Legislative Oversight and Public Accountability

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by Victor Ndoma Egba

Legislative oversight refers to the power to review, monitor and supervise agencies, programmes, activities and policy implementation of the executive arm of government by the legislature. In this paper I will use the terms National Assembly, Parliament, Legislature and Congress interchangeably.
Underlying this power of oversight are democratic principles as well as practical reasons. John Stuart Mill, the utilitarian philosopher, insisted that oversight was the key for a meaningful representative body. He said

“The proper office of a representative Assembly is to watch and control their government”
See “Considerations on Representative Government” p.104. The underpinning philosophy for oversight is the constitutions system of checks and balances among the legislature, executive and judiciary.

James Madison, known as the Father of the American Constitution, described the system as establishing;
“Subordinate distribution of power, where the constant aim is to divide and arrange the several offices in such a manner that each may be a check on the other” Federalist papers No. 51
A leading role for the legislature has always been judged an essential defence against executive tyranny.

Madison argues that “in a republican government the legislative power necessarily predominates” (Hamilton, 1788d & p.2065). The end of absolute executive power is affirmed by giving to the legislature, and to it alone, the right or power to make laws. Arbitrary government is replaced by a formal procedure for law making. The painstaking process for passing bills into law signals the importance attached to government by rules rather than individuals. Authoritarian rulers govern by decree but in a democracy, bills are scrutinized and passed through a thorough, threadmill and painstaking process.

Oversight is a loosely defined term that covers a wide variety of obligations and responsibilities of a legislative nature and the extent of which is defined by each country’s constitution and municipal laws. Part of this power is also inherent in the nature of parliament or the legislature.

Jeremy Borbon says: “Generally, the term Congressional (which is the United States expression for the Legislature or Parliament), oversight refers to the act of congress looking over the executive branch as well as monitoring and supervision of the implementation of public policies. Throughout history Congress has used many tools to pursue its oversight responsibilities; these include special investigations, appropriation and legislative review”

Oversight responsibilities are carried out in two broad ways: “the police patrol” method and the “fire alarm” method. The “police patrol” method implies a continuous watchfulness or constant supervision of the Ministries, Departments, and Agencies of Government and bureaucracy; the same way that the police constantly patrols the streets to provide security.

This type of oversight is usually costly in terms of funds and capacity. The “fire alarm” method on the other hand is conducted as a result of concerns by constituents; the public, or the media. It can also happen through whistle blowing. Unlike the police patrol method which is preventive and designed to pre-empt or prevent issues the “fire alarm” method is ex-post facto oversight as it deals with issues after they have caused a fire. It is usually cheaper in terms of funds and maybe costlier in terms of the damage that may have already occurred.

Section 4(1) of the constitution of the Federal Republic of Nigeria 1999 (as amended) vests the legislative powers of the Federal Republic of Nigeria in the National Assembly consisting of the Senate and the House of Representatives and the power extends to making laws for the peace, order and good government of the federation or any part thereof with respect to any matter included in the exclusive legislative list set out in Part 1 of the second schedule to the constitution. (see S.4(2) of the Constitution (as amended).

In my view this section also vests all implied and inherent powers of law making, including the power of oversight in the National Assembly. If however there were any doubts regarding this, the doubts are vitiated by section 88 of the constitution which provides;

i. “subject to the provisions of this constitution, each House of the National Assembly shall have power by resolution published in its journal or in the official Gazette of the Government of the Federation or direct or cause to be directed investigation into;

(a) Any matter or thing with respect to which it has powers to make law; and

(b) The conduct of the affairs of any person, authority, ministry or government department charged,
or intended to be charged, with the duty or responsibility for;

i. Executing or administering the laws enacted by the National Assembly; and;

ii. Disbursing or administering moneys appropriated by the National Assembly”.

