The limits of regulatory authority and the imperative of legislative clarity

Introduction

Nigeria’s ongoing tax reform process, including the enactment of omnibus tax statutes intended to replace and consolidate several existing tax laws, represents one of the most far-reaching fiscal restructurings in recent history. Given the breadth and systemic impact of these reforms, strict adherence to constitutional procedure, legislative authority and settled principles of administrative law is indispensable. These are just not matters of form; they go to the legitimacy of the law itself.

Recent public statements attributed to the Chairman of the Presidential Fiscal Policy and Tax Reforms Committee, suggesting that perceived defects or inconsistencies in the clear provisions of a gazetted Act may be addressed through regulations, had already raised concern within the legal and tax community. Those concerns have now assumed greater significance in light of both Mr Oyedele’s further explanation and the emergence of an ongoing investigation by the National Assembly into post-passage alterations of the tax legislation.

Mr Oyedele’s clarification and the problem it reveals

In his most recent public explanation, Mr Taiwo stated that he does not have access to the harmonised version of the tax legislation as passed by the National Assembly. He further indicated that this lack of access makes it difficult to ascertain whether the version currently gazetted accurately reflects what was approved by the legislature.

This clarification is legally consequential. If a key actor in the reform process is unable to independently verify the harmonised legislative text, then questions about discrepancies cannot be resolved by assumption, explanation or administrative interpretation. At that point, the issue ceases to be one of implementation detail and becomes a question of legislative authenticity.

Legislative Authority and the Role of the National Assembly

Under sections 4(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), legislative power for the Federation is vested exclusively in the National Assembly. That authority is neither shared with committees nor exercisable by administrative bodies through proxy. The Supreme Court has consistently affirmed that substantive law-making power is exclusive and non-delegable.

Once a bill has been passed by the National Assembly, assented to by the President and published in the Official Gazette, the legislative process is complete. The text so gazetted constitutes the law and is the only version recognised by the Constitution. However, this constitutional finality necessarily presupposes that the gazetted text is an authentic reproduction of the harmonised bill passed by Parliament.

Gazetting, authenticity and the current uncertainty

Publication in the Official Gazette is the act that confers legal force and public notice on legislation. Nigerian courts have consistently treated the Gazette as conclusive evidence of statutory law. However, the authority of the Gazette depends on authenticity. Where credible questions arise as to whether the gazetted text corresponds with the harmonised version approved by the National Assembly, that uncertainty strikes at the root of legality.

This concern is no longer speculative. The House of Representatives has formally constituted a Select Committee to investigate allegations of post-passage alterations to the tax legislation. The Committee’s interim findings suggest that certain provisions may have been inserted, modified or removed after legislative passage, raising serious constitutional questions as to validity.

In such circumstances, neither drafts, explanatory notes nor post-enactment assurances can cure the uncertainty. Only the legislature itself can conclusively determine what it passed.

Why regulations cannot resolve legislative defects

It is in this context that suggestions about using regulations to “correct” perceived defects become particularly problematic. Regulations are a form of delegated or subsidiary legislation. Their validity depends entirely on the enabling act, and Nigerian case law is settled that they cannot amend, override or contradict the clear provisions of an act of the National Assembly.

More fundamentally, regulations cannot be used to resolve doubts about whether the primary legislation itself accurately reflects legislative intent. Delegated legislation presupposes a valid and settled principal statute. It cannot be deployed to stabilise, legitimise or repair uncertainty at the level of primary legislation.

Institutional risk of proceeding amid legislative uncertainty

Proceeding with implementation while the National Assembly is actively investigating the legality and provenance of the gazetted acts carries significant institutional risk. It risks creating multiple competing “versions” of the law: one allegedly passed, another gazetted, and a third administratively interpreted. In tax law, where certainty is foundational, such fragmentation is untenable.

It also exposes taxpayers, administrators and the government itself to avoidable litigation, compliance disputes and enforcement challenges. Once implementation begins, unwinding actions taken under a statute later found to be defective becomes legally and practically complex.

The case for deferring implementation

In light of Mr Oyedele’s clarification and the ongoing legislative investigation, constitutional prudence points in one direction. Implementation of the new tax legislation should be deferred until the National Assembly concludes its inquiry and either confirms the authenticity of the gazetted text or takes corrective legislative action.

Deferring implementation is not an indictment of reform. Rather, it is a safeguard for reform. It protects taxpayers from uncertainty, preserves institutional credibility and ensures that when implementation begins, it rests on an unimpeachable legal foundation.

Conclusion

Nigeria’s tax reform agenda can only succeed if it is anchored firmly in constitutional legality. Where uncertainty exists as to whether a gazetted act faithfully reflects what the legislature passed, that uncertainty must be resolved by the legislature, not managed by regulation or administrative explanation.

No committee, however well-intentioned, can substitute for regulatory assurance or legislative certainty. The supremacy of the Constitution, the primacy of the National Assembly and the authority of an authentic Official Gazette are not obstacles to reform. They are the conditions that make reform lawful, credible and enduring.

Victor Athe is Partner – Tax & Strategy Services at Stransact.

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