Control of Administrative rule making

There are certain ways for the attainment of control of administrative powers which have been brought up based on necessity. As has been recognized by Nigerian scholars, the executive arm of government which handles administration holds a plethora of powers at the expense of other organs and so, if left unchecked, will tend to delve towards sheer abuse of power. The foregoing stated are the ways by which control of administrative powers can be attained:

1. Constitutional control

The constitution is not only the basic norm that gives force to all other legal norms, but is the supreme norm that renders any other legal norm null and void to the extent of its inconsistency with the constitution as provided in S. 1(1) and (3) of the 1999 constitution. Thus, any exercise of power by the administration that is not derivable from the constitution would be null and void. This principle has been reiterated by the court in several cases such as Fawehinmi v Babangida, where the Court held that the National Assembly could not enact a general law for establishment of Tribunal of inquiry.

Within the constitution also lies the concept of Separation of Powers that constrains each arm of government from encroaching on the powers and functions of the other arms of government. The courts consolidated this in the case of AG Federation v AG Abia State, amongst several other cases. The concept of Separation of Powers can be found explicitly in section 4, 5 and 6 of the Constitution. However, the same constitution recognizes the practice of rule making and delegation of powers to the Executive and the administration. For instance, section 315 confers power on the President to modify existing law in order to bring it into conformity with the constitution. See also section 32(1).

2. Executive Control

This is also known as internal control. Since it is the executive mostly vested with Rule making powers that determines when and how to exercise the powers, self-control by the administration must be inherently imputed into the whole process. The executive control starts with the creation and establishment of administrative MDAs to discharge the function of the executive, hence the power of establishment, appointment and dismissal. The power of the executive extends to control over the whole Public/Civil service and statutory bodies as constitutionally established for the Federal and State governments.

The Civil Service has the civil service rules that guides the internal operations of the Civil Service, and because of its constitutional status, it is held to be binding on the administration. The constitutional status of the civil service and the Civil Service commissions was confirmed in the case of Adekoye v NSP MC Ltd.

Also, control is achieved through the hierarchy established within the Executive in respect of the administration as specified in the constitution for the Federal and State governments. All personnel from the highest ranking of the President/Governor to the lowest ranking in the Public/Civil service, constitutes control mechanism for the exercise of rule making powers.

The executive also exercises supervisory control through some form of administrative adjudication by way of setting up of investigative bodies or tribunals to look into the exercise of the powers or complaints against the exercise of these powers.

3. Legislative Control

This is one part of external control. The legislature is vested with the law making powers which it delegates to the executive or administration to exercise on its behalf. It therefore stands to reason that the legislature retains the legislative powers not only to repeal, amend or revise the enabling law, but to control how the rule making powers are to be exercised substantively and procedurally.

The investigative power of the legislature guaranteed by the constitution (see section 88) serves as a control mechanism. The general requirement that subordinate legislation be laid before the legislature has also been variously used as a control and check mechanism by the legislature. There is also the use of legislative committee to supervise rule making and delegated legislation, which is one of the effective processes of legislative control.

4. Judicial Control

This is the other part of external control. Section 6(6)(b) of the 1999 constitution that extends judicial powers to all matters between persons or between government or authority and any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person, provides the most veritable control mechanism over rule making powers exercisable by the administration.

The primary basis of judicial control is the doctrine of ultra vires. This is in the sense that where the challenged exercise of rule making or delegated power is held by the court to be ultra vires, then such purported exercise of rule making powers would be declared null and void. Thus, where a subsidiary legislation is not in conformity with the enabling law as was in the case of NNPC v Famfa Oil Ltd, such legislation would be declared null and void. See the cases of INEC v Musa, Fawehinmi v Babangida, AG. Lagos v Eko Hotels.

Also, the courts apply the requirements of fair hearing and natural justice to control the administration in the exercise of rules making powers. The twin maxims of audi altarem patem (hear the other side) and nemo judex in causa sua (no man can be a judge in his own case) are usually applied for checking violation of fair hearing by the administration.