Does the National Assembly Have Constitutional Powers to Summon Mr. President and to Penalize Noncompliance?
(by udems)
1)
A Memory Verse
“…the power of inquiry—with process to enforce it—is an
essential and appropriate auxiliary to the legislative function… A legislative
body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or
change; and where the legislative body does not itself possess the requisite
information—which not infrequently is true—recourse must be had to others who
possess it. Experience has taught that mere requests for such information often
are unavailing, and also that information which is volunteered is not always accurate
or complete; so some means of compulsion are essential to obtain what is
needed. All this was true before and when the Constitution was framed and
adopted. In that period the power of inquiry—with enforcing process—was
regarded and employed as a necessary and appropriate attribute of the power to
legislate—indeed, was treated as inhering in it. Thus, there is ample warrant
for thinking, as we do, that the constitutional provisions which commit the
legislative function to the two houses are intended to include this attribute
to the end that the function may be effectively exercised.[i]”
2)
Introduction
I had seen a news item on December 01,
2020, under the headline, "Insecurity: Reps summon Buhari over Borno
Massacre". Guardian Newspapers (Nigeria)[ii] had reported, inter alia,
thus:
"Adopting a motion under urgent matters of
national importance sponsored by Satomi Ahmed at the plenary presided by
Speaker Femi Gbajabiamila, the lawmakers insisted that President Buhari be made
to brief them on the true state of the security of the Nation".
Thereafter, on December 07, 2020, apparently
in response to the summons by the House of Representatives, Senior Special
Assistant to Mr. President on the Social Media, Ms. Laurette Onochie, tweeted,
as reported by the Guardian:[iii] "President
@MBuhari will address a joint session of the National Assembly (@nassnigeria)
on Thursday, December 10, 2020", thus, and happily, indicating Mr.
President's readiness to honour the House' summons. However, although as of the
time of this short opinion, the President has not indicated publicly that he
has changed his mind on the matter, yet some controversy has suddenly arisen
within Nigeria's legal community as to whether or not the National Assembly or
any arm of it, has powers to summon Mr. President. Strictly for purposes only
of contributing to the raging intellectual debate, I offer the following legal
opinion. My opinion is neither a call on Mr. President nor a call on the
National Assembly to commence an impeachment of Mr. President. My opinion as
herein-expressed, is just what I have said it is: an intellectual contribution
to an interesting legal debate. Besides, it may be useful here to refer to an
earlier explanation on why think aloud, legally:
"a
major duty legal researchers and rule of law campaigners owe society in the
practice of constitutional democracy for promotion and sustenance of
responsible and responsive governance is to constantly offer legal opinions on
issues of law to guide our leaders and institutions in the discharge of
leadership responsibilities".[iv]
3)
Relevant Provisions of the Constitution
a) Sections
88 (1)
& (2) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999
provides:
“(1) Subject to the provisions of this Constitution,
each House of the National Assembly shall have power by resolution published in
its journal or in the Official Gazette of the Government of the Federation to
direct or cause to be directed investigation into - (a) any matter or thing
with respect to which it has power to make laws, and (b) the conduct of affairs
of any person, authority, ministry or government department charged, or
intended to be charged, with the duty of or responsibility for - (i) executing
or administering laws enacted by National Assembly, and (ii) disbursing or
administering moneys appropriated or to be appropriated by the National
Assembly.(2) The powers conferred on the National
Assembly under the provisions of this section are exercisable only for the
purpose of enabling it to – (a) make laws with respect to any matter within its
legislative competence and correct any defects in existing laws; and (b) expose
corruption, inefficiency or waste in the execution or administration of laws
within its legislative competence and in the disbursement or administration of
funds appropriated by it”.
