As usual, the Attorney-General of the Federation and Minister of Justice, Abubakar Malami, SAN, has thrown the media into frenzy with his statement that the National Assembly lacks power to summon president Buhari over his “operational use of the armed forces” adding that “summoning the President on National Security operational Matters, the House of Representative operated outside constitutional bounds.” According to Malami, appearing before NASS is “inherently discretionary in the President and not at the behest of the National Assembly”.

Malami’s position completely obviously overlooked Sections 217, 218, 219 and 220 of the Constitution which render operational use of the armed forces subject to the powers of the National Assembly. The NASS decides the establishment, composition, command and operational use of the armed forces.

To be more precise, Section 218(4)(a) of the Constitution provides that “the National Assembly shall have the power to make laws for the regulation of the power exercisable by the President as Commander-in Chief of the Armed Forces of the Federation” hence, the current Armed Forces Act.

Furthermore, sections 88 and 89 of the constitution empowers NASS to invite or summon “ANY PERSON IN NIGERIA” to answer questions relating to areas within its legislative competence and for the purpose of enabling it to “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” Is Malami saying that President is not a “person in Nigeria”?

With profound respect, the argument in some quarters that summoning the President as required by section 89 of the constitution will run contrary to the immunity clause in section 308 of the constitution is beside the point. The reason why court held that Fayose could be subpoened by court to give evidence irrespective of his immunity in A.D v. Fayose (No 1) (2004) 26 WRN 34 is similar to the very reason why Malami’s argument that Nass lacks power to summon Buhari ought to fail. The reason is that both election petition and NASS investigation are provided by the same constitution so they bought constitute exception to the immunity clause. In fact, legislative investigation has Upper hand because unlike election petition, NASS is not even a court as mentioned in section 308 of the Constitution. If election petition which involves court can be exception to immunity, how much more the NASS proceedings which is not a court?

Assuming for a moment that the other legal of the argument that Nass lacks power to compel attendance of Buhari is correct, same cannot automatically mean that they lack power to summon the president. The power to summon is one thing and power to compel attendance is another. They are mutually exclusive. One cannot override the other. Even the US whom we modelled our constitution after, their Congress have many times summoned the US president.

Since his assumption of office in 2015 as AG and Minister of Justice, Malami has been raising one controversy or the other. Not long ago, while reacting on the EndSars Lekki incidence, Malami said “hoodlums”  wearing military uniforms may have shot Nigerian protesters campaigning against police brutality and even added that said it was “pre-emptive” to conclude that there had even been Shootings in the first place.

In a related development, Malami discarded a report of the National Human Rights Commission (NHRC) which indicted and recommended prosecution of 33 SARS operatives for various rights violations including, extrajudicial killing, death in police custody, unlawful arrest, biased investigation, unlawful intimidation, harassment, criminal assault, torture, cruelty, inhuman and degrading treatment, threat to life, extortion and confiscation of property, among others. NHRC debunked claim of the AGF that there are no sufficient evidence for the prosecution of the indicted officers.

There are allegations in the media against Malami of shielding 10 soldiers who allegedly killed three police officers and two civilians in Taraba to aid the escape of a kidnap kingpin, Bala Hamisu popular known as Wadume, from police custody. Malami has dropped charges against all the 10 soldiers.

It may be recalled the same Malami just of recent unilaterally ‘purportedly’ amended the Rules of Professional Conduct for Legal Practitioners in gross violation of the Legal Practitioners Act which gives such power to the General Council of the Bar.

Apart from the foregoing, Malami has serially defended Buhari’s disobedience to court orders. He supported the rearrest of Dasuki even when court granted Dasuki bail. He justified it on the basis that Dasuki’s ”personal right can be violated for the larger public good.” He accused Dasuki of being responsible for more than 100,000 deaths.

Even when Dasuki and Sowore were released from detention, Malami insisted that Nigerian government released the duo from detention as an ‘act of mercy’.

Malami has also been fingered in numerous attempts to shield Abdulrasheed Maina from being prosecuted by the Economic and Financial Crimes Commission on suspicion of embezzling billions of naira as Chairman of the Pension Reform Task Team. Malami was not only alleged to have met Maina at some obscure location in Dubai in the dead of night. At a point, upon hearing that the National Assembly was investigating Maina, Malami rushed an “ex parte” (without notice to the other side) application to the court to halt the investigation. Thankfully, the court refused and insisted that the National Assembly be properly put on notice of his brazen action.

The “sins” of Malami as Attorney-General of the Federation are too numerous to be counted. Of course the Head of the judiciary, Onnoghen CJN was disgraced out of office under his very watch as Chief Law Officer of the Federation.

