SOME YEARS AGO,
an ARGUMENT raged BETWEEN THE SENATE AND HOUSE OF REPRESENTATIVES over which of
them was superior to, or supreme over, the other. The Senate
believed it had historical and philosophical standing to ‘superiority’ or ‘supremacy,’
as the Upper House, over the House of Representatives, the deemed Lower House. But the House of Representatives felt and believed
otherwise.
Since 1999, the Senate and
the House of Representatives of the National Assembly have been sparring on the
superiority or supremacy tussle. At the National Assembly’s enactment of the Niger
Delta Development Commission (NDDC) Act, the House of Representatives contested
but lost to the Senate the exclusive confirmation power of chairman and members
of the governing board of the Commission. The Senate reasoned that the Constitution
of Nigeria, since 1979, if not earlier, in the Parliamentary realm, of 1960 to
early 1966, granted it the power of confirmation, exclusive of the House of
Representatives, of Ministers and other confirmable national officers for the Government
of the Federation. The Senate argued that this grant of power ought to be
extended to similar officers of agencies of the Government, as ordained and
created by the two Houses of the National Assembly.
The Senate still does so believe.
The Senate’s claim for exclusive power of confirmation
of NDDC’s officers and many others, is unfounded, as it has neither federal constitutional origin nor is it within the threshold of federalist
praxis. The NDDC is not, per se, a national
agency, composed of national officers. It is a special remedial, ad hoc agency intended to
assuage longstanding crude oil-related environmental, economic and other
hazards and deprivations, in nine, out of the 36 states of the federation. The
duties of officers of the NDDC are not national,
but municipal, for the federal
government, and their duties are limited within the nine-state jurisdiction of
the NDDC, and not representative of the federation.
Officers of the NDDC are mere legislative officers of
the federal government, not of the
federation. The NDDC officers represent the federation’s power, vested in the
President of Nigeria and it can be divested of the President and vested
anywhere else, by an act of the legislature; or taken by the legislature and
vested in itself. The National Assembly can also shut down the commission,
anytime, as it deems necessary and proper, as the commission is a creation of
the legislature.
The
constitutional vesting in the Senate of confirmation power, for appointment by
the President of a national officer, is founded on longstanding
federalist presumption of maturity, wisdom and resilience
of the Senate as federal legislature’s purported Upper House. First of all, this Upper House, Lower House chasm of federal bicameral legislature, is a puerile
‘constitutional’ controversy I must dismiss here and now. The source of history
and usage of this Upper House, Lower House chasm, has no philosophical,
theoretical or constitutional origin; it is not supported by praxis of
presidential-bicameral federalism. But then, Nigeria has a surplus of
‘constitutional lawyers,’ and ‘constitutional commentators’, among them are jobbers
who goad the protagonists chambers onto such fight. And the National Assembly,
as a national institution, is starved of necessary and proper offices, of ‘federal
constitutional historian,’ ‘federal constitutional philosopher,’ or the like,
among its catacomb of committees, offices, etc. If the legislature had such
offices, experts of the offices would professionally guide the bicameral powers
on the history, philosophy and theory of the subject.
The controversy
of Upper House, Lower House, of the coequal federal
legislature, the Senate and the House of Representatives, is not, by nature, a
construction of constitutional superiority of one over the other. Associated
history of the notion is traceable to the purported “Great Compromise” between
small and large federating states in respect of state representation to the new
federal government of the United States, as envisaged by the 1787
Constitutional Convention delegates. The touted “Great Compromise” or
“Connecticut Compromise,” in honor of its architects, Connecticut delegates
Roger Sherman and Oliver Ellsworth, was of the effect that the newly proposed
United States Government would be composed of dual congressional
representation, of a Senate and House of Representatives. All the states of the
United States were to, and still do, have equal representation in the Senate,
but proportional representation, by population, in the House of
Representatives. After extensive debate, the 1787 framers of the United States
Constitution settled on two senators representing each state. But the
longstanding appellation, Upper House,
Lower House, of the Congress of the
United States, arose under exigent circumstances of chamber allocation of
Federal Hall, City of New York. The City of New York had served, in 1789, at the inaugural of the
new federal government, as temporary federal capital of the United States, with
the City’s Federal Hall as the Seat of the new federal government, before it
moved to Philadelphia, in 1790 and, finally, to Washington, D.C., in November
1800. Perhaps, brief account on how the Upper
House, Lower House peroration
came to be would here do.