b) Section 89 (2)&(2)then provide:
“For the purposes of any investigation
under section 88 of this Constitution and subject to the provisions thereof,
the Senate or the House of Representatives or a committee appointed in
accordance with section 62 of this Constitution shall have power to - (a)
procure all such evidence, written or oral, direct or circumstantial, as it may
think necessary or desirable, and examine all persons as witnesses whose
evidence may be material or relevant to the subject matter; (b) require such
evidence to be given on oath; (c) summon any person in Nigeria to give evidence
at any place or produce any document or other thing in his possession or under
his control, and examine him as a witness and require him to produce any
document or other thing in his possession or under his control, subject to all
just exceptions; and (d) issue a warrant to compel the attendance of any person
who, after having been summoned to attend, fails, refuses or neglects to do so
and does not excuse such failure, refusal or neglect to the satisfaction of the
House or the committee in question, and order him to pay all costs which may
have been occasioned in compelling his attendance or by reason of his failure,
refusal or neglect to obey the summons, and also to impose such fine as may be
prescribed for any such failure, refused or neglect; and any fine so imposed
shall be recoverable in the same manner as a fine imposed by a court of law. (2)
A summons or warrant issued under this section may be served or executed by any
member of the Nigeria Police Force or by any person authorised in that behalf
by the President of the Senate or the Speaker of the House of Representatives,
as the case may require”.
c) Section 308 provides:
“(1)
Notwithstanding anything to the contrary in this Constitution, but subject to
subsection (2) of this section - (a) no civil or criminal proceedings shall be
instituted or continued against a person to whom this section applies during
his period of office; (b) a person to whom this section applies shall not be
arrested or imprisoned during that period either in pursuance of the process of
any court or otherwise; and (c) no process of any court requiring or compelling
the appearance of a person to whom this section applies, shall be applied for
or issued: Provided that in ascertaining whether any period of limitation has
expired for the purposes of any proceedings against a person to whom this
section applies, no account shall be taken of his period of office. (2) The
provisions of subsection (1) of this section shall not apply to civil
proceedings against a person to whom this section applies in his official
capacity or to civil or criminal proceedings in which such a person is only a
nominal party. (3) This section applies to a person holding the office of
President or Vice-President, Governor or Deputy Governor; and the reference in
this section to "period of office" is a reference to the period
during which the person holding such office is required to perform the
functions of the office”.
4)
The Discussion
As seen above, section 88 empowers the National
Assembly or any arm of it, to (as part of its oversight functions) conduct
investigations into any
matter or thing with respect to which it has power to make laws, and or into
the conduct of affairs of any person, authority, ministry or government
department in Nigeria. It is submitted that “any person”[v] includes
all persons and authorities in Government and all members of the executive arm,
including the President of the Federal Republic of Nigeria. This is because the
President is the leader among the persons or authorities in Nigeria, “charged,
with the duty of or responsibility for executing or administering laws enacted
by National Assembly, and of disbursing or administering moneys appropriated or
to be appropriated by the National Assembly”, as envisaged by the
Constitution.[vi]
Section
89(1)(c) empowers the National Assembly to issue “a summons” to any person
in Nigeria for purposes of appearing before the National Assembly to give evidence
or to produce any document for purposes of such investigations. However,
some Lawyers have argued that it is an abuse of powers for the National
Assembly to summon the President, because, according to them, “sections 88 and
89 of the Constitution do not apply to the President”[vii] of the Federal Republic
of Nigeria. They argue that the immunity granted to Mr. President under the Constitution[viii] forbids the National
Assembly from issuing any form of summons against Mr. President, because “summons
is a legal process of compulsion and compellability, disobedience to which
can be enforced by the Police and can lead to detention and imprisonment”,[ix] all of which, they say,
President is exempt from. I think the major planks of the submission by
this school of thought are that:
i)
the summons by the House is in the nature
of a court process, from which Mr. President is by virtue of section 308,
exempt; and
ii)
summons is a legal process disobedience
to which may lead to arrest and possible detention of the person so summoned and
who is disobeying, and since it's legally forbidden to arrest or detain Mr.
President, while he's still in office, it therefore follows that the National
Assembly is legally incapable of summoning Mr. President especially as there's
no means of enforcing Mr. President's compliance with the summons.
