ADMINISTRATIVE AGENCIES
1.0 Introduction
2.0 Objectives
- Main Content
- Definitions of administrative agencies
- Powers and functions of federal agencies
- Statutory agencies
4.0 Conclusion
5.0 Summary
6.0 Tutor marked assignment
7.0 Further reading
INTRODUCTION
In the Units we have dealt with so far in this Module, we have freely referred to ‘administrative agencies.’ What is an administrative agency?
An administrative agency is a governmental authority in which the full paraphernalia of power – that is, legislative, executive, judicial, and quasi-judicial powers – resides. With governments the world over venturing into socio-economic and political activities that were hitherto mostly handled by individuals, there has been the need to create myriad of governmental agencies charged with the responsibility of implementing the projects and programmes of government
OBJECTIVE
At the end of this Unit, you will be able to:
- Define and describe an administrative
- Differentiate between constitutionalized agencies and statutory
- Appraise the powers available to Federal and State
MAIN CONTENT
Definition of Administrative Agencies
According to the US Federal Administrative Procedure Act 1946, an administrative
“agency means each authority … of the Government of the United States other than Congress, the courts.”
In other words, an administrative agency is constituted by the executive branch of government. You should note that the executive branch of government may be called an administrative agency because it implements the laws enacted by the legislature. Also, the executive arm may be so-called by virtue of the fact that there are constitutional provisions which expressly delegate power to it. Again, when an enabling Statute delegates power to an administrative agency, it is the executive that, in fact, inaugurates or empanels the administrative agency.
Kenneth Culp Davis has offered a more descriptive or functional definition of an administrative agency. According to him,
“Administrative agency is a governmental authority, other than a court and a legislative body, which affects the rights of private parties through either adjudication, rulemaking, investigating, prosecuting, negotiating, settling or informally acting.”
Another definition of administration agency is that:
Administrative agencies are lawmaking bodies with limited powers delegated by Congress. Administrative agencies specialize in specific issues that require expertise. Administrative agencies are established by Article 1 Section1 of the federal constitution which reads: “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” The “necessary-and-proper” clause in the eighth section of the Article 1 states that the Congress shall have power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers … in any Department or Officer thereof.” (http://system.uslegal.com/administrative-agencies)
You should note that an administrative agency may be called by different names such as a commission, board, authority, bureau, office, officer, administrator, department, corporation, administration, division, or agency. Also worthy of note is the fact that for agencies that are created by the constitution or whose existence is constitutionally recognized, their powers and functions are to be found in the Constitution itself. On the other hand, the powers or functions of statutory agencies are contained in the enabling Acts. It is this cluster of powers and functions – with which they affect the private rights and obligations －that make administrative agencies tick.
Administrative agencies are ubiquitous in the sense that they are found everywhere – at the Federal, State, and local government levels. And administrative agencies appear to be jacks- of-all trade – doing those things that all the other arms or branches of government can do. For example, they are, like the legislature, authorized to prescribe rules and regulations; to, like the prosecutors and judiciary, empowered to determine whether or not the law has been violated and to impose penalty as appropriate; and to, like the President of the country, confer privileges on persons or institutions they deem fit.
Powers and Functions of some Federal Administrative Agencies
As we have earlier observed, agencies could be created either by the Constitution or by Statute. In the former, the Constitution directly recognizes or creates some agencies and vest in them appropriate powers and functions. As far as the latter is concerned, the National Assembly creates or authorizes the creation of agencies when it delegates power to an administrative agency. Recall that since the National Assembly has the exclusive capacity to legislate on the 68 items contained in the Exclusive List of the CFRN 1999, it is potentially the greatest creator of administrative agencies. Note that the status of the agencies created by the CFRN and by Acts of the National Assembly differs. Such difference is a direct reflection of the discrepancy between the constitution and a statute. We will now discuss some constitutionalized agencies and statutory agencies.
S. 153(1) of the CFRN directly creates many agencies including, inter alia, the Code of Conduct Bureau, Federal Character Commission, Federal Civil Service Commission, Federal Judicial Service Commission, and the Independent National Electoral Commission. By virtue of S. 153(2), the composition and powers or functions of these bodies are contained in Part I of the Third Schedule to the CFRN. We shall look at them seriatim.