On March 4,
1789, eight United States Senators overcame late winter travel conditions from
their respective states to reach the United States temporary capital, the City
of New York. Eleven states had by then ratified the Federal Constitution. Out
of the twenty-two eligible senators (two per state), the Senate needed twelve
present to achieve a quorum, to conduct legislative business. They could not do
so, until April 12, 1789, when quorum of twelve Senators was achieved. But at
the appointed hour for the government to begin, eight Senators-elect climbed
the stairs of City of New York’s old City Hall. In the hope of convincing the Congress
to make the City of New York the nation’s permanent capital, its leaders had
before the appointed date of March 4 named that building Federal Hall and tripled
its original size. When the eight Senators reached their elegant chambers on 2d
floor of the building, the Senate literally became the Upper House. In the Federal Hall, the House of Representatives was
located on the lower floor, which had more space, because they were far more in
number. From there, a tradition was born.
The Continental
Congress, under whose legal instrument the Constitutional Convention came to
be, and the Convention, itself, operated in secrecy. They created the Senate,
which operated in secrecy for some years, before opening its gallery to the
public, in 1795. The Senate opened its doors, not for its ‘love’ for the
public. After all, the Convention that in its image created the Senate, to actually
represent the states, as each senator was in the beginning of the federal
journey chosen by the legislature of his state, not necessarily to represent the people of the state, but
the state, felt that occasional publication of an official journal, with
information on how Senators voted on legislation and other matters, would be
sufficient to keep the public informed. And defenders, among senators, of
deliberative secrecy, looked with disdain on the House of Representatives,
where they believed members were tempted to play to a gallery of hissing and
cheering onlookers. Swanstrom, Roy, The United States Senate, 1787-1801;
A Dissertation on the First Fourteen Years of the Upper Legislative Body;
Senate Document 100-31, 100th Congress, 1st Session,
1988.
The people of
each state began to complain, loudly, that they could not effectively assess
their Senators’ behavior from outside a closed door. Individual Senators, who
looked forward to reelection, began to recognize that their legislative
positions could more easily win popular support at home if publicly aired.
Equally, the public was beginning to refer to the House of Representatives as both
‘the House’ and ‘Congress. Yet, only the rather innocuous location arrangement
in the City of New York, of two constitutionally equal Houses of the Congress
of the United States that brought about the historically resilient appellation,
Upper House, Lower House.
In deference to
settled rite of scholarship, inclusive of general commentary, this paper extends
credit to Billy Onoja, of the Department of Political Science, University of
Jos. On political idea of the Senate, in history, Onoja said in his letter to
Nigeria’s SUNDAY INDEPENDENT, April 9, 2007, “‘Senate’ is a derivative of the Latin word “Senex”, meaning ‘Old Man’,
which, when conjugated, becomes ‘Senatorum’…. It was from this Latin word that
the Roman government and law created their legislative institution, called
SENATE, which was a place meant for the Old Statesmen of the Roman Empire, to
apply their wisdom in tempering and cooling the hot laws of the Emperor and
other legal authorities, for the common good. That is why names like Cicero and
Mark Anthony, who were orators in the Roman Senate, still remain fresh in the
minds of present generation of scholars and politicians. The Nigerian Senate
will be ridiculing that institution if they continue their bread and butter
politics that led to the late [Chuba] Okadigbo calling some of his former
Senate colleagues ‘five-five kobo Senators.’” Perhaps, the structural
foundation of the Roman Empire, which reflected institutional resilience of its
Senate, could have insulated its Cicero’s and Mark Anthony’s from the comparative
five-five kobo deprecation, ground
underlying removal of Caesar; the removal not for pecuniary interest of movers
of his removal, but of and for Rome!
The framers of
the Constitution of the United States, the first recorded undertaking of
federalism, ordained the Senate to protect rights of individual states of the
federation and safeguard minority opinion in a system of government designed to
give greater power to untested national government, of legislative, executive
and judicial powers. The United States Senate was conceptualized and modeled on
governors’ councils of their colonial era and state senate that had evolved on
their Independence. Studious circumspection on individual profile and pedigree
of notable proponents of the Convention treatises on the Senate reveals that
the class distinction attached to the United States Senate, even as of that
Age, if not today, is, indeed, resplendent of whiffs of aristocracy of the English
House of Lords. Courts of Nobles, of supposed ‘old wise men,’ of European
kingdoms and empires of the American colonial Age, extended whiffs of their aristocracy
to American Constitutional Convention notions of the Senate, as continuing Body
of Nobles of the State. All this aristocratic hubris, ostensibly dichotomous of
the projected egalitarian reflexes of the Convention, got codified in the
original Constitution’s Article 1, Sec 3, toward protection of rights of the
states, and to secure their ratification of the emerging constitution. This
materialized in granting state legislatures the right of election of Senators
for the United States. But the original provision is altered by the 17th
Amendment, for their direct election, since 1913, by the people of the
respective states. Crook, Sara Brandes
and Hibbing, John R., “The 17th Amendment and Congressional Change,”
American Political Science Review 91 (Dec 1997).