Therefore, the National Assembly is vested with oversight powers including the powers to investigate any matter or thing within its legislative competence and the conduct of affairs of any person, authority, ministry or government department charged with the duty or responsibility for administering or executing the laws passed by the National Assembly, and any person, authority, ministry or government department charged with any responsibility howsoever for moneys appropriated by the National Assembly. Undoubtedly these powers are wide and extensive but are the powers at large?

Section 88(2) of the constitution provides that the powers conferred on the National Assembly under section 88 are exercisable only for the purpose of enabling it to;

(a) Make laws with respect to any matter within its legislative competence and correct any defects in existing law; and

(b) 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” (emphasis mine)

Though the Constitution sought to circumscribe or limit the powers to subsections (2)(a) and (b) the powers conferred by those subsections {(2) (a) and (b)} remain very wide and extensive. These powers are further re-inforced by the powers conferred on each of the Houses (Senate or House of Representatives) or any of its Committees established under section 62 of the Constitution exercising its powers of investigation pursuant to section 88 to procure evidence, written or oral, direct or circumstantial as it may think necessary or desirable, and examine all persons as witnesses whose evidence may be material or relevant to the subject matter; require such evidence to be on oath; summon any person in Nigeria to give evidence at any place or produce any document or thing in his possession or under his control; issue a warrant to compel attendance; order payment of costs occasioned by his failure, refusal or neglect to obey the summons and impose fines for such failure, refusal or neglect.

Any fine so imposed is recoverable in the same manner as a fine imposed by a court of law. These are police and quasi-judicial powers and have inevitably been the source of constant irritation to the executive arm of government. Unfortunately it is irritation that must be borne with fortitude and equanimity because it is the power that guarantees the growth of public institutions and enhances public accountability.

In the word of John Stuart Mills, “The proper office of a representative assembly is to watch and control the government; to throw the light of publicly on its acts, to compel a full exposition and justification of all of them which any one considers questionable; (and) to enforce them if found condemnable” 1861 p 258.

The relationship between a President as representative of the executive in a presidential system of Government and the Legislature everywhere is complex, without exception. The tension remains even when the same party has produced the president and controls the legislature. Hague and Harrop have succinctly put its thus; “Whatever their party, members of congress (the legislature) have different electoral interests from the President. They are elected without term limits from their local areas for distinct terms… These particular interests mean that the Presidential Government is inherently less party based than its parliamentary cousin.

Secondly, in a system of shared control Presidential power becomes the power to persuade – see “Comparative Government and Politics” p.322.

At the root of the executive/legislature tension is among others, but prominently; the legislative oversight powers. The essence of the power however remains to build strong public institutions, minimize waste, inefficiency and corruption in the public sphere, and promote accountability in government. Enormous and wide as the oversight powers of the National Assembly are do they ensure public accountability?

The National Assembly has, especially in the recent past deployed its enormous oversight and investigative powers to expose weaknesses in our institutions and governance processes. Of special mention is the continuous reform of the budget process, the petroleum subsidy regime, the privatization process and pension investigations which revealed massive fraud and suborning of the schemes thereby rendering them opaque and fraught with corruption. These shortcomings will be addressed and eliminated as amendments to the relevant legislations or new legislations are contemplated.

In my view, the constitutional powers, inherent, implied or express offer a legal framework for holding the executive to standards of accountability and transparency. It is a veritable weapon in achieving accountability and transparency in the public sphere but it is certainly not the only means, and it alone, will not achieve that level of transparency in government that is essential for the reconnection of government and the people. Government does not operate in isolation, unaffected by the society of which it forms part, but rather both reflect and help to shape the broader social framework.

The political culture and values of the people will to a large extent influence the level of public accountability. A permissive value system, a “high context” culture in which people are colourful, noisy, quick to make promises that cannot always be relied on, and a bit casual about timelines and deadliness” are likely to be more tolerant of opaqueness of government.

“High context societies believe deeply in tradition, history, and favoring the in-group, whether it is ones family (in our situation in including tribe) or business circle and thus they are vulnerable to corruption” – see

“Breakout Nations” by Ruchir Sharma” p40.

