Parliament vs Legislature: Conceptual Clarification

By Wukatwe Charles Wakji Esq

There are usually three arms of Government to wit: The Executive, The Judiciary and The Legislature or The Parliament. The Arm of Government that is responsible for law making is known as the Legislature or the Parliament.

The words “Legislature” and “Parliament” are often used interchangeably. However, whether it is called a Legislature or a Parliament, depends on a number of considerations which includes the Constitution of the country. This article, aims at clarifying these two concepts which have been used interchangeably but are however distinct. Even though they all refer to that arm of government that is responsible for law making and other functions, however, each has some distinct characteristics.

The distinction between a Parliament and a Legislature lies in the relationship between the executive and the law-making arm (Parliament/Legislature). Some of the distinctions are:

1. Parliament is usually associated with Parliamentary System of Government while Legislature is usually associated with Presidential System of Government.

1. Under the Parliamentary System of Government, the right to govern flows from an elected Parliament who then elects an effective Executive head called the Prime Minister from the majority party in the Parliament. However, under a Presidential System of Government, the people elect both the Executive head and the members of the Legislature.
2. The Parliamentary System has a Head of State (who is the Ceremonial Head) and the Head of Government (who is the Prime Minister elected from the majority party in the Parliament). However, the Presidential System has a President who is both the Head of State and Head of Government. He is elected by the people and not the Legislature
3. Legislature envisages separation of Legislative and Executive powers. However, Parliament envisages the fusion of both the Parliamentary (Law-making) and Executive powers
4. Members of the Parliament can at the same time be Ministers of Government. However, members of the Legislature cannot hold both positions at the same time. They must relinquish one. Section 147(4) of the 1999 Constitution of the Federal Republic of Nigeria provides that a member of the legislature appointed as a Minister of the Federation must vacate his seat in the Legislature.

The next issue I will want to deal with is whether Nigeria has a parliament or a legislature. From the above distinction, it is obvious that Nigeria has a legislature and not a parliament. Similarly, one of the ways to decipher this is to look at what the constitution of the country refers to it.

Section 4(1) of the 1999 Constitution of the Federal Republic of Nigeria, provides that

The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives.

Similarly, section 4(6) of the same constitution provides that

The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.

There is nowhere in the constitution whereby the National Assembly or a House of Assembly of a State was mentioned as a parliament and given parliamentary powers. Instead, they are given legislative powers. It will therefore be erroneous to refer to the National Assembly as a Parliament instead of a Legislature.

Even though Nigeria was colonized by the United Kingdom which practices parliamentary system of government and Nigeria at some point in its early years of independence practiced parliamentary system of government, it should however be noted that Nigeria now practices a presidential system of government via the 1999 Constitution.

It is of a great concern that even the National Assembly seem not to have understood the distinction between a parliament and a legislature. It will surprise you to know that some Acts enacted by the National Assembly of recent made use of Parliament to refer to the National Assembly instead of a Legislature. An example is found in section 27 of the Violence Against Persons (Prohibition) Act which was enacted in 2015. The section provides thus:

Only the High Court of the Federal Capital Territory Abuja, empowered by an Act of Parliament shall have jurisdiction to hear and grant any application brought under this Act.

This error whether it is that of the legislative drafter or that of the National Assembly, is an unpardonable error. The National Assembly ought to have known better and such should have been observed when the bill was going through the legislative process. This provision if challenged in court cannot stand.

It should also be noted that there are countries that have a mixture of both Presidential and Parliamentary System of Government wherein even though they operate a seemingly Presidential System, however a member of the Legislature can at the same time be a Minister of Government without vacating his seat in the Legislature (which is a feature of a Parliamentary System of Government). An example is South Africa.

In conclusion, even though the term “Parliament” can be used in its universal sense to refer to the law-making arm of Government, however, care must be taken in their usage as both do not mean the same thing.

Wukatwe Charles Wakji Esq. specializes in Bill Drafting, Bill Scrutiny and Analysis and Post- Legislative Scrutiny. He can be contacted via: charlzwakji@gmail.com