I agree that Mr. President cannot be
arrested or detained while in office and is not liable to answer to any court
summons during the period; more so in the present instance, especially because section 89 of the
Constitution applies “subject to the provisions of the Constitution”
while section 308 applies “notwithstanding anything to the contrary in this
constitution”.[x]
However, with due respect, it is possible
that proponents of this idea appear to not have adverted their minds to the
fact that there are other ways of killing a rat beside setting a trap for it,
and that the present situation may not be as clear-cut or as simple as they
have made it to appear, especially because the oversight powers of the National
Assembly (as a watchdog of the executive arm, headed by Mr. President) are
awesomely enormous and that in a proper democratic setting, disobedience to
summons issued in exercise of the powers of the National Assembly under such
circumstances is a serious constitutional issue. In the present instance, as an
example, the summons by the House of Reps is said to be specifically to get the
President to appear before the House “to brief them on the true state of the
security of the Nation”.[xi] Is it not a serious
matter if the President decides to shun such an invitation or summons by the
National Legislature at such critical time over such a major issue, especially
in view of the Constitutional injunction that “the security and welfare of
the people shall be the primary purpose of government"?[xii]
5)
Consequences of Disregard of Summons of
the National Assembly
a)
Impeachment:
It is respectfully submitted that although
the President is not liable to be arrested or detained under any circumstances,
yet ignoring the National Assembly under the present circumstances may have
some alternative serious lawful consequences. The process of impeachment is one
major (alternative) weapon the National Assembly could deploy towards punishing
a President who disobeys such summons. For the avoidance of all doubts, as I already
have made clear, I do not advocate that Mr. President be impeached; far from
it. Such is not even healthy, and thus not advised, in Nigeria especially in
view of the brittle nature of Nigeria`s multilanguage-and-multireligion-propelled
fledgling democracy. I am only relying on provisions of the law, to
make a contribution towards setting the law straight. The Constitution has set
out how the process of removing the President from office (impeachment) is
commenced:[xiii]
"Whenever a notice of any allegation in writing
signed by not less than one-third of the members of the National Assembly:
(a) is presented to the President of the Senate; (b)stating that the holder of
the office of President... is guilty of gross misconduct in the performance of
the functions of his office, detailed particulars of which shall be
specified".
Recall that the exact scope of the nature of the "gross
misconduct" for which Mr. President may be removed from office, has not
been precisely delineated by the constitution or by the courts. Such has been left
entirely to be determined by the "opinion" of the National Assembly.
Section 143(11) provides: ‘gross misconduct’ means a grave violation or
breach of the provisions of this Constitution or a misconduct of such
nature as amounts in the opinion of the National Assembly to gross
misconduct". In the celebrated case of Inakoju v. Adeleke,[xiv]
the Supreme Court of Nigeria affirmed this definition.
b) Withholding Proposals for Approval of
Funds Submitted by the President
Beside commencing a process of impeachment against Mr.
President, the National Assembly may, in reaction to any disobedience by the
President to its summons, withhold its approval to any subsequent fiscal proposals
presented to the National Assembly by Mr. President. This is similar to what
obtains in the United States of America. In answer to the question, “How strong
is Congress' power to oversee the executive branch”, Barrington Wolff of the University
of Pennsylvania Law School observed as follows:[xv]:
“Congress
can issue subpoenas to demand information from executive branch officials about
their actions and seek the assistance of the federal courts in enforcing those
subpoenas. Congress can, in extraordinary cases, withhold funding from an
office of the executive branch that it believes is abusing the public trust.
The appropriations power—the power to raise and allocate money—lies with
Congress, and that is a powerful tool if Congress chooses to use it. And, in
the most extraordinary cases, Congress can open impeachment
inquiries. Even when impeachment does not result in removal of an
executive or judicial officer—and, of course, a sitting president has never
been removed by conviction following impeachment—the impeachment process raises
the question of abuse of the public trust in a way that focuses the attention
of the nation”.
What is more? So much resources and funds
have been approved[xvi] by the National Assembly
for Mr. President over the past five years or thereabouts towards fighting and
containing rising/worsening insecurity in the country. Security sector budget rose
from about US$1.44 billion in 2009 to US$2.81 billion in 2018.[xvii]
Is
the National Assembly not morally and legally entitled, in exercise of its
oversight functions, to decide to conduct an inquiry/investigation into how
these funds, appropriated by it, have been disbursed or utilized, especially in
view of the fact that there appears to be only little or no sign that
insecurity is abating despite the huge funds deployed to fighting same? Besides,
it is no secret that military-led counterinsurgency operation in Nigeria faces
some notable challenges, in respect of which the National Assembly may need
some explanation from Mr. President during the proposed interface; hence the
summons.
