Femi Falana (SAN) is a rights advocate and defender of democracy. In this interview with ABIODUN FANORO, he wants the legislature to concentrate more on its area of authority, lawmaking, while urging the executive to also operate within the limits provided by law.
After 13 years of democracy how much of rapport do you expect between the Executive and the Legislature?
WE have always had face-offs between the Executive and the National Assembly. It has been the case since 1999. Under the Olusegun Obasanjo administration, the National Assembly played into the hands of the Executive. The Presidency exploited that to plot the removal and replacement of the leaders of both chambers. But with time, the National Assembly has asserted its autonomy. It is such legislative independence that is responsible for the increasing face-off between both arms of the government.
Do you think the passage of a budget should always bring about acrimony between the two arms?
The issues involved have to be examined from time to time. Since 1999 the passing of the budget has always been a bone of contention. On a number of occasions, the legislators awarded themselves jumbo pay, while passing the budget even when it is common knowledge that it is the exclusive responsibility of the Revenue and Allocation Mobilisation Fiscal Commission (RAMFC) to fix the salaries and allowances of legislators by virtue of section 70 of the Constitution.
Another area of disagreement pertains to inclusion of constituency projects in the budget. Invariably, the President signs the budget bill into law as the legislature has always had its way. However, the National Assembly cannot be faulted over the insistence that the budget be fully implemented. Neither can you dismiss many resolutions, which are passed on the state of the nation. But I have serious disagreement over the belated resolution passed on Bakassi after Nigeria had ceded the island to Cameroon. The ruling of the International Court of Justice was delivered ten years ago; the Green Tree Agreement was signed in 2006, while the island was handed over to Cameroon by Nigeria in 2008. The National Assembly suddenly woke up from a deep slumber and decided to pass a resolution two weeks to the deadline in order to challenge the 10-year ruling by way of review. It was too late in the day to cry over split milk.
In July legislators in the Lower House threatened to impeach President Jonathan, even as it appeared there were no serious grounds for such. Do you think that’s the correct attitude?
The National Assembly has to be more circumspect in invoking the impeachment powers; otherwise, Nigerians would always dismiss it as a red herring. But that is not to say that the offences listed in the impeachment notice are not weighty enough to send shivers down the spines of the Executive.
Unlike when President Obasanjo was seriously threatened with impeachment by the House of Representatives, this time around, they appear not to have set out to embarrass President Jonathan. Hence the threat has fizzled out. Ab initio, it was not designed to be a serious legislative business. The way the impeachment threat was quietly dropped should have made it clear to the legislators that the power of impeachment should be sparingly invoked or exercised.
Do you think the NASS is properly focused on its primary duties with its many probes and oversight roles?
Instead of wasting precious time, energies and resources on exercising oversight functions the National Assembly should strengthen the relevant institutions to perform their statutory duties. For instance, consider the rigmarole over the fuel subsidy scam. Since the report of investigation would be forwarded to the EFCC eventually, why should the Senate and the House probe the fraud? Why not pass a resolution asking the anti-graft agencies to inquire into the scam and turn in a report? The House probed the fuel subsidy scam. The executive set up two panels on the scam. The Senate is still probing it. The EFCC is investigating it and charging suspects to court. All the anti-graft agencies have set up a joint committee on the scam. The Minister of Petroleum Resources has set up three or four committees on related matters. At the end of the day the nation may end up spending more money on conducting probes.
For goodness sake why is the House probing Malabo oil deal when the ICPC is more equipped to look into allegations of official corruption? Ditto for cases of flood, killing of students, terrorism and other matters that have occupied the attention of the National Assembly in recent time. You don’t need to waste scarce resources on many probes whose reports will be handed over to EFCC, ICPC or the Police for further investigation and prosecution. Why does the Senate have to waste time on investigating oil pollution or oil spill instead of asking NOSDRA to carry out its statutory duty in the circumstance? These probes are making a mockery of legislative powers and duties. Hence its all probes while the legislators hardly pass laws these days.
There are feelings that a lot of the hot air is either influenced by mischief or engineered for political gains.
Power is generally subject to abuse. It is worse in a neo-colonial society where there is corruption and abuse of office and where the rule of law is twisted and bent for the ruling class. So you cannot rule out witch hunting by the legislature, the executive or even the judiciary. But that is why the system has provided for checks and balances. With public hearing on crucial national issues the National Assembly has curbed the excesses of some power mongers among its members.
Implementation of budgets is usually problematic; why is that so?
On budget implementation we must avoid generalisation. Usually, the recurrent provisions of the budget are fully implemented. In other words salaries, allowances and estacodes are paid. Even loans are taken to maintain an unproductive, over bloated and parasitic bureaucracy. But when it comes to the capital expenditure, there is always a crisis of implementation. In other words there is no money to maintain roads, fix hospitals or create jobs for millions of unemployed youths.
Unfortunately, the issue of complying with the appropriation laws has been left for the National Assembly to deal with. Not even the Nigerian Bar Association has paid any serious attention to the violation of the appropriation laws at the federal, state and local governments.
Recently, information minister, Labaran Maku was summoned by the NASS for what the legislators referred to as inappropriate talk. Is the NASS in order?
No doubt the National Assembly is empowered to summon ministers and any other person in the course of conducting inquiries. On many occasions the power has been exercised to massage the ego of legislators. There was a time the CBN governor was summoned over a comment made by him at a university campus. The legislators felt embarrassed by the statement. Instead of issuing a rejoinder both houses summoned the governor and subjected him to a mock trial. That was a reckless abuse of legislative powers.
When is it appropriate for NASS to pass resolutions?
There are two types of resolutions, which the National Assembly can pass. One is binding, while the other one is generally not binding. Even resolutions that are normally passed on the state of the nation may be enforced by the Executive. For example, the resolution on the doctrine of necessity was fully implemented by the Executive, even though it was not binding stricto sensu. But resolutions emanating from investigations conducted pursuant to sections 68 and 69 of the Constitution are binding. In the course of such investigations the committee of either chambers can order anyone to appear before it or produce any document. Failure to obey the summons may lead to the arrest of a contemnor.
But the resolutions of the National Assembly have been ignored because they have been directed at wrong quarters. Why dump such resolutions or reports in the Presidency? Why not simply ask the EFCC, ICPC or the Police to prosecute those who are indicted in probes. Let the head of such institutions tell Nigerians why official corruption is going to be covered up or swept under the carpet. In some cases the National Assembly should file cases in court to enforce certain aspects of its report. But I strongly believe that if both the Executive and the Legislature are prepared to deepen the democratic process, such resolutions should not be treated with disdain.
Some have called for a reduction in the cost of governance by pruning the size of the NASS. Perhaps, make it unicameral. Will that help?
The call has to do with the demand for reduction in cost of governance. It is not about abolishing the Senate or the House of Representatives. A strong case has been made for a unicameral legislature, like what obtains in some countries. Even in the United States, the Vice-President presides over the Senate. But here we have the senate president, deputy senate president and three senators per state. We have the speaker, deputy and 358 other members of the House of Representatives. Under the Constitution, lawmaking is part time. Legislators are required to sit for not less than 181 days or six months. But it has been turned to a full time business. We must quickly address the mounting costs of governance so that funds can be channeled to address issues of underdevelopment. A national assembly of six members per state is ideal for the nation.