Framers of the
United States Constitution intended the Senate to be independent Body of
responsible citizens, who would share power with the President. James Madison,
Virginia Delegate, explained in his Convention Notes that the Senate’s role was
“first to protect the people from their rulers [and], secondly, to protect the
people from the transient impressions into which they themselves might be
led.” He further explained that the
class distinction of the Senate with minimum age of thirty and term limit of
six years, as opposed to twenty-five years of age as minimum for House members
with two-year terms, were based on “the nature of the senatorial trust, which
requires greater extent of information and stability of character.” This would
allow the Senate, he said, “to proceed with more coolness, with more system,
and with more wisdom than the popular[ly elected House of Representatives].” The
Federalist No. 62.
Writing to
Thomas Jefferson, who had been out of the country, during the constitutional
convention, James Madison, one of the Convention’s foremost federalist
theoreticians, further explained that the Constitution’s framers considered the
Senate to be great “anchor” of the government. And to his framer colleagues, he
explained that the Senate would be the “necessary fence” against the
“fickleness and passion” that tended to influence the attitudes of the general
public and members of the House of Representatives.
On the payment
of salaries of members of the Senate of the United States, as envisioned by the
Constitution, several delegates suggested that the individual states should pay
the salaries. James Madison, in his indefatigable federalist orientation,
toward success of the new federal experiment, reminded his fellow delegates
that assumption by states of payment of salaries of United States senators
would destroy the principle that senators were to be “impartial umpires and
Guardians of justice and General Good.” He opined that senators were to reflect
national, as well as state, interests. Equally observed, by other Convention
Delegates, of Madison’s disposition on the issue, was that party politics of
state legislators might hold the Senate hostage, by withholding salaries of
‘politically recalcitrant’ senator from the state, to influence his voting
record in the Senate. In the end, the Convention resolved that Senators should
be paid salaries, but out of the treasury of the United States. In doing so,
the framers decided that it was moral and wise to leave the details, of how and
how much salary to be decided by the new incoming Congress. Kurland, Philip, B.
and Lerner, Ralph, The Founders’ Constitution, University of Chicago
Press, Chicago, 1987.
In pursuit of
the Madisonian “General Good” cause, early debates and drafts of the Convention
delegates, such as the Convention’s Committee of Detail, proffered vesting in
the Senate of the United States power to make treaties, appoint Ambassadors and
Judges of the Supreme Court. The debate on this issue was fierce. The
proponents of a deliberative Senate, of ‘wise men,’ had no intention of
residing their fate and posterity in the hands of a president, of executive
powers, they considered similar to suffocating imperial tutelage of the English
Crown, of their ‘indecent’ colonial past. This was, however, modified to share
these powers with the President, whereby the President nominates and appoints
national officers, but with the ‘advice and consent’ of the Senate. Even George
Washington, the Convention president and, later, the first President of the
United States, told Thomas Jefferson that the framers had created the Senate to
“‘cool’ House legislation, just as a saucer was used to cool hot tea.” And, by
his own foretelling, even though he could not have expected it, he suffered,
more or less, the fate of having experienced the Senate, not just “cooling” the
House of Representatives, but also the President.
