INTRODUCTION The interrelatedness of government affairs as well as the need for effective governance gave rise to the phenomenon of delegated legislation Although the doctrine of strict separation ID: 1029815
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1. ADMIN LAWDELEGATED LEGISLATION
2. INTRODUCTIONThe interrelatedness of government affairs as well as the need for effective governance gave rise to the phenomenon of delegated legislation. Although the doctrine of strict separation of powers abhors the idea of one arm of government overstepping its boundaries, it is impossible to maintain the doctrine strictly. Thus, the executive and judicial arms of government exercise powers ordinarily meant for the legislature and such exercise of powers is provided for by statute.
3. INTDThis topic would help students understand the importance and phenomenon of delegated legislation.
4. Delegated LegislationThe legislative, executive and judicial powers of state may be delegated, through statute to a person other than the primary repository of those powers, it is important to note here that the focus of this topic is delegated legislation.
5. DefinitionDelegated/subsidiary legislation refers to a piece of subsidiary legislation which is made pursuant to delegated authority. Thus, before the delegated legislation comes into life, the authority to do so must exist. For instance, s. 46 (3) of the CFRN empowers the Chief Justice of Nigeria to make rules for the enforcement of fundamental rights in High Courts. Consequently, Hon. Justice Idris Legbo Kutigi (rtrd) promulgated the Fundamental Rights Enforcement Procedure Rules of 2009; the precursor was made in 1979.
6. Delegated Legislation Ordinarily, where the power to make delegated legislation does not exist, the subsidiary legislation made thereafter becomes invalid. Thus, in A-G Bendel v. A-G Fed & 22 ors (1981) 1 All NLR 85, a law that was purportedly enacted by the Joint Finance Committee of both Chambers of the National Assembly without constitutional imprimatur was declared to be incompetent legislation by the Supreme Court and as such illegitimate, null and void. Where, however, the original repository of power ratifies the legislation, its validity becomes preserved.
7. Hierarchy of LegislationsAn enabling law, whether it is the Constitution or other statute, which donates power to a delegated authority to make law, towers above subsidiary legislations. Thus, if a subsidiary/delegated legislation conflicts with the parent law that delegated authority shall, to the extent of its inconsistency, be null and void. See NNPC v. Famfa Oil Ltd. (2012) 17 NWLR (pt. 1328) 148, 174 – 175.
8. Delegated Legislation: Condition PrecedentFor a delegated legislation to be birthed without defect, certain conditions must be taken into consideration. Thus, not all delegated legislations can stand the test of legitimacy. The conditions precedent are:Power must be delegableThere must be delegation of power;There must be proper delegation;Delegation of power must be to an appropriate authority.
9. Power must be delegableCore and solemn functions of organs of government cannot be delegated; especially those that require the exercise of discretion. The following functions cannot be delegated:Duties that have to be performed personally;Duties that involve the exercise of discretion;Judicial or quasi-judicial powers; andCore legislative functions.
10. There must be delegation of powerBefore a legislative power is exercised, the delegation of power must have been done. If there is no statute or instrument by which power is delegated, the action/legislation made thereafter shall be declared null and void and of no effect. See A-G Bendel v. A-G Fed & 22 ors (1981) 1 All NLR 85.This also applies to executive actions. See A-G Kaduna State v. Hassan (1985) 2 NWLR (pt. 8) p. 483 SC.
11. There must be proper delegationFor a delegation, in this context, to be lawful, it must fall within the contemplation of the parent legislation. Thus, in NNPC v. Famfa Oil Ltd, the Back-in-Right Regulation of 2003 which was made by a minister in disobedience to the provision of law was nullified by court and the right which he claimed under the illicit law failed. For further reading see Hilary Okoeguale, ‘Strengthening Legislative Controls Over Delegated Legislation in Nigeria,’ Nnamdi Azikiwe Journal of International Law and Jurisprudence Vol. 10 (2) (2019): 35.
12. Delegation must be to an Appropriate person/AuthorityDelegated power is expected to be donated to a person or authority that is appropriate. If the delegated authority is inappropriate, the legislation or act arising from delegated authority may be set aside by the court. See Nigeria Air Force v. James (2002) 18 NWLR (pt. 798) p. 295 SC.