Law-Making in Nigeria PDF

**LAW-MAKING IN NIGERIA** **1.1 The Constitution as Fountain of all Laws** Any discussion on law-making in Nigeria should as a matter of necessity commence with the constitution. A constitution is the basic or organic law of the land. It is the supreme law of the land from which all other laws der...

**LAW-MAKING IN NIGERIA** **1.1 The Constitution as Fountain of all Laws** Any discussion on law-making in Nigeria should as a matter of necessity commence with the constitution. A constitution is the basic or organic law of the land. It is the supreme law of the land from which all other laws derive their validity. It is the grundnorm. The constitution establishes and provides for the powers of the three arms of government. It also establishes the other institutions of government and vests them with their respective powers and functions. The 1999 Constitution of the Federal Republic of Nigeria (as amended) is, therefore, the organic, basic and supreme law of the land from which all other laws derive their validity. By virtue of section 1(3) of the 1999 Constitution, any law inconsistent with the provisions of the Constitution shall, to the extent of the inconsistency, be void. This means that any law made in Nigeria that goes against the provisions of the 1999 Constitution shall be of no effect whatsoever. All Acts of the National Assembly and all Laws of the State Houses of Assembly derive their validity from the Constitution which expressly establishes them and confers on them their law-making powers. **2.1 Legislation** The word 'legislation' refers to a piece of law enacted by the body or institution vested with the power to make laws in a state or country. They are laws enacted by the legislative arm of government in accordance with powers conferred on them by the constitution. Legislation is regarded as the most important instrument of legal development. This is because they are the easiest means of effecting changes in the law to meet the moral, social, economic and political needs of the society at any given time. They have the potential to affect other sources of law because it could be used to change or alter them. Legislation could therefore be said to mirror or reflect the aspirations of the society in which and for which they are enacted. A major feature of legislation is that they are written or codified. At the Federal level, they are codified in volumes as the Laws of the Federation, 2004. At the state level, they are codified in volumes and called the Laws of the state concerned, for example, the Laws of Akwa Ibom State, 2000. They are given different nomenclatures depending on the type and level of government that enacted them. Under civilian administration in Nigeria, they include Acts of the National Assembly, Laws of the State Houses of Assembly and Bye-laws of local governments. Under military regimes, they were called Decrees at the Federal level and Edicts at the state level. Before the return of democratic rule in 1999 when Nigeria was ruled by the military, the Federal Military Government promulgated and ruled by Decrees, while the State Military Governments promulgated and ruled by Edicts. Upon the return to civil rule in 1999, Decrees of the Federal Military Government were re-designated Acts of the National Assembly, while Edicts of the respective states were re-designated Laws of the States. **3.1 The Law-Making Process in the National Assembly** In order to understand how laws are made in Nigeria, it is important to understand that there are three arms of government -- the legislature, the executive and the judiciary. The legislature makes laws, the executive executes or implements laws, while the judiciary interprets the law and adjudicates disputes. Nigeria is a federation comprising 36 states and the Federal Capital Territory, Abuja. As a federation, legislative powers are shared under the 1999 Constitution between the federal and state governments. This means that while the federal legislature is vested with the power of making laws for the whole country, the state legislatures are vested with the power of making laws for the respective states. The law-making powers of the Federal Government is vested in the National Assembly (comprising of the Senate and the House of Representatives), while the law-making power of the state is vested in the State House of Assembly. It is important to state from the onset that the process of law-making is the same for both the national Assembly and the State House of Assembly. Laws made by the National Assembly are called Acts while laws passed by the State Houses of Assembly are called Laws of the states. Laws made by the local government authorities are called Bye-laws. It is important to include here that under military rule in Nigeria, the military also made laws at both the federal and state levels. Laws made by the Federal Military Government were called Decrees, while those promulgated by the State Military Government were called Edicts. **3.1.1 Bills** The starting point in the law-making process is the bill. A bill is a proposed law sent to the legislature with the intention that it will be passed into law. It is a draft of a proposed law that is presented before a Legislative House for deliberation and consideration. It is a legislative proposal and the first step in making a new law. A bill is drafted by the person who wishes it to be passed into law and introduced into the law-making body which could be the National Assembly or a state House of Assembly. Anybody could draft a bill but only a member of the legislature can introduce it on the floor of the house. Bills are classified into two broad categories -- executive bills and private member bills. An executive bill is a bill introduced into the legislature by a member of the executive arm of government such as the President or Governor. It is also called a 'public bill' or 'government bill'. A private member bill is one introduced into the legislature by a member of the legislature. A bill can also originate from a private citizen. In that case, it is only a member of the legislature that can introduce the bill on the floor of the legislative house for consideration. At the federal level, for a bill to become a law, it must be passed in identical form by both the Senate and the House of Representatives and then assented to by the President. At the state level, it must be passed by the State House of Assembly and assented to by the Governor. Upon receiving the assent of the President, the newly passed law