6)
Effect of Section 308 on Powers of the
National Assembly Under Sections 88 and 89
Section 88(1) of the Constitution does
not mince words: "...each House of the National Assembly shall have power
by resolution published in its journal or in the Official Gazette of the
Government of the Federation to direct or cause to be directed
investigation into -
(a) any matter or thing with respect to
which it has power to make laws, and (b) the conduct of affairs of any
person, authority, ministry or government department charged, or
intended to be charged, with the duty of or responsibility for - (i) executing
or administering laws enacted by National Assembly, and (ii) disbursing or
administering moneys appropriated or to be appropriated by the National
Assembly."
Section 88(2) CFRN specifies the purposes
for which the National Assembly may embark upon such investigations:
"...for the purpose of enabling it to (a) make laws with respect to any
matter within its legislative competence and correct any defects in existing
laws; and (b) expose corruption, inefficiency or waste in the execution or
administration of laws within its legislative competence and in the
disbursement or administration of funds appropriated by it." And, for
the purpose of exercising its powers under section 88 CFRN, each house of the
National Assembly has powers to "summon any person in Nigeria to
give evidence at any place or produce any document or other thing in his
possession or under his control, and examine him as a witness and require
him to produce any document or other thing in his possession or under his
control..." It is respectfully submitted that "any person"
as used here includes Mr. President. And although, one may be right to suggest
that the President is not a compellable person generally, and may be shielded
by section 308 from the powers of the National Assembly under section 89(1)(d)
& s. 89(2) CFRN relating to warrant of arrest, fine, etc., yet the awareness
that section 308 cannot and does not protect Mr. President against invocation
or exercise of the powers of the National Assembly under section 143 CFRN,
should be sufficient warning to Mr. President that he cannot toy with any
invitation or summons of the National Assembly given pursuant to sections 88
and 89 CFRN, 1999.
7)
Section 308 Does Not Extend to Summons
Issued by The National Assembly Pursuant to Section 89 (1)(c) of the
Constitution
Section 308(1)(c) of the Constitution
exempting Mr. President from any "process" (including summons)
requiring or compelling Mr. President's appearance, does not apply to a summons
issued by the National Assembly or an arm of it; section 308(1)(c) relates to
only a "process of any court requiring nor compelling" Mr.
President's appearance. The National Assembly is not a court. And conduct of an
investigation[xviii]
by the National Assembly is not synonymous with exercise of judicial powers of
a Court of Law. By virtue
of Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, the
Judicial Powers vested in Courts shall extend to all matters between persons in
Nigeria, and to all actions and proceedings between government or authority and
to any person in Nigeria for the determination of any question as to the civil
rights and obligations of that person.[xix]
Accordingly, as was held per Karibi-Whyte JSC in the Attorney-General of
the Federation v. the Guardian Newspapers Ltd,[xx] “the
Legislature had no business to veer into the sphere of influence exclusive to
the Court as Constitutionally guaranteed without breaching the concept of
separation of powers as equally guaranteed by the Constitution”.[xxi]
Although the Legislature, by Section 129 of the Constitution may sometimes
exercise judicial powers, it is only when it acts in accordance with the
dictates of Section 168 of the Constitution, which is not the case herein.[xxii] The
National Assembly can only exercise oversight functions of investigating or
inquiring into any matter within its legislative competence and can only
exercise such powers for purposes of making a law correcting some mistakes in
an existing law or exposing corruption inefficiency or waste in the execution
or administration of laws enacted within its Legislative competence and in the
disbursement of funds appropriated or to be appropriated.[xxiii] See House
of Reps v. SPDC (Nig)[xxiv]
where the Court of Appeal observed as follows:
“In McGvain v. Daugherty 273 U.S. (1927)
the United State Supreme Court settled the question of the right of the U.S.
Congress to conduct investigations when it said that: "The power of
Congressional inquiry with the process to enforce it is an essential and
appropriate ancillary to the legislative function." Also in Walkins v.
United States, (1957) U.S. 17, the United States Supreme Court said that:
"The power of the Congress to conduct investigations is inherent in the
legislative process." See also Anderson v. Dunn 19 U.S. 204 (1821). Under
the 1999 Constitution of the Federal Republic of Nigeria, Section 88(1)(a)
& (b) confer on the National Assembly the power to conduct investigation
into any matter or thing with respect to which it has power to make laws as
well as into the conduct or affairs of any person, authority, ministry or
government department charged or intended to be charged with the execution or
administering such laws made by the National Assembly as well as disbursement
or administering moneys appropriated or to be appropriated by the National
Assembly.”