To this end, it
is noted that when President Washington visited the Senate, in August 1789, to
consult with it on a recently negotiated American Indian treaty, he expected an
immediate response, under the Constitution’s ‘Advice and Consent’ of the Senate
in treaty making. To his great frustration, the Senate decided to refer the
issue for further but deliberative study, than just nodding to and rubber
stamping the President’s wish. After the President received Senate approval of
that treaty, he vowed never to again seek, in his person, the chamber’s advice,
as his request would be “cooled.” But the President’s expectation of
expeditious Senate ‘Consent’ to the treaty was borne of his conviction that it
was proper thing to do. After all, his Vice President, John Adams, was also
President of the Senate, as provided by the Constitution; a point the President
felt the Senate ought to or should have considered in giving expeditious approval
of the treaty, particularly of those early days of the Government. But the
Senate did not oblige to such ‘smooth talk’ of a “very big man” of the Government,
of his expectation of ‘expeditious approval.’ The Senate, however, did, with
its expeditious Confirmation of the President’s 1st cabinet
nomination, on September 11, 1789, barely a month following the “cooling,” of
Alexander Hamilton, as Secretary of the Treasury. It was incredible that
Hamilton’s confirmation was so quick the President’s messenger to the Senate
with the nomination’s instruments was on his way back to the Executive Office
of the President when the Senate announced the confirmation. What could not,
however, be gleaned, as the confirmation record did not show, was whether the
dispatch given to the confirmation was in deference to the President, who had
had highly privileged pedigree in the War of Independence, as leader of the
Constitutional Convention, and as inaugural President of the United States. Or
that the deference was to Alexander Hamilton, the nominee with confounding
intellectual power, as he demonstrated at the Convention and, as later
confirmed by econometrics scholars, the numerically greatest of authors of the
83 federalist treatises, known as the Federalist Papers.
The American
Constitutional Convention debates show that many of the notable delegates to
the Convention, such as Alexander Hamilton, James Madison, Benjamin Franklin
and others, shared aristocratic mien, in their individual ideas of the Senate.
Madison began his Senate suggestion with a nine-year term, reasoning that
longer senate terms would provide stability, that “if it not be a firm body,”
he concluded, “the other [House of Representatives] branch, being more
numerous, and coming immediately from the people (our emphasis), will
overwhelm it.” Virginia’s Edmund Randolph wanted a seven-year term and believed
the primary object of the Senate, the purported Upper House, was to control the more numerous and so called Lower House. New York’s Alexander
Hamilton wanted lifetime tenure for the Senate, in same fashion of England’s
House of Lords’ lifelong terms, in order to check the “amazing violence and turbulence of the democratic spirit” of the
House of Representatives. Benjamin Franklin believed the Senate should
represent the nation’s wealthy classes. This was to be to the effect that if no
salary were provided, only wealthy persons ought to serve in the Senate. He
even warned that if the Convention authorized salaries, the public might
suspect it of having “carved out places” for the younger delegates who would be
‘natural’ senators. It was remarkable that when the salary issue was put to
vote, Franklin’s salary proposal, for the Senate to be peopled by men of
wealth, barely lost. There were five states in favor of his proposal, against
six, reflecting the Era’s European aristocratic spirit of the constitutional
convention.
To put teeth to
their resolve to design the Senate as mainstay and bulwark of the
constitutional federal government, under their construction, the Convention
delegates, in giving Senators six-year term, caused them to be divided into
three, almost equal, groups. Article 1, Section 3, Clause 2. To put this into
effect, the United States Senate, on May 15, 1789, divided its members into
three groups, for purpose of elections. Under this arrangement, one-third of the
senators, as every member of the House of Representatives, stand for election
or reelection, every two years, even in a year of presidential election. This
design insulates two-thirds of senators from the risk of defeat at reelection,
as could happen to the House of Representatives, and the President. By this
arrangement, in accordance with the underlying philosophy establishing the
later day purported Upper House,
preserving its two-thirds at any election year that involves the House of
Representatives, and the President, the government of the federation would not
be decapitated of wisdom and experience in federal governance, if all were
defeated. The depth of statesmanship displayed, not only in the Convention’s
articulation, but its inaugural execution, with posterity in mind, in operation
of this constitutional engineering, is what is so striking and communicative of
altruism and honest service to the new nation state.
Apart from a six-year
term, the inaugural Senate divided its members into three parts, for election
in two-year cycles, with the effect that the first one-third group of senators submitted
to reelection in 1790, the 2nd
Congressional election year, after inauguration of the new federal
government, in 1789 (the inaugural senators were chosen or elected in late
1788, after ratification of the Constitution). Thus, when the next two-year
Congressional election cycle arrived in 1790, the Senators seeking reelection to
a full six-year term were just two years into their original six-year term. It
did not matter to members of that 2nd
group of senators that they, too, were sacrificing four of their original
six-year term of office, as some were defeated in the reelection attempt, or
left the senate, outright. The same situation applied to 3rd group of Senators,
two years later, in 1792 who conceded two years out of their respective six-year
term. By this constitutional arrangement, no one of the inaugural senators of
the United States completed his first six-year term of office.
In the carefully and
methodically crafted group division of United States Senators, for election,
then and now, no two senators from any state of the Union fall into same group.