becomes an Act of the National Assembly, and upon receiving the Governors assent, the law newly passed by the State House of Assembly becomes a Law of the State. Once a Bill is received in either House of the National Assembly, the President of the Senate or Speaker of the House of Representatives forwards it to the Rules and Business Committee for the House of Representatives or the Committee on the Rules and Procedures for the Senate to determine its suitability or otherwise for legislative action. Where defects are noticed in the Bill, the Bill is forwarded to the legal department of the National Assembly for clean-up, re-drafting and any other further amendments that need to be made it to make it suitable for legislative consideration. The Rules and Business Committee of either chamber is also expected to determine the day and the time a bill is to be tabled before\ plenary for further legislative process. **3.1.2 The Stages** Bills are read three times by the National Assembly before they are passed (although a number of procedures take places within these three stages of the Bill process). At the First Reading, the Clerk of the Senate/House usually does the reading of the Bills i.e. the Clerk reads the short title of the bill and then proceeds to 'table' it before the President of the Senate of the Speaker of the House of Representatives as the case may be. There is no debate or discussion on the bill on the floor of the Senate or House of Representatives as the stage is to simply inform legislators that a particular bill has been introduced for legislative consideration. The Second Reading marks the beginning of the debate on the general principles of the bill. For a bill to be read the second time, a motion must be moved to that effect. The legislator moving the motion is expected to highlight the subject\ matter, objectives, benefits, and general principles of the bill if it is eventually passed into law. Other members may also signify their intention to speak on the bill. If it is an Executive Bill, the debate commences with a motion by the Senate or House Leader that the bill be read the second time. The motion must be seconded (supported) by any of the other parties' leader. However, if the bill is one initiated by a legislator, the sponsor of the bill will move the motion that the bill be read the second time, which must be seconded (i.e. supported) by another legislator in the chamber where it is being read. If the motion is not seconded, the bill cannot proceed to second reading and therefore will be rejected at that point. After the bill is debated, it is put to a vote on whether it moves to the next stage which is the Committee Stage. If the bill has the support of the majority, it moves to the Committee Stage; if it does not, it cannot be discussed again until it is re-introduced at a later stage. If it is referred to the Committee Stage, the Senate President or Speaker of the House is empowered by the relevant rules of either the Senate or the House to determine the relevant Committee(s) to which the bill is to be referred. Referring a Bill to a Committee at the second reading stage is geared towards value addition and further input by critical stakeholders and the public who can make useful contributions to the Bill (e.g. during public hearing). The House and the Senate have different types of Committees. The first one is the Committee of the Whole House (made up of all legislators during plenary) and the second is the Standing Committees on specific subject areas (e.g. Committee on Health, Committee on Education, Committee on Judiciary, etc.). The Committees are to make input to a bill after its referral at the second reading stage. Nonetheless, all amendments made on the bill must be in line with the general principles of the bill. Where a bill has to do with multiple subjects cutting across different Standing Committees, it is referred to the Standing Committee that has the dominant issue while others will form subcommittees to consider areas that concern them and report to the main Committee. It will then be the responsibility of the main Committee to collate and aggregate all suggestions and amendments of the "Sub-committees" and make a full report to the Senate or House. Likewise, where the leadership does not mention the lead Committee to examine a bill, the first committee mentioned by the Senate President or Speaker assumes leadership of the bill referred for further legislative input. After the Committee has concluded its work, it will report back to the Whole Senate or House in plenary with or without amendments. The Chairperson of the Committee is expected to report progress on the bill through a motion. After the report of the Committee and the deliberation of the Committee of the Whole Senate or House, a motion may be moved that the bill proceed to Third Reading. Generally, once the bill has passed the third reading stage, no amendment can be made to it anymore. However, in certain circumstances if a legislator wishes to suggest an amendment, he must move a motion that the bill be 're-committed' to the Committee Stage for the purpose of including the amendment. If the motion is agreed upon, the Senate or House will dissolve at plenary to discuss the amendment(s). After all necessary amendments, the Senate/House will then proceed to third reading and passage. After a bill has scaled the third reading stage and has been passed, a clean printed\ copy of it, incorporating all amendments will be produced, signed by the Clerk and endorsed by the Senate President or Speaker of the House of Representatives. The copy will then be forwarded to the Clerk of the Senate or House as the case may be accompanied with a message requiring the concurrence of the receiving chamber. **3.1.3 Conference, Presidential Assent and Veto** Where there is any disagreement or there are different provisions between the two Chambers on a bill, a Conference Committee is constituted between the two chambers of the National Assembly to harmonize their positions and reconcile the differences in an agreed copy. The Conference Committee is convened with a distinct mandate -- to harmonise the positions of both chambers on the disputed recommendations/amendments. The outcome\ is a report of a Joint Conference Committee, which is presented in both chambers for consideration. If both chambers adopt the report, the bill is sent to the Clerk of the originating chamber, and a clean copy of the Bill is sent to the Clerk of the National Assembly for enrolment and onward