Abstract
The articulation and execution of foreign relations policies are no doubt responsibilities that fall squarely within the legal and constitutional competence of the executive in most democratic societies. Nevertheless, the place of the legislature in ensuring success can never be glossed over. This article examines the nature and means of legislative powers on the foreign plane. It focuses on an articulation of these powers using the Nigerian National Assembly as a case study. It is discovered that the powers exercisable are derived from the basic legislative powers granted by the Constitution and that they are quite extensive. Nonetheless, the Nigerian National Assembly is yet to attain the “transformative” status as envisaged by the Nigerian presidential Constitution.
Keywords
Introduction
Foreign relations describes the totality of actions taken by a state on the foreign plane (Oyebode, 2003). It encompasses all acts that affect relationships between a country and (the government and people of) another country. Foreign policy has traditionally been and is still without exception a key part of the responsibilities of the executive. In most countries, the leading role of the executive in the field of foreign policy is clearly established in constitutional law and is supported by both legislation at the lower-level and customary practice (Tiitinen, 1996).
However, without any gainsaying, the legislature 1 in the fulfillment of its representative function as an institution that personifies the collective voice of the people should definitely be a most apposite avenue for the realization of a country’s foreign relations objectives. This article primarily examines the ways and means by which the Nigerian National Assembly is constitutionally empowered to exercise its powers in the foreign relations arena. To this end, four basic issues are discussed. First is an attempt to provide a theoretical framework for the article. Next is a look at foreign policy decision-making systems, and third is a consideration of the basis for the exercise of parliament’s foreign relations power. Fourth is an analysis of the specific means of exercising foreign relations powers by the Nigerian National Assembly.
Theoretical Background
The effectiveness of a legislative house in affecting executive action is often predicated on whether the governmental system in operation is parliamentary or presidential. Where it is the former, it is deemed that the house will generally be weaker and vice versa because the presidential system presumably provides legislative houses with more institutional-cum-constitutional autonomy than does the parliamentary system. Measures of the relative “viscosity” (Blondel, 1970) of legislative houses have also been used in determining the nature of legislative–executive relations. Such measures, according to Kreppel (2012), focus on the extent of the power of the legislature to hinder the executive arm in the adoption of new policies. Interest here is on whether the legislature possesses the ability to use delay tactics or even legislative veto to make the executive come to the negotiating table in order to reshape proposed policies. Another approach is to use classification schemes such as “arena”-type legislatures and “transformative”-type legislatures (Polsby, 1975). Arena-type legislatures describe those that serve more as “debating” assemblies with little or no concrete impact on the process of formulating and outputting public policies as legislation. Transformative legislatures, on the contrary, possess the ability to directly and substantively affect the character and contents of public policy outputs particularly as legislation. Transformative legislatures thus tend to be more independent as in presidential systems, while the arena-type legislatures tend to be less independent as in parliamentary systems where legislative and executive powers are somewhat constitutionally fused.
The principal–agent theory is another useful way of describing legislative–executive relations, which essentially depicts a study of power balancing and control between the two governmental arms (Martin, Saalfeld, & Strøm, 2014). Here, the parliament is the principal, while the executive is the agent with all the attendant incidences of such relationship at law (Strøm, 2000; Strøm, Müller, & Bergman, 2003). A core thesis of the theory that the agent will normally have divergent interests from those of its principal is of particular relevance to legislative–executive relations on the foreign relations field. This is so as despite the assumed commitment of both to national interests, the executive tends to be more internationalist and thus yield more easily to diplomatic pressures from foreign countries (executives), while the parliament, being composed of members representing smaller units (constituencies) within the country, tends to be more nationalistic. It is thus expected that legislators will more readily insist on the alignment of foreign policies with local interests.
All the same, as noted by Tiitinen (1996), parliament’s position in the system of deciding foreign policy varies as a result of differences between political systems and cultures. Parliaments have, however, generally established their role in foreign policy decision making through and as a consequence of their traditional areas of power, the dependence of governments on parliamentary support, as well as their legislative and budgetary powers.