Finally, on this, it appears the makers
of the Constitution had, in drafting the provisions of section 308, wisely
refrained from extending the coverage of such processes to summons issued by
the National Assembly so as to not frustrate the oversight functions of the
National Assembly (under to sections 88 and 89 of the Constitution) aimed
partly at checking the conduct of the affairs of the nation by Mr. President.
8) Are Summons Issued Pursuant to
Section 89 In the nature of Court Summons?
For the following reasons, in
addition to the aforesaid,
I respectfully disagree with the view
that the summons issued by the House of Representatives pursuant to section 88
and 89 of the CFRN, 1999, is in the nature of a court/judicial summons. First,
the national Assembly is not a Court of law. The constitution creates courts of
law which fall within the judicial arm of the government; the National Assembly
represents the legislature, not the judiciary and their powers are not judicial
powers. Second, the makers of the Constitution had deliberately inserted
section 89(1)(c) CFRN to empower the National Assembly to summon any person;
“any person” excludes no one. Third, section 308(1)(c) CFRN which exempts Mr.
President from “processes”, specifically and strictly covers only processes of "any
court requiring or compelling the appearance of" Mr. President; it
doesn't extend to a process (say, a summons) issued by the National
Assembly. Further, in A.G Federation V. Abubakar,[xxv]
the Court of Appeal took time to explain the scope and limits of the
immunity afforded to the President of the Federal Republic under the
Constitution. It is obvious from the court`s pronouncement that summons issued
by the National Assembly pursuant to its investigative powers under sections 88
and 89 of the Constitution are excluded. The words of sections 308(1)(c) leave no on one in doubt
that section 308 does not extend beyond summons from courts and other judicial
bodies. The
court said:[xxvi]
“The immunity under Section 308 of the
Constitution prohibits every civil and criminal proceeding against the
President, Vice-President, Governor and Deputy Governor notwithstanding and/or
regardless of the Court where the prosecution takes place, whether it is before
a Court of law established by Section 6(5) of the Constitution or a Tribunal
established by Paragraph 15(1) of the Fifth Schedule to the Constitution, with
the features of a Court and performing the duties of a Court.”
Moreover, it appears,
the
“Expressio unius est exclusio alterius” Rule of Statutory Interpretation
is relevant here; the rule states that the express mention of one thing in a
statute excludes all other things not mentioned therein. This is illustrated by
the case of R v Inhabitants of Sedgely.[xxvii] The “Noscitur a
sociis” Rule appears also relevant; it postulates that “words (used in a
statute) have no meaning except in the context they are used".[xxviii] The meaning of an
enactment must be ascertained from its text, in light of its purpose and in its
context. The legislature must be taken in a statute to have said exactly what
it means, and also to mean in a statute exactly what it has said therein. It
therefore goes without saying that interpretation of a word or expression must
depend on the text and the context. In People v. Jefferson,[xxix] the California
Court of Appeals, 4th District, USA, observed that the role of the courts in
construing a statute is to ascertain the intent of the Legislature so as to
effectuate the purpose of the law. Also, according to the Court of Appeal of
the US state of Indiana,[xxx] “the first and often
last step in interpreting a statute is to examine the language of the statute”.
Indeed, the statutory test should be both
the ending point as well as the starting point for interpretation.[xxxi] This is because, words are the skin of the
language, while language is the medium of expressing the object that a
particular provision or the Act seeks to achieve. Accordingly, to find the real
intentions of the drafters of a statute, regard must be had to the context,
subject-matter and object of the statutory provision in question. Courts and
jurists achieve this by carefully analyzing the whole scope and provisions of
the statute or section relating to the word or phrase under consideration.[xxxii] All in all, all approaches to statutory
interpretation start (if not necessarily end) with the language and structure
of the statute itself.[xxxiii] This is because the
language and provisions of a statute are the most reliable indicator of the
intent of the makers of the statute.[xxxiv] Then comes Thomas
Jefferson`s counsel:
“On every question of construction [of the Constitution] let us carry
ourselves back to the time when the Constitution was adopted, recollect the
spirit manifested in the debates, and instead of trying what meaning may be
squeezed out of the text, or intended against it, conform to the probable one
in which it was passed.”[xxxv]
As
pointed out by Oputa, JSC,[xxxvi] “here in Nigeria, even
under a Military Government, the law is no respecter of person, principalities,
government or powers…” The rule of law requires that every person is subject to
the ordinary law within the jurisdiction.[xxxvii] Rule of law is the
predominance that is absolute of an ordinary law over every citizen and
institution regardless of status, position, power; the people (including the
President of the Federal Republic) must be subject to, ruled by, obey and be
accountable to, the ordinary laws of the land.[xxxviii]
9)
The Proper Course Open Mr. President Where
Mr. President Thinks the National Assembly Lacks Powers to Issue Summons
Against Him?
