In the past few weeks, Nigerians have been presented with what looked like a new controversy about the National Assembly. Over the years, especially since the return of democracy to Nigeria in 1999, the National Assembly has always been in the eye of the storm.
Indeed, the Legislature in Nigeria was the major casualty of military administration and Nigerians have been used to and associated with the Executive and Judicial arms of government.
The return of the National Assembly in 1999 as the representatives of the people and as an arm of the government presented new challenge to the understanding of the working of a democratic system to some people.
While the Legislature faced the bullying and intimidation of the Executive which has been trying to come to terms as to why its activities must be scrutinized by the legislature, some Nigerians based on their wrong and negative perception of the legislature as presented to them by media controlled by the Executive arm of government, intended to consider everything done by the legislators as self-serving.
This conflict is yet to resolve even after over twenty two years of our current democracy. The current debate over the status and appointment made by the National Assembly Service Commission is another attempt to draw the public to the bureaucratic setting of the National Assembly. Not long ago, the media fed Nigerians with the issue of tenure elongation in the National Assembly, painting a picture of abnormality in the Nigerian public service, yet, many establishments in the same system have increased their years in service and the media did not make noise about them neither did we see hired protesters anywhere on the streets of Abuja.
The new debate not only attempts to interrogate the power of the National Assembly Service Commission to appoint Secretaries who are considered be of equivalent status with Permanent Secretaries in the Nigerian Federal Civil Service, but also questions the rationale for establishing the National Assembly Service Commission itself.
The first question to answer is whether the National Assembly is an arm of government or a department under the Head of the Civil Service of the Federation or even an agency of government? What is the Constitutional authority empowering the operations of the National Assembly? A Legal expert on legislative matters Emmanuel Anyaegbunam had clearly stated that the National Assembly is an arm of government which does not need the supervision of the Office of the Head of the civil Service of the Federation. He had stated that the legislative competence of the National Assembly to conduct its own affairs as an arm of government is captured by section 4(1) of the 1999 Constitution.
It simply expressed the widest plenitude of legislative powers exercisable by a sovereign legislature. The Supreme Court affirmed this position of the law in the case of Attorney General of Ondo State v. Attorney General of the Federation & Ors thus; ‘’By virtue of section 4(1) of the 1999 Constitution, the power to legislate for the Federal Republic of Nigeria is vested in the National Assembly, to wit: the Senate and the House of Representatives. Section 4(2) empowers the National Assembly to make laws for the peace, order and good government of the Federation or any part therefore with respect to any matter included in the Exclusive legislative list which is set out in part 1 of the Second Schedule to the Constitution. [2002] 9 NWLR Pf. 722P. 242’’.
The Constitution specifically mandated the National Assembly to legislate for its bureaucracy vide section 51 that: ‘’There shall be Clerk to the National Assembly and such other staff as may be prescribed by an Act of the National Assembly, and the method of appointment of the Clerk and other staff of the National Assembly shall be as prescribed by that Act’’. The Act specified by the above provision, is the National Assembly Service Act. A settled position of the law consolidated by section 318(1) of the Constitution which states: “Public service of the Federation” means the service of the Federation in any capacity in respect of the government of the federation, and includes service as;a) Clerk or other staff of the National Assembly or of each House of the National Assembly.
The National Assembly Service Act, 2014 Act No. 3 categorically state: ‘’An Act to repeal the National Assembly Service Commission Act Cap. N7 Laws of the Federation of Nigeria, 2004 To Reorganise The Management And Administrative Structure Of The National Assembly For Improved Service Delivery And For Related Matters’’. It is pertinent to consider the functions of this Commission as contained in section 6(1) – (2) of the Act:1. The Commission shall;a. Formulate and implement guidelines for its functions;b. Appoint persons to hold or act in the offices of;i. The Clerk to the National Assemblyii. The Deputy Clerk to the National Assembly iii. The Clerk of the Senate iv. The Clerk of the House of Representativesv. The Deputy Clerk of the Senatevi. The Deputy Clerk of the House of Representativesvii. Secretaries to the Directorates and viii. Holders of other offices that shall be created by the commission on the recommendation of the Clerk to the National Assembly.2. The Commission may;a. Make appointments on promotion and transfer and confirm such appointments; and b. Dismiss and exercise disciplinary control over persons holding or acting in such offices.It is beyond dispute that the National Assembly Service Commission is the regulatory body for the National Assembly. It is the equivalent of the Federal Civil Service Commission and the Federal Judicial Service Commission with respect to the National Assembly.