In these societies a lot is unsaid and the spoken word is often flowery and vague.
In contrast, in “low context” societies people are individualist, private and more likely to stick to timelines, deadlines and their word. Their people tend to be on the move and have; “many brief relationships and thus rely on simple communications and codified rules to guide behavior”
(Sharma, Supra) are likely to insist on open and transparent standards in governance and the public sphere. Clearly therefore in seeking public accountability, the oversight powers of the legislature are contributory not exclusive.

There is the need to investigate the culture and value system, a system that is dynamic as will be evident from two short personal experience.

1. Between 1960 and 1963 my mother was Chairman of Ikom county Council (now approximately Local Government Councils) the first woman in the then Eastern Region to so be). Ikom is now made up of three Local Governments. As Chairman of Council she neither had a car nor a bicycle. She walked to work and official functions except where a kindly constituent offered to drive her to either. This did not diminish her person or office.

2. As a Youth Corper in Bauchi in the late 1970’s, I had gone to see the home of Sir Abubakar Tafawa Balewa , (which was a must visit to visitors to Bauchi) several times Minister and Nigerian’s first and only Prime Minister who was killed in the needless events of January 1966. It was an ordinary mud and wattle building in an ordinary part of Bauchi State. He lived a most ordinary life in the midst of most ordinary people. So did the famous Mallam Aminu Kano.

Rectitude, modesty, and thrift were the prevalent values then. In such a mileu, accountability is easier to enforce and achieve than in the monetized and transactional environment we have today. Is it possible to have a Chairman of a Local Government trek to work or a Minister live in mud and wattle building in an ordinary part of town today? What social compromises have we had to make for this new value system? Is this new value system conducive to public accountability?

The mindset today is to make it rich and quick as money and money alone has become the measure of social acceptability and defines our relevance. As every situation re-infornces itself this mindset can only deepen the culture of corruption, brazenness and impunity which in my view is a consequence of people exploiting systemic inefficiencies due to weak institutions for personal advantage.

Public accountability is the hallmark of modern democratic governance. Democracy will remain a pipe dream if those in public authority cannot be held accountable for their acts and omissions, for their decisions, their policies, and their expenditure. Accountability refers to the institutionalized practices of account giving.

Legislative oversight thrives in a viable democracy. A viable democracy requires more than the implementation of the key institutions of government. Rather, accountable and efficient governance is embedded in a complex web of independent conditions that require considerable drive and effort to develope and the media plays a crucial role in the process of democratization and consolidation and must contribute to an informed and active citizenry that is able to hold government to account. The media must therefore be able to act as mobilizer of public opinion and watchdog of public values. The lack of a vibrant civil society in many new democracies has been linked in the persistent problems of corruption, ineffective governance and weak public and social institutions.

Institutions set up is not enough to guarantee the flourishing of a democracy. The political orientation of the citizens and their values and the degree to which they are consistent with the values and institutions of a democratic system are equally important. Elements of a democratic political culture include cognitive mobilization, indicated by interest in public affairs and public knowledge, the willingness to participate in political life, further the sense of civic competence and the belief to have an impact on the course of politics, and support of democracy both as it actually exists and as a general ideal. In other words; “if citizens are ignorant about political issues, do not make an effort to have a say, despise their representatives and do not believe in democratic values, then the viability of that democracy might be seriously at risk – even if the institutions are perfectly designed it” – The Media, Government Accountability and Citizen Engagement by Katrin Voltmer.

The media and civil society are the main source of information and their role is now enhanced by the Freedom of Information Act signed into law on 28th May 2011 by President Goodluck Ebele Jonathan GCFR, sponsored by me as a bill in the Sixth Senate), which gives the public at large the right to any public information not excepted or exempted by the Act. Every Nigerian, as he or she has no further excuses, must hold government, and indeed public officials, to their responsibility to achieve previously set objectives and publicly account for them. Public accountability connotes the burden of accountability on each public functionary to act in the public interest according to his/her conscience.