There must be some mutual respect among the
various arms of Government. Although I hold the respectful view that the President
is obliged to honour a summons properly issued by the National Assembly
pursuant to sections 88 and 89, nevertheless, where the President or his
advisers think that the National Assembly has acted ultra vires in issuing
summons on Mr. President to appear before, and or to come and address, the
National Assembly, on the security situation in the country, the proper course of
action open to the President is not to shun the National Assembly or to disregard
the invitation/summons. The proper course under such circumstances is to
approach a court of law with a request that such actions of the National
Assembly or an arm of the National Assembly, be struck down for being
an abuse of the powers of the National Assembly under the Constitution. This
would show that the Mr. President treats the National Assembly with the respect
the latter deserves. In INEC
v. Musa,[xxxix] the
Supreme Court counselled thus:
"The
supremacy of the National Assembly is subject to the overall supremacy of the
Constitution. Accordingly, the National Assembly which the Constitution vests
powers cannot go outside or beyond the Constitution. Where such a situation
arises, the courts will, in an action by an aggrieved party, pronounce the Act
unconstitutional, null and void. See A.-G., Abia State v. A.-G Federation
(2002) 6 NWLR (Pt. 763) 264."
10)
Would
Mr. President`s Honouring House Summons Lead to Public Exposure of Classified Security
Information
May I start this segment by respectfully submitting
that there appear to be no reasons for us to pre-emptively suppose or conclude
that the President honouring the summons issued by the House of Representatives
might involve Mr. President in exposing any classified information relating to
public security, public defense, public safety or of any matter in respect of
which it would not be in the interest of the public to publicly disclose. From publicly
available information since December 01, 2020, it appears the sole purpose of
the House Summons was/is to get Mr. President to address the House of
Representatives on the worsening security situation in Nigeria. I humbly do not
see how that would involve Mr. President in publicly disclosing any classified
public information. Besides, the House of Representatives asked Mr. President
to come and address it, and not to come and take questions from it. So, with
due respect, it may be interpreted as speculative and pre-mature for anyone to
already conclude that the purpose of the summons is to get the President to
publicly disclose classified security information. And, from the President`s
response on December 07, 2020, it appears that Mr. President perfectly
understood why he was being summoned, and also that it had little or nothing to
do with public disclosure of classified security matters; hence, in his
acceptance speech, he had gladly offered to address a joint session of the two
Houses of the National Assembly, instead of only the House of Representative.[xl] Besides, when (that is, if) the President
honours the summons/invitation, and after delivering his address to the
National Assembly, Mr. President is not under any obligation to answer any
questions from any Senator or Honourable Member, if he (the President) thinks such might lead
to his disclosing any classified security information. Further, assuming, but
not conceding, that honouring the summons would lead to public disclosure of
classified security information, one may choose to borrow a leaf from the
provisions of section 36 (4) (b) of the CFRN, 1999 relating to how to deal with
such a scenario in a court proceeding:
“if in any proceedings before a court or
such a tribunal, a Minister of the Government of the Federation or a
commissioner of the government of a State satisfies the court or tribunal that
it would not be in the public interest for any matter to be publicly disclosed,
the court or tribunal shall make arrangements for evidence relating to that
matter to be heard in private and shall take such other action as may be
necessary or expedient to prevent the disclosure of the matter”.