This especially applies to the ratification of international treaties and the adoption of legislation implementing them at the national level. As Parliaments’ position worldwide become strengthened, the available means, strategies, and spheres of influence over the general policy direction and control of foreign relations seem to have broadened and may in fact still diverse and increase. As pointed out by Tiitinen, indeed, “growing parliamentary diplomacy has created a new and more significant level in the conduct of international relations” while the emergence and growth of regional parliamentary bodies seem “to have awakened Parliaments to increase their role in the supranational decision-making” which previously used to be an exclusive preserve of the executive.
Foreign Policy Decision-Making Systems
The foreign policy of every country usually revolves around the attainment of certain objectives. For example, usually, the foreign policy objectives of Nigeria as set out by Section 19 of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 2 are as follows:
promotion and protection of the national interest;
promotion of African integration and support for African unity;
promotion of international cooperation for the consolidation of universal peace and mutual respect among all nations and elimination of discrimination in all its manifestations;
respect for international laws and treaty obligations as well as the seeking of settlement of international disputes by negotiation, mediation, conciliation, arbitration, and adjudication; and
promotion of a just world economic order.
As previously noted, in most countries, the main actor in the formulation and execution of foreign relations policies remain the executive, differences between foreign relations decision making systems notwithstanding. Systems according to Tiitinen (1996), “mainly differ with regard to whether this means it in appropriate circumstances, refers to the government or the head of state and the government with a division of tasks and responsibilities or the head of state alone.”
This however does not necessarily indicate a zero or non significant parliamentary influence on the foreign relations plane. Yes, in the United States and Russia (to a large extent), the president’s leading role in foreign policy matters is generally taken, it nonetheless appears that the role of the Slovenian Parliament in the formulation and execution of foreign relations policies is particularly strong. It should be noted also that although the head of state in Denmark, Netherlands, Norway, Germany, Belgium, Italy and Spain may seem to wield broad powers, actual powers however reside in the government which is responsible to the parliament. Some other countries such as Sweden, Iceland, United Kingdom, Israel, Switzerland, Greece, Namibia, Australia, Ireland and New Zealand have foreign relations decision making systems where the parliament does exercise some influence despite the leading role played by the government (Tiitinen, 1996).
In Nigeria, the National Assembly is empowered constitutionally to wield considerable influence and power over the country’s foreign policy. Although there is no doubt that the domain of foreign relations policy formation and implementation belongs mainly to the executive arm of the government, there are specific and general constitutional provisions that subject executive action to legislative approval or scrutiny. For instance, the president cannot without the sanction of a resolution of both houses of the National Assembly declare a state of war between the federation and another country nor can he deploy the armed forces on combat duty outside Nigeria without Senate’s prior approval (Section 5(4), CFRN, 1999). More on this will still be discussed later.
Foreign Relations Power Basis
All legislative assemblies have three fundamental powers, namely, legislative power, budgetary power, and democratic oversight powers.
Legislative Power
This refers to the power of the parliament to make laws. Section 4 (CFRN, 1999) gives the National Assembly (consisting of the Senate and the House of Representatives) power to make laws for the peace, order, and good government of the federation or any part thereof. This legislative power at the state level is given to the State House of Assembly (Section 4(7), CFRN, 1999).
Budgetary Power
The parliament’s power here extends to the scrutiny of the budget submitted by the executive and its consequent passage as the annual Appropriation Act or supplementary Appropriation Act (Sections 81 and 121, CFRN 1999). This is so as no money may be withdrawn from the Consolidated Revenue Fund or other public fund of the federation except to meet expenditure that is charged upon the fund by the Constitution or as approved by an Appropriation Act duly passed by the National Assembly (Section 80, CFRN 1999).
Democratic Oversight Power
Section 88 (CFRN, 1999) gives each house of the National Assembly power to direct or cause to be directed an investigation into
any matter or thing with respect to which it has power to make laws and
the conduct of affairs of any person, authority, Ministry or government department charged, or intended to be charged with the duty of, or responsibility for, executing or administering laws enacted by the National Assembly; and disbursing or administering moneys appropriated or to be appropriated by the National Assembly.
