RECENTLY, there have been controversial opinions about the appointment of secretaries of directorates within the National Assembly Service who are of the status equivalent to Permanent Secretaries in the counterpart civil service. Aside, National Assembly is always amidst of one controversy or the other in the public space. The most devastated Arm of government as a result of military incursion is the legislature. The reason for misconception of many of the actions taken on or around the National Assembly could perhaps be premised on long military rules that had ruthlessly dealt with the Nigerian Democratic rules. Over the years, the judicial and executive arm of government have grown organically as opposed to the legislature who started gaining its feet in 1999 when democracy was embraced fully and in 2004 when the National Assembly service commission was created. In contrast, the federal civil service commission has been in existence since 1963. Of a truth, many Nigerians are still struggling to wake up to the reality that legislature comes with its level of independence in all spares of its existence as a separate arm of government. However, it is expected of every legislative expert to continue in engaging the members of the public in the knowledge-based discussions for enlightenment purposes.
For the purpose of education, there are there constitutional provisions that empower the National Assembly to establish and manage its bureaucracy outside the control of Head of Service. Section 4(1) of the 1999 Constitution emphatically stated thus: ‘The legislative powers of the federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.” Section 4(2) went further to be explicit about the legislative powers of the National Assembly – “National Assembly is empowered to make laws for the peace, order and good governance of the Federation or any part thereof 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”. In furtherance of Sections 4(1) and (2) of the 1999 Constitution, Section 51 prescribed a Bureaucracy for the National Assembly clearly separate from Civil Service, that; “There shall be a 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 as inferred 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 reorganize 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 Assembly Ii. The Deputy Clerk to the National Assembly iii. The Clerk of the Senate iv. The Clerk of the House of Representatives v. The Deputy Clerk of the Senate Vi. The Deputy Clerk of the House of Representatives vii. 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. While the office of the Clerk to the National Assembly and by extension, Registrar to the Supreme Court are equivalent to the Head of the Civil Service of the Federation and these offices are not superior to one another, However none of them can work in isolation from each other. The “office of the Secretary” in the National Assembly Bureaucracy which is equivalent to “Office of Permanent Secretary” in the civil Service is legal as it is in line with Section 51CFRN. 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. By definition, the Civil service is restricted to the Executive Arm of government with the choice of words like “President and Vice President” which conforms with the principle of separation of powers associated with the presidential system of government we practise.
Also the words “Ministry” or “Department” does not define the National Assembly or the legislature as National Assembly is not a ministry or Department but an Arm of Government. 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.
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 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 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.
- Dr. Muhammad is a legislative scholar and social commentator
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