Although the National Assembly is not a
court of law, there is no harm in borrowing a leaf under such circumstances to
exclude members of the public from its proceeding if there is need to take any
document or information from Mr. President that may involve public disclosure
of such sensitive matters. And just as a court of law reserves powers to
exclude members of the public from its proceeding in deserving circumstances,[xli] the national Assembly,
at the request of the President of the Federal Republic, may just borrow a leaf
and do the needful to secure any such sensitive material. The bottom-line is that, the National Assembly
members, accredited representatives of the Nigerian people, representatives of
the 360 Federal Constituencies and the 109 Senatorial Districts, in Nigeria,
are entitled, at their request, to be addressed by Mr. President, and to have
detailed/comprehensive updates from the horse`s mouth on the currently
worsening security situation in the country. This would additionally place the
National Assembly in a better stead to (1) offer explanations to the various
constituencies and senatorial districts they represent; and (2) to help the National
Assembly to fashion out a better approach to adopt in taming the monster called
insecurity in Nigeria: is to make new
laws, or to amend existing ones; is it to appropriate more revenue to cut down
on amount of revenue being pumped into the crusade against insecurity; is it to
create more institutions or to enable or otherwise increase the powers of
existing ones; or is it to cover noticed loopholes (if any), including maybe an
overhaul of the security apparatus, in order to reinvigorate the war against
terror and insecurity.
In summary, therefore it is respectfully
submitted that neither the provisions of section 308 of the Constitution nor
fear of possibility that classified security information may be publicly
disclosed, nor any other fear of the unknown entitles Mr. President to ignore
or otherwise disobey a summons validly issued by the National Assembly under sections
88 and 89, CFRN. The Constitution has armed the National Assembly with sufficient
(alternative) routes through which any noncompliance with such summons could be
punished. But I am happy Mr. President (as reported) accepted to honour the invitation/summons.
All in all, it boils down to this famous wise saying:
“a place for everything and everything in its place.”[xlii]
In the meantime, speaking generally, and borrowing from Alan Watts, “By
replacing fear of the unknown with curiosity we open ourselves up to an
infinite stream of possibility. We can let fear of the unknown rule over our
lives or we can become childlike with curiosity, pushing our boundaries,
leaping out of our comfort zones, and accepting what life puts before us”. Following
the counsel that we should learn to do the very thing we are afraid of,[xliii]
Lilian Russel once declared that what one does with that fear is what will make
all the difference in the world.
Just thinking aloud, legally.
Respectfully,
Sylvester Udemezue (udems)
08109024556, [email protected]
End
Notes
[i]
per Justice Van
Devanter, in McGrain v. Daugherty, 273 U.S. 135, 174–175 (1927), cited in
[ii]
<https://guardian.ng/news/insecurity-reps-summon-buhari-over-borno-massacre/
accessed 10 December 2020
[iii]<https://guardian.ng/news/buhari-to-address-national-assembly-on-thursday/>
accessed 10 December 2020
[iv]
see: Udemezue,
Sylvester, 'The Place For “Kick-Backs” & “Bribes” In Our Efforts To Kick
Back Corruption & Kick-Start Responsible Governance In Nigeria (A Legal
Opinion)' (The Nigeria Lawyer, 23 October 2018)
<https://thenigerialawyer.com/the-place-for-kick-backs-bribes-in-our-efforts-to-kick-back-corruption-kick-start-responsible-governance-in-nigeria-a-legal-opinion-by-sylvester-udemezue/>
accessed 10 December 2020.
[v]
as used in section 88(1)(b) (supra)
[vi]
section 88 (1)(b)(i)&(ii) of the Constitution
[vii]
See for example, Ojukwu, Ernest Prof., ‘House
of Reps has no powers to summon President Buhari under sections 88 and 89 of
the Constitution- Prof. Ojukwu’ (BarristerNG, 10 December 2020) < https://www.barristerng.com/house-of-reps-has-no-powers-to-summon-president-buhari-under-sections-88-and-89-of-the-constitution-prof-ojukwu/> accessed 10 December 2020.
[viii]
S.308
[ix]
Ojukwu, Op. Cit.
[x]
See section 308(1) and section 88(1)
[xi]
The Guardian, Op Cit (n ii)
[xii]
section 14(2)(b) CFRN,
1999.
