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Legislative responsibility or lack thereof

Last week, I watched members of the House of Representatives bitterly complaining about the contents of the Cybercrimes Act, which they had themselves passed into…

Last week, I watched members of the House of Representatives bitterly complaining about the contents of the Cybercrimes Act, which they had themselves passed into law this year. They angrily directed the Central Bank of Nigeria to withdraw the circular directing all banks to commence charging a 0.5 per cent cybersecurity levy on all electronic transactions within the country, as this provision is part of the law they had written, debated and passed with the Senate and the President had signed, they were in effect asking a state institution not to obey a valid law they were themselves responsible for enacting.

The motion on the urgent need to halt the implementation of the cybersecurity levy was moved by the member representing the Obio/Akpor Constituency, Kingsley Chinda. Their law had obliged the CBN to issue a circular directing all commercial, merchant, non-interest, and payment service banks, among others to ensure the implementation of the levy from Monday, May 6, 2024: “The levy shall be applied at the point of electronic transfer origination, then deducted and remitted by the financial institution. The deducted amount shall be reflected in the customer’s account with the narration, ‘Cybersecurity Levy,’” the circular partly read.” In the motion, Chinda said, “The House notes that businesses, which the said Section 44(2)(a) refers to are listed in the Second Schedule to the Cybercrimes Act to be GSM Service Providers and all telecommunication companies; Internet Service Providers; Banks and Other Financial Institutions; Insurance Companies and the Nigerian Stock Exchange.

The real issue was that the National Assembly was not aware of the content of the law they had passed and was shocked when they realised their “faux pas”. We have always known that they do not read the legislation they pass and that, therefore, they do not do the work we Nigerians pay them so much to do. Being a legislator in Nigeria is simply getting unto a platform to make lots of money, it is not about legislation.
The legislators were simply reacting to the anger of Nigerians at the imposition of another levy that would worsen the cost of living crisis and inflation they are suffering from. It is good, indeed required, that legislators are on the side of the people. In that case, they need to confess that they passed the bill in error, apologise to the nation for their fault and then proceed to repeal the obnoxious sections of the law. In any case the law clearly had legal problems that indicate it was not carefully considered before passage. But simply asking the Central Bank not to implement a section is in contravention of the rule of law.

I recall the shock of legislators when they realised that section 84 of the Electoral Act, 2022 barred them and political appointees from voting in party primaries. In the tradition of the Fourth Republic, party primaries are massively stuffed by political appointees and legislators who often are more numerous than elected delegates. In a bid to strengthen internal party democracy, INEC had proposed that only elected delegates can vote in party primaries and this provision was adopted by the National Assembly and signed by the President. Of course, the legislators were not aware of the content of the law they were passing and became extremely angry subsequently when they discovered they had excluded themselves from a profitable privilege.
They were not interested in the enunciated principle of ‘democratic election’ meaning the emergence by majority vote is not synonymous with appointment, anointment or selection. A segregation of delegates at party convention or congress for party primaries between ad hoc and special delegates where certain elected office holders get preferential right to load delegates with their hirelings violates democratic principles.

The legislature in Nigeria, as in other democracies, is expected to play two roles in the main that the grand norm specifically gives it exclusively. One major role the Nigerian Legislature plays is that of law making. No law can be validly made in the Federal Republic of Nigeria without it having been passed by the Legislature, the National Assembly at the federal level and the state houses of assembly at the state level. The chief law that the legislature passes annually is the appropriation act. At the national level, the Constitution stipulates that the two chambers of the National Assembly must specify what amount of money can be spent from the Federation Account and on what it can be spent on. Sections 80 (3) and (4) of the 1999 Constitution state:

(3) No moneys shall be withdrawn from any public fund of the Federation, other than the Consolidated Revenue Fund of the Federation, unless the issue of those moneys has been authorized by an Act of the National Assembly.

(4) No moneys shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation, except in the manner prescribed by the National Assembly.

The said Cybercrimes Act bypasses this provision by sending the money directly to the Office of the National Security Adviser. The “power of the purse” confers on the National Assembly the power of oversight. This oversight is meant to empower the legislature to see to it that only monies it appropriated are spent in the quantum and in the manner, it prescribed. When they pass laws whose content they do not even know or which violates the Constitution, they undermine themselves and the Constitution. It would be useful for the National Assembly to pause and consider their basic responsibility. It cannot be to make a lot of money. They have to do their work as well. It is said that:

“Conceptually, legislatures are the most powerful institutions in democratic regimes for a very simple reason. Legislatures are the only institutions with the power to create other powers. They have the monopoly of the powers to make laws through which they create other powers through the establishment of new commissions and agencies, the enactment of policy and the control of expenditure through the process of appropriation laws. In democratic theory therefore, the powers of legislatures are at least as important, if not more important than the powers of executives. Indeed, the theory of representative democracy is constructed on the election of legislators, elected by the people to represent them at the level of law making for the society. It is this legitimacy derived from the electoral process that gives them the power map and moulds the views and concerns of citizens and constituents into public policy.”

In Nigeria, the tradition seems to be to abuse the powers of the legislature for pecuniary gains. This is unfortunate as one notorious fact of Nigeria’s electoral process is that the will of the people, often, does not count. The phenomenon of godfatherism is a fact of life. In many parts of the country it is not the votes of the people that spring up leaders, whether in the executive or legislative arm of government. Through connivance, violence and guile, individuals and groups have perfected ways of enthroning leaders not necessarily by the say-so of the electorate. Leaders, in this instance, legislators, thrown up by this warped process do not really owe anything to the people and, as such, do not need to exert themselves to retain the affection of the people. In that case, why read the laws they are passing. Okay, I withdraw the last sentence, it’s just an expression of my frustration.

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