This oversight power is exercisable for the purpose of making laws with respect to any matter within its legislative competence and correcting any defects or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.
The foreign relations power of the Nigerian National Assembly is thus a derivative one, flowing from the above three fundamental legislative powers, and as we shall see, it is mainly drawn from the Constitution.
Means of Exercising Foreign Relations Powers
Legislations With Foreign Relations Implications
The National Assembly is the repository of the entire legislative power of the federal government, which is defined to extend to all the items on the exclusive legislative list set out in Part I of the second schedule to the Constitution, to the items on the concurrent legislative list listed in Part II of the said second schedule to the extent therein stated, and to the matters over which it is given legislative competence in the body of the constitution (Nwabueze, 1982).
Many of the items over which the National Assembly exercises legislative competence are matters which have direct or indirect implications on the country’s foreign relations. Thus, whenever the National Assembly legislates on any of these items, it thereby makes its contribution to the nation’s foreign relations policy. Some of these items on the exclusive legislative list are arms, ammunition, and explosives (Item 2); aviation, including airports, safety of aircraft, and carriage of goods by air carriage of goods by air (Item 3); awards of national titles of honor, decorations, and other dignities (Item 4); borrowing of money within or outside Nigeria for the purpose of the federation of any state (Item 7); citizenship, naturalization, and aliens (Item 9); copyright (Item 13); customs and excise duties (Item 16); deportation of persons who are not citizens of Nigeria (Item 17); diplomatic, consular, and trade representation (Item 20); exchange control (Item 24); export duties (Item 25); external affairs (Item 26); extradition (Item 27); fishing and fisheries other than fishing and fisheries in rivers, lakes, waterways, ponds, and other inland waters within Nigeria (Item 29); immigration and emigration from Nigeria (Item 30); implementation of treaties relating to matters on the exclusive legislative list (Item 31); maritime shipping and navigation (Item 36); nuclear energy (Item 41); passports and visas (Item 42); and trade and commerce and in particular (a) trade and commerce between Nigeria and other countries including import of commodities into and export of commodities from Nigeria and trade and commerce between the states (b) establishment of a purchasing authority with power to acquire for export or sale of designated agricultural produce in world markets: (c) inspection of produce to be exported from Nigeria and the enforcement grades and standards of quality in respect of produce so inspected (Item 62).
As can be seen from the above list, the foreign relations power exercisable here by Nigeria’s National Assembly is quite extensive. The executive cannot therefore afford not to carry the two national legislative assemblies along in the formulation and execution of its foreign policies as such an action could prove fatal to the success of the policy especially where it requires incorporation into a federal legislation. It should be noted that in Nigeria, where the president fails to sign a bill passed by the Senate and the House of Representatives within 30 days, each house may thereafter pass the bill into law by two thirds majority vote, and the president’s assent shall be thereby dispensed with (Section 58, CFRN, 1999). The exercise by Nigeria’s National Assembly of its law-making powers is, however, often circumscribed by the overbearing influence of the executive on legislative processes.
Presidential Appointments
Parliaments do generally play a crucial role in the appointment of cabinet members and other key government officials especially for the foreign field. In Nigeria, any appointment to the office of Minister of the government of the federation can only be made by the president, if the nomination of any person to such office is confirmed by the Senate (Section 147(2), CFRN, 1999). Thus, no cabinet minister including the foreign affairs minister can be appointed in Nigeria except with the approval of the Senate. Similarly, any appointment to the office of Ambassador, High Commissioner, or other principal representative of Nigeria abroad cannot have effect unless the appointment is confirmed by the Senate (Section 171(4), CFRN, 1999). The usual practice is for the president to send the names of persons nominated by him for the post of cabinet ministers or ambassadors, high commissioner, or other principal representative of Nigeria abroad, to the Senate for approval. The Senate thereafter scrutinizes the nominees’ credentials and hold special hearings during which they will appear before the house to answer questions put to them. Where a candidate is found suitable, his nomination would be confirmed, and where otherwise, his nomination would be rejected. The snag here in Nigeria is that rarely would the Senate reject a presidential nominee as the presidency has a way of getting around any objections raised by the senators. The August 2015 consideration of ministerial nominees by the Senate is a case in point. Despite various petitions against certain candidates received by the Senate and even vociferous objections raised by a sizable number of senators against these nominees, the presidential still prevailed at the end of the exercise.