(a) Code of Conduct Bureau
The Code of Conduct Bureau, which consists of a Chairman and nine other members, is empowered in Paragraph 3 to:
- receive assets declarations by public officers;
- examine the declarations in accordance with the Code of Conduct or any law;
- retain custody of such declarations and make them available for inspection by any citizen of Nigeria on such terms and conditions as the National Assembly may prescribe;
- ensure compliance with and, where appropriate, enforce the provisions of the Code of Conduct or any law relating thereto;
- receive complaints about non-compliance with or breach of the provisions of the Code of Conduct or any law in relation thereto, investigate the complaint and, where appropriate, refer such matters to the Code of Conduct Tribunal;
- appoint, promote, dismiss and exercise disciplinary control over the staff of the Code of Conduct Bureau in accordance with the provisions of an Act of the National Assembly enacted in that behalf; and
- carry out such other functions as may be conferred upon it by the National Assembly
You should note that the nucleus of the duties of the bureau is the prevention and control of corruption amongst public officers. These officers are required to periodically declare their assets so that any accretion to their wealth can be justified or queried. The bureau does this against the background of the Code of Conduct for Public Officers (Part I, Fifth Schedule). Any violation is forwarded to the Code of Conduct Tribunal (Part I, Fifth Schedule) for necessary action.
(b) Federal Character Commission
Set up by Paragraph 7 of the Schedule, the Federal Character Commission in Paragraph 8 has power to:
- work out an equitable formula subject to the approval of the National Assembly for the distribution of all cadres of posts in the public service of the Federation and of the States, the armed forces of the Federation, the Nigeria Police Force and other government security agencies, government owned companies and parastatals of States;
- promote, monitor and enforce compliance with the principles of proportional sharing of all bureaucratic, economic, media, and political posts at all levels of government;
- take such legal measures, including the prosecution of the head or staff of any Ministry or government body or agency which fails to comply with any federal character principle or formula prescribed or adopted by the Commission; and
- carry out such other functions as may be conferred upon it by an Act of the National Assembly
(c) Federal Judicial Service Commission
Paragraph 12 of the Schedule establishes the Commission. It has power to:
- advise the National Judicial Council in nominating persons for the appointment of the Chief Justice of Nigeria (CJN), a Justice of the Supreme Court, the President of the Court of Appeal, the Chief Judge of the Federal High Court, a Judge of the Federal High Court, and the Chairman and members of the Code of Conduct Tribunal;
- Recommend to the National Judicial Council, the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph; and
- appoint, dismiss and exercise disciplinary control over the Chief Registrars and Deputy Chief Registrars of the Supreme Court, the Court of Appeal, the Federal High Court and all other members of the staff of the judicial service of the Federation not otherwise specified in this Constitution and of the Federal Judicial Service Commission
(e) Independent National Electoral Commission
The Independent national Electoral Commission (INEC) is in Paragraph 15 empowered to, inter alia, organize, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation; arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for election purposes. The Commission is also charged with the duty of registering political parties, and monitoring their organization and operation.
For a country like Nigeria that is still trying to find its democratic feet, the role of INEC cannot be overemphasized. The country has had the problem of electoral rigging every time elections are held with the latest being the 2007 elections that brought the different regimes at both Federal and States levels to power. You will recall that one of the reasons for Buhari and Atiku’s seeking judicial invalidation of the election of the late President Yaradua was because of the massive rigging that marked the elections. And Yaradua’s inauguration of the Uwais Panel was borne out of his desire to put in place a system that would guarantee that every vote counts.
SELF ASSESSMENT EXERCISE 1
- What is the meaning of an administrative agency?
- Examine the powers and functions of some agencies created by the CFRN
Statutory Agencies
In its capacity as the law-making arm of government, the National Assembly has enacted or is deemed to have enacted so many Statutes which authorized the establishment of administrative agencies. Such Statutes include the Economic and Financial Crimes Commission (EFCC) Act 2004, Independent Corrupt Practices Commission (ICPC) Act 2000, and NDLEA Act of 1989. Note that these statutes respectively established the EFCC, ICPC, and NDLEA.
