the affairs of the National Assembly. Events have shown deliberate intention on the part of the presidency to continually pressure the National Assembly with a view to making the National Assembly does only what the executive wants. If the National Assembly seeks to amend, review or advice the president that is confrontational. So throughout the period was an unhealthy relationship between the two arms of government (Legislature and Executive). This resulted in increasingly anti-democratic and authoritarian manifestations in the political system which in turn affects the performance of the National Assembly for lack of support and cooperation from the entire apparatuses of the executive, especially for providing data which the law makers could use to find the numerous solutions to Nigeria’s economic problems.

Conclusion
In closing, it may be said that much of the expectations about the welfare and development of the citizens of Nigeria depends on the Legislative Arms of the Governments at the centre and at state level. In order to meet the aspirations of the people and promote the spirit of democracy in the country the law making bodies must adhere to principles of separation of powers between the legislative and executive arms of government. The two arms are to cooperate only on interest of the people.

References
Alan Hunt (ed) 1980: Marxism and Democracy, Lawrence and Wishant, New Jersey

Diamond L., Linz J. J., Lipset S. M. (ed) 1988: Democracy in Developing Countries, Volume Two Africa, Boulder Lynne Riener

Federal Republic of Nigeria: The Constitution for the Federal Republic of Nigeria 1999

Martin Harrop (1992): Power and Policy in Liberal Democracies, Cambridge University Press, London