In the discharge of their duties public officials must be open or transparent about all decisions they take and all their actions. They should give reasons for their decisions and actions and restrict information only when the greater public interest so demands. They must act with integrity, with consistency in actions, values, methods, measures, principles, expectations, outcomes and character. They must be honest and truthful regarding the motivations for their actions.

Corruption threatens the economy and political fortunes of developing countries especially. It imposes heavy costs on the economy, distorts developmental policies and undermines confidence in public institutions. It is an abuse of entrusted power for personal gain.

CONCLUSION

While the constitution of the Federal Republic of Nigeria has given the responsibility of oversight on the executive to the legislature the same constitution has placed the responsibility of ensuring public accountability on every Nigerian. Chapter two of the constitution sets out the fundamental objectives and directive, Principles of State Policy; the objectives and ideals of government. We should demand no less than these objectives of government and this we must do by insisting on public accountability. The privilege of non accountability remains a privilege for God, madmen and children only.

For the Legislature to retain and maintain the public trust in its oversight functions, it must be like Ceasers wife above board. It must, as an institution, and its membership stand up to the harshest public scrutiny.

Having said this, the National Assembly will never abdicate its constitutional responsibilities including that of oversight, no matter how irritable this is to the executive as doing so will be compromising our hard won democracy. Oversight and investigations will continue with even more rigour as the National Assembly continues to build capacity which it lost due to several years of being in abeyance as a result of military rule.

PAPER PRESENTED AT THE ANNUAL PUBLIC LECTURE OF THE FACULTY OF SOCIAL SCIENCES, UNIVERSITY OF NIGERIA – NSUKKA ON 19TH OCTOBER 2012.

BY:

SENATOR VICTOR NDOMA-EGBA OFR, CON, S.A.N.
SENATE LEADER

Profile

Victor Ndoma-Egba holds two National honours, Officer of the Federal Republic (OFR) and Commander of the Niger (CON). He was born in Ikom, Cross River State on 8th March 1956. He was briefly at the University of Nigeria, Enugu campus before proceeding to the University of Lagos where he obtained the LL.B (honour) degree in 1977, and was called to the Nigerian Bar in 1978 making him a member of the famous “1978 set” the set with highest number of Supreme Court Justices and Senior Advocates of Nigeria.

He subsequently obtained the LL.M fom the University of Calabar and various certificates from the Irish Development Institute, Shannon Ireland, Stanford and Havard Universities in the United States of America. He had extensively practiced law in all the Superior Courts of record for several years.

He was appointed Commissioner for Works and Transport in Old Cross River State (Cross River and Akwa Ibom States) at the age of 27; had served as Director of Cross River Basin Development Authority in the 3rd Republic and has chaired the Boards of Companies in the private sector with interest ranging from banking, construction and manufacturing.

He was elected into the Senate in 2003 to represent Cross River Central Senatorial District, was elevated to the rank of Senior Advocate of Nigeria in 2004, the only one so far from the National Assembly and outside legal practice and academics. He was re-elected to the Senate in 2007 and 2011. He had served as the first Chairman of Senate Committee on Media and Public Affairs, (5th Senate) Deputy Senate Leader (6th Senate) and is currently Senate Leader of the Nigerian Senate and is credited with over 22 bills including the Freedom of Information bill which is now an Act.

He is very widely travelled and was leader of the Nigeria Delegation and member of the Association of Senates, Shooras and Equivalent Councils in Africa (ASSECAA). He is currently leader of the Nigerian delegation to and member of the Pan African Parliament, Midrand, South Africa and was a delegate to the 50th General Assembly of the United Nations.

He reads, writes and plays lawn tennis avidly in his spare time. He is married to Amaka and has 3 children.

He holds several honours (including several Chieftaincy titles), awards and prizes including the Kwame Nkrumah Leadership Prize

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