Economic and Financial Crimes Commission (EFCC)
This is an anti-corruption, anti-money laundering agency established to combat corruption, money laundering and other financial crimes. It was established by the Federal Government in response to the external stimuli generated by the Financial Action Task Force (FATF) on Money Laundering. FATF had declared Nigeria to be Non-Cooperating Country or Territory (NCCT), that is, a country which inadequately provided against money laundering.
Some of the functions of the Commission under S. 6 of the Act includes the investigation of all financial crimes including advance fee fraud, computer credit card fraud, contract scam, etc; the coordination and enforcement of all economic and financial crimes laws and enforcement functions conferred on any other person or authority; and the adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crimes-related offences or the properties the value of which corresponds to such proceeds.
Additionally, S. 7 of the Act empowers the Commission to cause investigation to be conducted as to whether any person, corporate body or organization has committed an offence und e r the Act. Moreover, th e Commission i s empowered to cause investigations to be conducted into the properties of any person if it appears to the Commission that the person’s lifestyle and extent of the properties are not justified by his source of income.
In a country like ours where many persons have assets or wealth whose origin they cannot confidently disclose, the relevant provisions of the Act are salutary. The EFCC appears to have made some modest progress in its task of cleansing our corrupt system as manifested in the number of convictions it has recorded and, most important, the assets it has confiscated or forfeited. However, the EFCC appears not to be making use or good use of S. 7 as it tends to generally believe that its capacity to investigate a corruption allegation is dependent on the willingness of aggrieved members of the public to report to or petition the body.
Independent Corrupt Practices Commission (ICPC)
The setting up of the ICPC in 2000 was about the first attempt by the country to tame the hydra-headedness of corruption both in high and low places. Under S. 6 of the Act, the Commission has a duty to receive and investigate any report of the conspiracy to commit or attempt the commission of the offence of corruption.
As we can notice clearly, the ICPC predated the EFCC. The relationship between the two agencies is that while the ICPC focuses more on corruption generally, the EFCC concerns itself with particular aspects of corruption bordering on financial crimes. There are, however, cases of overlap in their functions. This has generated calls by some individuals for the government to rationalize the two agencies.
National Drug Law Enforcement Agency (NDLEA)
- 3 of the NDLEA Act 1989 provides for the functions of the NDLEA. Some of them are the:
- Adoption of measures to eradicate illicit cultivation of narcotic plants and to eliminate illicit demand for narcotic drugs and psychotropic substances with a view to reducing human suffering and eliminating financial incentives for illicit traffic in narcotic drugs and psychotropic substances;
- Adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from drug-related offences or property whose value corresponds to such proceeds; and
- With a view to ascertaining whether any person has involved in offences under the Act or in the proceeds of any such offences, to cause investigations to be conducted into the properties of any person if it appears to the agency that that person’s life style and extent of the properties are not justified by his ostensible source of income, taking such measures that may ensure the elimination and prevention of the root causes of the problems of narcotic drugs and psychotropic substances;
SELF ASSESSMENT EXERCISE 2
- Distinguish the powers and functions of the EFCC from that of the ICPC
CONCLUSION
In Nigeria, there are such agencies directly created or recognized by the CFRN unlike others which are the creation of Acts of the National Assembly. Some of these agencies are charged with responsibilities critical to the survival of the country. In this regard, the EFCC, the ICPC, and NDLEA are exemplary.
Administrative agencies are to be found in all sectors of the economy. In your environment, you should cultivate the habit of identifying such agencies and their functions and powers.
SUMMARY
In this Unit, we considered the meaning and description of administrative agencies, distinguished between agencies created by the CFRN and those established (or deemed to be established) by Acts of the National Assembly. With this, we close the discussion on administrative agencies and functions.
TUTOR-MARKED ASSIGNMENT
The status of Agencies created by the CFRN and Acts of the National Assembly is the same. Discuss.
REFERENCES/FURTHER READINGS
Bernard Schwartz Administrative Law (Toronto: Little, Brown & Co., 1976). CFRN 1999.
Kenneth Culp Davis, Administrative Law and Government (Minnesota: West Publishing Co., 2nd Edition, 1975).