transmission to the President for his assent. The President has thirty (30) days within which to sign a bill sent to him by the National Assembly. Note that a bill only becomes law after it has been assented to by the President. The President may veto the bill if he disagrees with its provisions or some aspects of it, by withholding his signature. When this happens, the President can state the areas he wants amended before he signs the bill. If the National Assembly agrees with the President, the bill can be withdrawn for deliberation on the amendments suggested by the President. If the amendments are agreed to, it is forwarded to the President who then assents to it. The President is also empowered under the Constitution to veto the bill if the National Assembly is not willing to make the amendments suggested by the President. If the National Assembly does not agree with the veto, it is\ empowered to overrule the President's veto as prescribed in section 58(5) of the 1999 Constitution (as amended). Section 58(5) states that if the bill is again passed by each House by two-thirds majority, the bill shall become law and the assent of the President is not needed. **3.1.4 Exceptions to the General Bill Process** Lastly, it should be noted that there are exceptions to the general bill process. For instance, where urgent state matters deserve legislative action or consideration, bills may be speedily passed by suspending the rules of legislative procedure to meet up with the objectives of the issues at hand. This is possible because the Constitution grants the National Assembly powers to regulate its own proceedings. **4.1 Delegated Legislation** Before discussing the concept of delegated legislation, it is important to point out that in accordance with the principle of separation of powers the power to make laws is that of the legislature. The execute arm of government implements the laws while the judicial arm interprets the laws and adjudicates disputes based on the law. But it is impossible for the legislature to make all laws and rules needed to ensure effective running of the sub-systems of a country. This is where delegated legislation becomes of crucial importance. Delegated legislation refers to laws made by an administrative authority, public authority or agency to which the constitution or any other enabling statute has given power to make laws. Authorities or agencies to which law-making power could be delegated include ministries, local governments, public corporations, courts and so on. Delegated legislation is also known as executive legislation, administrative legislation, or subordinate subsidiary legislation. The law from which authority is derived to make delegated legislation is known as the enabling law or statute. **4.2 Types of Delegated Legislation** 1. **Regulations:** These are rules made by authorities other than law-making authorities such as ministers and commissioners. The powers to make these rules are conferred by an enabling statute. 2. **Bye Laws:** These are laws made by local governments, ministries, and public corporations such as NTA, NCAA, NPA, etc. in accordance with powers conferred on them through relevant Acts of the National Assembly. 3. **Rules of Professional Bodies:** These are rules and ethics guiding the activities of professional bodies e.g. NBA, NMA, ANAN, CIBN, etc. which are constitutionally legal and binding on members. 4. **Provisional Order:** This is a temporary power given to a minister to run an undertaking until it is ratified by the parliament. 5. **Rules of Court:** These are rules made by heads of the various courts providing for the procedures for doing various acts in those courts. **4.3 Merits of Delegated Legislation** The following are some of the benefits of delegated legislation to modern governments: 1. It brings government closer to the people when relevant legislations are delegated to administrators at the centres of primary needs. 2. Delegated legislation fosters efficiency and effectiveness in governance. Through it, time cost and the delays involved in passing bills into laws are avoided. 3. Workload of Parliament is reduced through delegated legislation and this reduces the burden and burnout that may result through heavy legislative tasks. 4. It enables experts to legislate on technical matters: Matters requiring expertise are better left to persons who are experts in the field. Jargons or technical terms used in such fields which may be cumbersome for parliament are better handled through delegated legislation. 5. It helps parliaments to save time and energy for other important legislation. 6. Emergency situations are better handled through delegated legislation. **4.4 The Need to Control the Practice of Delegated Legislation** It is important to control the way delegated legislation is exercised so as to effectively achieve their objectives and goals. Such control will make officials accountable for their conducts. It will also prevent the emergence of unreasonable laws, autocracy and undue highjack of the powers of the legislature. In view of these, there are a number of control centres and methods for regulating delegated delegation. **4.4.1 Control of Delegated Legislation** 1. Parliamentary Control: There are standing committees in the parliament covering almost every sector so that any statutory instrument emanating from beneficiaries of delegated legislation are well scrutinized. The parliament critique or rejects Bills made by such bodies before they become laws. 2. Judicial Control: The court of law has the power to review laws made by organizations in order to ensure they are in agreement with the constitution. In the process of adjudication, some order, law or regulation may be declared unconstitutional, null and void and set aside. 3. Ministerial Control: Ministries, departments, agencies and public corporations are under the purview of ministers who have the power to scrutinize by-laws, rules or regulations made by them. So, the minister can approve or disapprove laws made by ministries, departments and agencies under him. 4. Public Opinion: The critical opinion held by the public in a given society towards a public organization is also a way of controlling the excesses in the exercise of delegated legislation. Such opinion could be expressed through such means as protest, boycott, mass media, the press, and so on. 5. Financial Control: Government may withhold the disbursement of fund to a public organization as a means of controlling their exercise of delegated legislation.