The power of the parliament to approve presidential appointments has been given effect by the court. In Balarabe Musa v. The Speaker, Kaduna State House of Assembly [(1982) 3 NCLR 450], the court held that the House of Assembly (the Senate too by implication) has power to refuse executive (presidential) appointments. It is needless to state that the parliament in refusing the appointment does not have to give any reason whatsoever for so refusing. It, however, seems that once the Senate has ratified a presidential appointment, it can no longer withdraw its consent or revoke the appointment. Araka C. J. in Anago-Amanze v. Federal Electoral Commission [(1985) 6 NCLR 638 HC] held that a State House of Assembly has power to confirm or ratify the appointment of a commissioner but it would amount to a complete usurpation of the powers of the governor for the legislative house to by motion or resolution insist that the appointment of a commissioner, which it had earlier ratified, be terminated. It should also be noted that the Constitution nowhere gives an equivalent power to the Senate to remove (sack) a presidential appointee from office. The Senate may, however, in the exercise of its democratic oversight function, by resolution, recommend the sack of any presidential appointee. Such a resolution is bound to be respected by the president (executive) where the legislative house is credible, responsible, and effective.
Section 147(6) CFRN (1999), however, provides that where the Senate fails to take a decision and communicate the same to the president within 21 working days of the receipt of the name(s) of person(s) nominated for appointment as minister(s), the appointment would be deemed to have been made.
Implementation of Treaties
A very comprehensive and apt definition of treaty (Abass, 2012; Aust, 2010; Crawford, 2012) perhaps is that contained in a provisional International Law Commission (ILC) draft on the law of treaties by which a treaty is conceived as
any international agreement in written form, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (treaty, convention, protocol, covenant, charter, statute, act, declaration, concordat, exchange of notes, agreed minute, memorandum of agreement, modus vivendi or any other appellation), concluded between two or more States or other subjects of international law and governed by international law. (ILC, 1962/II, 161) Article 2 of the Vienna Convention on the Law of Treaties however defines treaty as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’ (Shearer, 1994).
A treaty does not become part of Nigeria’s domestic law unless and until it is specifically incorporated as such by a legislative means, that is, via an enabling Act of the National Assembly. Section 12 of the 1999 Constitution states the following:
No treaty between the federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.
The National Assembly may make for the federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty.
A bill for an Act of the National Assembly passed pursuant to the provisions of Subsection (2) of this section shall not be presented to the president for assent and shall not be enacted unless it is ratified by a majority of all the House of Assembly in the federation.
The first thing to note here is that Nigeria adopts a dualistic approach with regard to treaty law. Dualism is a legal theory that sees domestic law and international law as distinct and independent of each other (Crawford, 2012). The two systems, it is maintained, regulate different subject matters. International law regulates the relations of sovereign states, while municipal law regulates affairs internal to the state. Accordingly, dualists hold that the two systems are mutually exclusive and can have no contact with and no effect on each other. If international law is applied within a state, it must therefore be because it has been expressly incorporated into municipal law (Abass, 2012; Harris, 2010; Wallace, 1997).
The raison d’etre for the adoption of the dualistic position as it relates to implementation of treaties is that treaty-making power is basically an executive function. The National Assembly does not participate (or at least is not legally enabled to), and its consent is not legally required before Nigeria can undertake international obligations. An enabling Act is thus a safeguard against the possible abuse of executive authority as it prevents the executive from using its treaty-making competence to introduce domestic legislation without going through the necessary parliamentary procedures.