[xiii]
Section 143(1)
(a)&(b) of the CFRN, 1999
[xiv]
See also the case of Inakoju
& Ors V. Adeleke (2007) LPELR-1510(SC), per Musdapher, J.S.C (p. 176,
paras. C-E
[xv]
Udemezue, Sylvester, ' U.S. president vs. congressional investigators: How the
battle of the branches could play out' (University of Pennsylvania)
<https://link.springer.com/article/10.1057/s41284-020-00234-6 > accessed
10 December 2020
[xvi]
See for example
Buhari ‘Withdraws $462 Million From Excess Crude Account Without
National Assembly Approval’ (https://www.premiumtimesng.com/news/top-news/265969-buhari-withdraws-462-million-from-excess-crude-account-without-national-assembly-approval.html accessed 10 December 2020)
[xvii]
Onuoha, F.C. et al., '
Counterinsurgency operations of the Nigerian military and Boko Haram
insurgency: expounding the viscid manacle' (Springer Nature Switzerland, 17
February 2020) <
https://link.springer.com/article/10.1057/s41284-020-00234-6> accessed 10
December 2020
[xviii]
pursuant to section 88
CFRN
[xix]
Ogunmokun v. Mil. Admin Ogun State (1999) 5 NWLR (594) 251 and P.P.M.C. Ltd V.
Delphi Pet (2005) 8 NWLR (Pt 928) at 458.
[xx] (1999) 9 NWLR (Pt.618) at 187 particularly at
237 para. H
[xxi]
See also Chevron
(Nig) Ltd V. Imo State House of Assembly (2016)
LPELR-41563(CA)
[xxii]
Ibid
[xxiii]
Ibid. See also Olafisoye V. Federal Republic of Nigeria (2004) 4 NWLR
(Pt. 864) 580 at 597; Ogunmokun V. Mil. Admin Osun State (supra), P.P.M.C. Ltd
V. Delphi Pet. (supra); SPDC V. Isaiah (2001) 11 NWLR (Pt.723) 179 paras, E- H
and 180 - 181 paras, A- E Per Mohammed, Belgore and Wali, JSC (as they were);
who held on the authorities of Barry & 2 Ors. v. Obi A. Eric & 3 Ors.
(1998) 8 NWLR (Pt. 562) 404 at 416; The SPDCN Ltd. V. Otelemaba Maxon &
Ors. (2001) 9 NWLR (Pt. 719) 541, Uwaifo v. A-G. Bendel State (1982) 7 S.C.
124; (1983) NCLR 1; Din V. A-G. Federation (1986) 4 NWLR (pt. 87) 147 and A-G.
Lagos State V. Dosunmu (1989) ALL NLR 504 (1989) 3 NWLR (Pt. 111) 352
[xxiv]
(2010) LPELR-5016(CA)
[xxv]
(2007) LPELR-8995(CA)
[xxvi]
Ibid, Per ABOKI, J.C.A (pp. 22-44, paras. B-D )
[xxvii]
(1831) 2 B & Ad 65
(UK)
[xxviii]
See Inland Revenue v
Frere [1964] 3 All ER 796
[xxix]
(1999) 21 Cal.4th 86,
94 [86 Cal.Rptr.2d 893, 980 P.2d 44
[xxx]
In Ashley v. State, 757
N.E.2d 1037, 1039 , 1040 (2001)
[xxxi]
See
<see:https://www.everycrsreport.com/reports/97-589.html> accessed 10
December 2020
[xxxii]
Rao, S., “External Aids
to Interpretation of Statutes: A Critical Appraisal,” published
on ww.ssrn.com, accessed 10 December 2020
[xxxiii]
everycrsreport, Op Cit
[xxxiv]see: People v. Lawrence
(2000) (US) 24 Cal.4th 219, 230 [99 Cal.Rptr.2d 570, 6 P.3d 228]; See also
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002)). See also: Udemezue,
Sylvester, 'Role of Internal & External Aids In Statutory Interpretation: A
Disquisition On Legitimateness Of “Jurisdictive Discretion”'
[xxxv]
Finkelman, Paul, ‘Encyclopedia of American Civil Liberties’ (Routledge, 2006) https://books.google.com.ng/books?id accessed
10 December 20220
[xxxvi]
In Military Governor of
Lagos State v. Ojukwu (1986) LPELR-3186(SC)
[xxxvii]
Garner, B, In: Black’s
Law Dictionary (9th ed., Thomson Reuters, 2009) 1148
[xxxviii]
Geoffrey de Q. Walker,
The rule of law: foundation of constitutional democracy, (1st Ed., 1988
[xxxix]
(2003) LPELR-24927(SC), per
Tobi, J.S.C (p. 100, paras. A-C)
[xl]
See endnote iii (supra)
[xli]
See the CFRN, 1999, s. 36(4)(a).
[xlii]
Per Benjamin Franklin
[xliii] Raph Waldo Emerson
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