This arrangement enables a state to retain, for seniority, one of its two senators,
in the event the other did not return.
Can Nigeria Constitution
framers and practitioners of government imbibe the exemplary conduct of theAmerican
Constitutional Convention delegates and the inaugural senators? In the present
case of ‘review’ or ‘amendment’ of the Constitution of Nigeria, with the entire
fracas attending it, it would be expected that the reviewers or amenders would
eschew transient, temporal and ephemeral interests, conscientiously look, deep,
at the Constitution and undertake to correct some of its fundamental defects
that derogate from good governance.
A fundamental
defect that derogates from good governance of the Nigerian Federation and of
the several states is the Constitution’s provision for total dissolution of all
legislative and executive branches, in the federation, every four years. It is
sophomoric, if not Neanderthal, to mandate the President, all governors of the
several states, all members of both the Senate and the House of Representatives
of the federal legislature, all members of the unicameral state legislatures; all
to stand for reelection, at same time. What if all were defeated at reelection,
as nearly occurred in the Nigerian general elections of 2003! Although the
courts and electoral tribunals have stepped in, to desegregate the stupefying
election crowding, starting with some of the governors of the several states.
For the federal
legislature, a constitutional amendment was required that would put into effect
one-third, or so, of members of the Senate to stand for election or reelection,
in two-year cycle. This would leave the other two-thirds, or as the case may
be, of the Senate, to remain and maintain institutional resilience, as is also done
by Federal State of Brazil. No three of the senators of each of the several
states shall stand for election or reelection at same time.
The same should
also apply to members of the House of Assembly of a state; a half of its
members may, at two-year interval of the constitutional four-year term of
office, be insulated from vagaries of election or reelection turbulence, in
order to secure some level of institutional integrity and continuity, with
seniority of some of its members, to guide the new arriving Young Turks, as resulting from election
turbulence, arising from Alexander Hamilton’s feared amazing violence and turbulence of the democratic spirit of the
people.
Another needed change;
Stanley Macebuh had opined, several times, in his undoubtedly philosophic
ruminations on affairs of the Nigerian State, the present ‘constitutional’
absence of bicameral legislature, for each of the several states of the
Nigerian federation, is a huge constitutional blunder.
Our foregoing
review of the founding and republican intent and purposes of the Senate, as
envisaged of design of the United States Constitution, origin of presidential-bicameral
constitutional federalism, gives support to dispositive preeminence of the
Senate, in protecting national security and state-federal harmony that is implicit
in senate confirmation and appointment of a national officer. As the
Constitution’s framers demonstrated, in apprehensions against stampede of
sweet-talk federalists, among them, into constituting any semblance of imperial
presidency, on the heels of their barely decade-old revolutionary disposal of their colonial yoke, a federal senate is
designed to be dedicatedly watchful over unbridled exercise of presidential
power. Many of the delegates to the America’s Confederate Constitutional
Convention, who designed the Senate as material component of federal
governance, even wanted to make the Senate as much as powerful as the
President, if not more powerful. This is particularly evidenced in the senate determination,
in exercise of its confirmation power, vested exclusively in it, of the suitability
of presidential appointment of a ‘national officer.’
As far as the Convention Delegates
were concerned, presidential appointment of a national officer of the United
States must pass through needle-eye scrutiny of the Senate. The teleological
introspection that informs constitutional vesting in the Senate of confirmation
power, for appointment by the President of a national officer, is
founded on longstanding federalist presumption of maturity, wisdom
and resilience of the Senate as federal legislature’s purported Upper House. First of all, on this
matter of Upper House, Lower House chasm of federal bicameral
legislature, it is dispositive a puerile ‘constitutional’ controversy I must
set forth and dismiss at dawn of this writing. On the matter, it might not be of
common knowledge to all concerned that
the source of history and usage of this Upper
House, Lower House chasm,
engendered by hubris and caprice of power, has no philosophical, theoretical or
constitutional origin; nor is it supported by praxis of presidential-bicameral
federalism. But then, Nigeria is a grand polity of surpluses of ‘constitutional
lawyers,’ and ‘constitutional commentators.’ Among them are jobbers who goad the
protagonists of the hubristic actors of the two federal legislative aisles onto
such fight. And the National Assembly, as a national institution, is starved of
necessary and proper offices, of ‘federal constitutional historian,’ ‘federal constitutional
philosopher,’ or the like, among its catacomb of committees, offices, etc.