The reference to the Civil Service Commission of the Federation or of a State in subsection (4) of Section 6 of the National Assembly Service Commission Act, is in sync with this stance. What is the status of the Office of the Head of the Civil Service of the Federation as it concerns this debate? The office of the Head of Civil Service of the Federation is captured by section 171 (2) (b) of the Constitution. It is pertinent to cite from Section 171 (1) thus; 1. Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office shall vest in the President. 2. The offices to which this section applies are namely;a. Secretary to the Government of the Federation,b. Head of Civil Service of the Federation. By this provision, it is clear that the Office of the Head of service is not a Commission and even within the civil service jurisdiction, it is the Federal Civil Service Commission that appoints, dismisses and exercise disciplinary control over civil servants as contained in paragraph 11 (1)(a) – (b) of the Third Schedule of the 1999 Constitution as amended. Hence, the Head of Service lacks the constitutional and statutory competence to dictate issues that borders on the jurisdiction of the National Assembly Service Commission. Already Section 158 (1) of the Constitution stipulates bodies of government that have independence status and it includes the Federal Civil Service Commission.
In this vein, the independence of the National Assembly Service Commission is sacrosanct in the affairs of the National Assembly. It is only where the enabling Act concedes any of its powers to another Commission, that such grant of power will suffice. This can be gleaned from section 7 of the National Assembly Commission Act on power of delegation and certain restriction thereon. In fact, looking at the Ghanaian system, there are various services with relative autonomy. They have the Head of the Police Service as our won Police Service Commission, Head of Judicial Service, Head of Legislative Service among others. The essence is to forestall conflicts on jurisdiction among key government functionaries.
Perhaps, it is imperative for the current team on Constitution amendment to accommodate the new observations and factor them in the constitutional alteration. In the overall context, the National Assembly is independent and is under the constitutional and statutory regulation of the National Assembly Service Commission. Therefore, the Head of the Civil Service has neither the constitutional nor statutory locus to dictate to this separate and autonomous arm of government. It is equally trite in law that the actions of the National Assembly Service Commission must conform to the constitutional provisions and the laws of the land.For the avoidance of doubt, the Constitution of the Federal Republic of Nigeria 1999 (with alterations) as our supreme law or ground norm, is anchored on the hallowed age long principle of separation of powers and the allied concept of checks and balances.
Thus, it established three distinguishable and independent arms of government – legislature, executive and judiciary. The Supreme Court in the case of Attorney General of Federation v. Attorney General of Abia State & 35 Ors, echoed this inevitable principle of constitutional democracy in these words: ‘’The principles behind the concept of separation of powers are that none of the three arms of government under the constitution should encroach into the powers of the other. Each arm – the executive, legislative and judicial is separate and equal and co-ordinate department and no arm can constitutionally take over the functions clearly assigned to the other. Thus, the powers and functions constitutionally entrusted to each arm cannot be encroached by the other.
The doctrine is to promote efficiency in governance by precluding the exercise of arbitrary power by all and thus prevent friction. [[2002] 6 NWLR Pf.264]’’. Also worthy of note, is section 318 (1) of the interpretation section which holds – “Public Service of the Federation” means the service of the Federation in any capacity in respect of the Government of the Federation, and includes services as;a) Clerk or other staff of the National Assembly or of each House of the National Assembly; b) Member of staff of the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of the Federal Capital Territory, Abuja, the Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Customary Court of Appeal of the Federal Capital Territory, Abuja or other courts established for the Federation by his constitution and by an Act of the National Assembly.