Hence in Nigeria, before a treaty can have the force of law, the National Assembly (Senate and House of Representatives) must enact it into law. The National Assembly by so doing may modify the treaty as it deems fit or make the enacted Act in pari materia with it. The legislative competence of the National Assembly in treaty matters extend to items ordinarily in the legislative competence of State Houses of Assembly (whether on the Concurrent Legislative List or not) provided that no Act would thereby be enacted without its first being ratified by a majority of all the Houses of Assembly in the country.
Declaration of War and Deployment of Troops
The Nigerian National Assembly has power to control through legislation the establishment, composition, command, and operational use of the Armed Forces despite the fact that the general control of the Armed Forces is vested in the president as the commander-in-chief of the Armed Forces of the Federation (Sections 217 and 218, CFRN, 1999). Section 218(4) states, “[T]he National Assembly shall have power to make laws for the regulation of—(a) the powers exercisable by the president as Commander-in-Chief of the Armed Forces of the Federation.”
As some of the main purposes of the existence of the Nigerian Armed Forces are to defend Nigeria from external aggression, maintain its territorial integrity, and secure its borders from violation on land, sea, or air, it is obvious that it may be necessary at any point in time to use the armed forces to prosecute a war against a foreign state.
To what extent can the president do this without parliamentary approval? Section 5(4) CFRN (1999) provides that the president shall not declare a state of war between the Nigerian federation and any other country except with the sanction of a resolution of both Houses of the National Assembly sitting in a joint session. It also subjects the deployment of the armed forces on combat duty outside Nigeria to the prior approval of the Senate.
Thus, before the Nigerian president can successfully declare war against a foreign state, he must first obtain the consent of both the Senate and the House of Representatives. This is crucial as (a) war is a critical instrument of foreign policy employable only when all other peaceful diplomatic means have been exhausted and had failed to yield any fruitful result, (b) prosecution of a war of any kind usually results in high material and human loss to a nation, and (c) there must be a justifiable cause acceptable (such as self-defense or humanitarian reasons) under international law. It is believed that the National Assembly will never give its consent to such a declaration unless it is the only option left.
The second paragraph of Section 5(5) talks on the deployment of the armed forces “on combat duty outside Nigeria.” This situation, among others, aptly captures the deployment of troops for peace-keeping or peace-enforcing operations whether at the global (United Nations), regional (Economic Community of West African States [ECOWAS]), or any other level. Before this can be done, the prior approval of the Senate must be obtained.
However, to balance the overriding interest of national security against democratization, the Constitution allows an exception to the rule contained in Section 5(4) (Oyebode, 1989). Section 5(5) in this wise provides that the provisions of Section 5(4) notwithstanding, the president, in consultation with the National Defence Council, may deploy members of the Armed Forces of the Federation on a limited combat duty outside Nigeria if he is satisfied that national security is under imminent threat or danger. The president may only do this provided that he within 7 days of actual combat engagement seeks the consent of the Senate and the Senate must thereafter give or refuse the said consent within 14 days.
Parliamentary Diplomacy
Various forms of parliamentary diplomacy exist. First are bilateral parliamentary exchanges, which have increased in number and importance worldwide. Here, members of parliament of a country engage in diplomatic visit to the members of parliament of another country. The purpose may be to broaden their knowledge of parliamentary process obtainable elsewhere or to lobby the parliamentarians on a matter(s) of mutual interest, or it may be a simple courtesy visit. Members of Nigeria’s National Assembly have, for example, undertaken such visits to the U.S. Congress and the U.K. Parliament.
A diplomatic visit may also be undertaken by members of parliament to the government of a foreign country. This is often done to complement the efforts of the national government on the foreign plane. For example, the National Assembly sent a delegation abroad to key members of the Paris Club in the heydays of the campaign embarked upon by the Obasanjo administration on debt forgiveness to complement government’s efforts.
Control Over Public Finance
As previously noted, the parliament does have very much wide power and control over public finance. As noted by Tribe (quoted in Koni, 2006), “if president is the power of the sword then at least in theory the power of the purse belongs to congress” (p. 8). The government may therefore not spend any money on any foreign matter without parliamentary approval. Likewise, inasmuch as the budget that the president must lay as an Appropriation Bill before the National Assembly for passage is a statement of income and expenditure, then it means that the government may not resort to the borrowing of foreign loans without parliamentary approval.
