Case study of nigeria
Law making in Nigeria is constitutionally the function of the legislature, and the law-making powers of the legislature derives from the Constitution as a grant of authority direct from the people by whom the constitution is framed. Section 4 of the 1979 and 1999 Constitutions vests the legislative powers of the Federal Republic of Nigeria in the
Law making involves the determination and declaration of policies in the form of legislative enactments, whereas executive functions call for the application or implementation of the policies contained in the laws made by the legislature.
There are three main organs of the government-the legislature, the executive and the judiciary. The legislature has legislative powers to make laws for the country while the executive has powers to formulate policies, implements and enforce the law; the judiciary interprets the laws and adjudicates over matters brought before it. In the olden days, government was only interested in few matters such as raising tax, raising army for defence of the country and maintenance of security of the state. However, modern system of government has imposed on governments social, cultural economic, agricultural and other matters of human endeavour; legislation in these areas is so enormous that it is virtually impossible for the legislature to cope or legislate on matters main to its functions all alone. As a result of this, the legislature gives powers to other persons or bodies to make necessary laws as applicable. These laws made by the administrative bodies, agency or authority in exercise of the powers given or delegated to them by the constitution or enabling statutes, which is referred to as delegated legislation. Examples of these are byelaws, orders, and regulations by local governments, departments, corporations and agencies.
Methods of Delegating Powers
The power to make delegated legislation may be conferred on subordinates. This may be general or specific as explained under.
a) General delegation
The general or simple delegation of powers to make subordinate legislation comprise a delegation to a donee of wide powers to make laws or act in his or her discretion within the limits which may have been set for him. For instance, Section 7 of The Federal Environmental Protection Agency Act, Cap. F 10, Laws of the Federation of Nigeria, 2004 provides that, ―….the president may give to the agency, directions of a general
b) Specific delegation
Specific delegation enumerates the subject matters on which the regulations may be made. The donee of such power is restricted to taking action only in respect of the specified matters. For instance SECTION 10(2) (a)–(c) of the Nigerian National
a) Issuing permits and licenses for all activities connected with petroleum exploration and exploitation.
b) Acting as the agency for the enforcement of the provisions of the said Acts.
c) Carrying out such other functions as the minister may direct from time to time.
Requirements of a delegated legislation:
(a) Publicity: Delegation to make regulations must be published for public notice. See Section 10 (2) of the Nigerian Citizenship Act.
(b) Approval by legislature: Delegation to make regulations may be required to be laid before the legislature for necessary approval. See Section 10 (3) of the Nigerian Citizenship Act.
(c) Confirmation: Delegation to make regulations may be subjected to the requirement for confirmation or approval or by consultation with the minister or other persons See Section 15 (2) of the Legal Practitioner Act.
Powers that cannot be delegated
Each arm of the government performs different task with different measure of inherent powers. However, it is inevitable that each of the arms of government cannot wholly exercise these powers, there are certain powers, which under no circumstances, must be delegated. Among those powers that cannot be delegated are:
i) The judicial powers of the regular courts
ii) The parliamentary powers of the legislature such as:
a) Its legislative functions other than power to make subsidiary legislation, (that is delegated legislation under the relevant enabling laws already made by the parliament).
b) Power to declare war;
c) Power to impeach; and
d) Power to create new States
In addition, generally, the following functions cannot be delegated:
iii) Duty which must be performed personally; and iv) Duty which involves exercise of discretion. Thus, for a power or function to be delegated, it must be that which another person can perform and no provision against it have expressly been made. In A. G. Bendel State vs. A. G. Federation & 22 Others (1981) ALL NLR 85, the Government of Bendel State brought an action challenging the passage of the allocation of revenue (federal account) bill into law by joint finance committee of both houses of the National
Justification for Delegated Legislation
Many reasons have been canvassed for the practice of delegated legislation, namely:
i). it reduces parliamentary workload: Parliament as a matter of fact, does not have all the time and capacity required to deal with the volume of legislations required by a modern government or state.
ii). It enables experts to legislate on technical and specialised matters on which many of the members of parliament may lack the requisite knowledge that may be required to legislate in detail. Buttressing this point, the British Committee on Ministers Powers in 1932 said, ―The truth is that if parliament were not willing to delegate law making power, parliament would be unable to pass the kind and quality of legislation which modern public opinion requires.‖
iii). It creates room for the legislation of laws which conform to local needs: When the power of delegated legislation is properly exercised and not abused, the administrative authority located in the local community can be reached by the people. The administrative authority can see the local situation for himself and thus properly use delegated legislation to make laws or rule that conform to the needs of the local community.
iv). It affords quick response to a state of emergency: Parliament may not be able to sit and deliberate due to their cumbersome procedures to be able to respond to situations at hand as they unfold. Delegation of powers is desirable to address urgent situation.
Criticism against Delegated Legislation
The arguments against the practice of delegated legislation include:
i). Delegated legislation is a usurpation of the powers of the parliament to make laws for the nation. It waters down the doctrine of parliamentary supremacy.
ii). It is a negation of the concept of rule of law as the usual procedures for the making of laws are not always observed.
iii). The control of delegated legislation is inadequate: Parliament has no time, opportunity or the special expertise that may be required to keep close surveillance and make needed objections to administrative legislations.
iv). Administrative lawmakers sometimes have too much power and discretions. For instance, the delegation of legislative power to ministers, head of departments and so forth, is often done in phrases such as ―As the Hon. Minister deems fit‖, ―In the opinion of the Hon. Minister and so on.‖ These subjectively worded phrases may lead to arbitrary use of delegated power.
The Rule against Sub-Delegation
As a general rule, a delegate may not sub-delegate his/her authority, power or functions to another person, authority, body or agency. This rule is couched in the maxim ―Delegatus non potest delegare‖. In A. G. (Bendel State) vs. A.G. (Federation) (Supra), the Supreme Court held inter alia that, two houses of the National Assembly cannot delegate its law-making functions to a committee of the House. However, statute may provide for sub-delegation to certain persons and under certain condition. For instance, Section 10(2) of the NNPC Act, Cap NI23, LFN 2004 empowers the minister of petroleum to delegate to the alternate chairman or the chief executive of the petroleum inspectorate such powers as conferred upon him. Generally speaking, a delegate may sub- delegate duties that do not involve exercise of discretion such as:
1. Ministerial powers, which include the signing of letters, memorandum and instruction on behalf of the person delegating the power.
2. Executive or administrative powers, which involve issuing of license, permits, institution of legal proceedings, and so on. However, a delegate cannot sub-delegate the following functions or powers:
CONCLUSION
Delegated legislation is the law made by a delegated authority in exercise of powers to make the laws, which have been conferred by the constitution or other enabling laws. It is essential in a modern society for various reasons. Delegated legislation has its usefulness and disadvantages.