The same interpretation section 318(1) states that:“Civil Service of the Federation” means service of the Federation in a civil capacity as staff of the office of the President, the Vice-President, a Ministry or department of the Government of the Federation assigned with the responsibility for any business of the Government of the Federation.It is incontrovertible from the above definition of our supreme law, that National Assembly and the Judiciary staff are public servants and not civil servants. Therefore, they belong to an independent arm of the public service which is beyond the jurisdiction and statutory scope of the civil service as ordained by the unassailable doctrine of separation of powers.
The Civil Service by constitutional interpretation is simply the executive arm of government under the President and the Vice-President. A community reading of sections 51, 153, 160, 169 and the interpretation section 318(1), will establish the fact beyond doubt, that the National Assembly Service Commission is not a Federal Executive Body, and as such, it is not within the contemplation of the attendant civil service rules in that sphere. In short, the enlistment of the Federal Judicial Service Commission and the National Judicial Council in section 153(1) of the Constitution is a manifest breach from the spirit and letters of the hallmark doctrine of separation of powers. The current debate with regard to the National Assembly Service Commission had resonated during the Second Republic experience on our return to civilian rule after thirteen years of military interregnum.
The then President Shehu Shagari vetoed the National Assembly Service Commission Bill, 1980, on the ground that it was within his executive powers to appoint the staff of the National Assembly through the general pool of the Federal Civil Service Commission. But when the National Assembly rose to the occasion on the unimpeachable advocacy of the doctrine of separation of powers that made her a master in her own house, the President succumbed and gave his assent to the bill. There is a general misconception which stems from section 310 – the transitional provision of the Constitution that yielded the appointment of the formative Clerk and other staff of the National Assembly to the Federal Civil Service Commission. It did same to the Clerk and other staff of the State House of Assembly to the State Civil Service Commission.
The above transitional provision has emasculated the State Houses of Assembly where the Clerk and other staff are posted to these legislative houses from the general civil service pool. The pathetic performance rating of the State Houses of Assembly that now operate as the executive arm outpost must be traced to this anomaly. It is a fundamental threat to our constitutional democracy because the expected oversight and independent scrutiny roles conferred on the legislature has been severely compromised.It is incumbent upon all and sundry to appreciate the unique challenges of the legislative institutions the world over and our internal experience in particular.
The concrete reality is that there is apprehensive scarcity of specialized legislative bureaucrats all over the world, especially, legislative drafters, reporters, and legislative scrutiny experts. We must embrace the biting truth that the only arm of government that went into abeyance throughout our long years of military rule is the legislative arm. This crucial fact validates the need to accord this organ of government deserved attention to retain her remaining trained and experienced hands.
The National Assembly is a master of its own house on the constitutionally entrenched concept of separation of powers. It is therefore, not subject to the National Council on Establishment (NCE) advocacy. This council is an executive arm forum which is a departure from the pith and substance of our argument on an independent National Assembly. The National Assembly has power to appoint Secretaries and other officers including the Clerk to the National Assembly as prescribed in its establishment Act. Such appointment is not in conflict with those under the control of the Federal Civil Service Commission or Office of the Head of the Civil Service of the Federation.
The argument over the purported strain such offices will put on the economy of Nigeria does not hold water. The National Assembly has an envelope each year and its operations are based on that envelope. There is no way the appointment or promotion of Officers of the National Assembly will become additional burden on the federal government when there is statutory allocation to the legislature. Indeed, staff promotions are major entitlements to staff which spur them for higher productivity and performance. If there is any arm of government that deserves much attention in human resource development, it is the National Assembly because of its many years of abeyance in the hand of military administrations and therefore, every encouragement for the legislature to develop in Nigeria should be given as there cannot be a democracy in any society without the Legislature.
Dr. Uhuo was Editor of the National Assembly Legislative Digest, Official Publication of the National Assembly