Section 81(1) CFRN (1999) for instance states,
The president shall cause to be prepared and laid before each House of the National Assembly at any time in each financial year estimates of the revenues and expenditure of the Federation for the next following financial year.
It is submitted that loans of any kind (whether internally obtained or externally sourced) constitute part of the “revenues” anticipated by Section 81(1), which must be highlighted in the budget proposals laid before the Senate and House of Representatives. Moreover, the National Assembly is expressly granted the power to control by legislation the “[B]orrowing of moneys within or outside Nigeria for the purposes of the federation or of any state” (Item 7, Exclusive Legislative List, CFRN, 1999).
It in fact goes without saying that parliament’s control over public finance is a major foreign relations power as the government cannot execute any policy without money. Activities on the foreign plane such as obtaining foreign loans, debt-servicing, acceptance of foreign aids, expenses of the foreign affairs ministry and organs (embassies, high commissions, and others), foreign security operations, cost of participation in peace-keeping or peace-enforcing operations, and the rest are thus subject to parliamentary control through budgetary allocation.
The preceding extensive powers of the National Assembly notwithstanding, its ability to concretely exercise them to meaningfully influence executive action on the foreign plane is in doubt due to various factors that seriously impinge upon legislative performance in Nigeria. Primary perhaps is the monstrous pervasiveness of corrupt tendencies in the conduct of public transactions in Nigeria. The immediate effect of this is that the executive could get away with any policy as long as it “speaks the right language” in its dealings with the “honorable” members of the National Assembly. Speaking the right language as used here in Nigerian parlance translates to offering financial inducement to the party one is transacting official business with.
The overbearing influence of the executive is another factor Nigerian parliamentarians contend with. Direct consequences of colonial and military historical antecedents in Nigeria are the colossal powers and influence wielded by the executive arm and which it continues to arrogate to itself even in the face of the realities of inconsistencies with the demands of a constitutional democratic system of government currently in effect in the country. These and some other factors (such as party politics, ethnicity, hidden agenda, and factors personal to individual legislators) tend to make the Nigerian National Assembly to be less “viscous” making it more of an arena-type legislature than a transformative one. This as previously noted negates the institutional and constitutional autonomy granted legislative assemblies in the presidential system of government as practiced in Nigeria.
Conclusion
This article has examined the foreign relations powers of the Nigerian National Assembly in the general and specific contexts. It is observed that Parliament’s foreign relations power draws largely from its three fundamental powers, namely, legislative, budgetary, and democratic oversight powers. The Nigerian National Assembly in specific terms exercises its foreign relations powers through legislations with foreign relations implications, approval of presidential appointments, implementation of treaties, declaration of war and deployment of troops, parliamentary diplomacy, and control over public finance. Its foreign relations powers apart from through legislations are also exercised through plenary sessions, debates, motions, resolutions, committee hearings, and investigations.
It should be noted that owing to the confidentiality generally associated with foreign policy matters, parliamentary control of foreign policy in a large number of parliaments lies mainly in the hands of the foreign affairs committee. This committee can require the government to submit reports on specific foreign policy issues and request related documents. The Greek Parliament, for example, can appoint special committees of inquiry for this purpose, and the Italian Parliament’s committee has specific investigatory and supervising functions. This also obtains in Nigeria. The parliament through its investigative and oversight power can thus overcome the constraints of secrecy that often attend the conduct of a country’s foreign policy.
The Nigerian National Assembly no doubt is yet to fully begin to utilize its wide foreign relations powers, and it is hoped that this little effort will enhance the awareness of its role, place, influence, and potentials on the foreign relations scene.
Footnotes
Acknowledgements
The authors acknowledge the kind contributions of the anonymous reviewers and of the article editor in better refining this article. All errors, however, remain those of the authors.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research and/or authorship of this article.