It is our suggestion that the learned silk should strive to have his name written in gold as AGF, not otherwise. Agreeably, he is political appointee exercising delegated authority as determined by his appointor – the President, however, his commitment should strictly be to the rule of law and overall interest of the citizens. After all, in saner climes a political office holder resigns if his conscience doesn’t approve things he is assigned to do or if he fails the citizens.

Security situation of the country is bad. Advising the number one citizen of the country to dishonor invitation by members of the National Assembly who are elected representatives of the people doesn’t speak well of him as AGF. We have enough anarchy in the country already; we do not need to extend the frontiers of anarchy by allowing advising government not to give account to the people.

Refusing to honour invitation of the NASS by Buhari is a gross violation of the constitution. We so submit!

Musa Ansa writes from New york

By Rilwan Saidu Salihu

Amidst the wave of controversies arising from the position taken by the Attorney General of the Federation ( Abubakar Malami, SAN), as regards the constitutional power or otherwise of the National Assembly to summon the President, for the purposes of investigation and enquires in the performance of its oversight functions, I take a swiftly contrastive position against the much weathered argument of the Learned Silk, respectfully though.

For clarity, appreciation and comprehension of the foregoing discourse, there is need to reproduce the purports of sections 88, 89 and 308 as sections materially inclnied to the vexed issue at hand. To start with, section 88 (1)/of the 1999  constitution provides:

” 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 the National Assembly and ;

(Ii) disbursing or administering moneys appropriated or to be appropriated by the National Assembly.

Sub- (2) of section 88 sumed up by providing thus:

” The powers conferred on the National Assembly 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 defect in existing  law ; and

(b) expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence or in the disbursement or administration of funds appropriated by it.

While dissecting the above provisions, it is unarguably clear that the National Assembly has the unruly power to summon the president. Taking a cursory look at sub- (1) (a) of section 88, it provides:

” any matter or thing with respect to which it has power to make laws” . Now, the simple rhetoric question is, didn’t the National Assembly has power to make laws on matters bordering on the office of Mr. President? Of course, they have the power. The answer here is beyond peradventure. Sub- (1) (b) of section 88, went further to provide thus:

” 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….””.

The word “any person” here includes, generally, any person so to say. In fact, including the president of Nigeria. In an attempt to cover the ” any person ” contemplated by the constitution, the purports didn’t end there, it proceeded to add ” authority, ministry or government department charged or intended to be charged …”.

Assuming but not conceding that the president didn’t fall within the category of ” any person ” mentioned by the constitutio, is he not therefore Manning an authority or governmental authority saddled with the responsibility of governance within the legislative competence of the National Assembly?  These constitutional provisions are clear which suggest that the National Assembly can summon the president as part of their oversight functions. By extension, the power of the National Assembly to make laws, for peace, order and good governance traces it origin from section 4 (2) of the 1999 constitution, it provides:

“The National Assembly shall have power to make laws, for the peace, order and good governance of the Federation or any part thereof with respect to any matter included in the exclusive legislative list set out in part one of the second schedule to this constitution “”.

This sums up the arguments. It is equally a matter of both law and common knowledge that since the National Assembly can make laws for the whole Federation and can summon anyone serving within the laws enacted by it, can technically summon the president. In a bid to complement section 88 of the constitution, section 89 provides:

“For the purposes of 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 maybe relevant or material 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 subject to all just exceptions; and

(d) issue a warrant to compel the attenance who after having been summoned to attend, fails, refuses or negelcts to do so and doesn’t excuse such failure , refusal or neglect to the satisfaction of the House or 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 .

(e) and any fine imposed shall be recoverable in the same manner as a fine imposed by a court of law.

A critical perusal of  the above section 89 even though it seeks to complement and supplement the provisions of section 88 of the constitution, there is a limit to the application of the section, that is to say, it can hardly be interpreted to include the president especially in the context of issuing warrant of arrest to compel his attendance. Allowing section 89 strictly to be applicable loosely on the president amounts to an infraction to section 308 of the constitution which guarantees executive immunity from civil or criminal proceedings in which case the gravamen of section 89 of the constitution.  For ease of reerence, section 308(1) provides:

” Notwithstanding anything to the contrary in this section but subject to sub- section (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 prisoned during that period either on pursuance of 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….””

From the combined effect of the above sections 88,89 and 308, it is glaring that the sections are blowing both hot and  cold, reason being that sections 88 and 89 are giving while section 308 is taking it away. In the light of the foregoing, it is my firm submission that sections 88 and 89 partly applies to the President but not to the extent of issuing warrant of arrest on him. The part of the sections 88 and 89 that doesn’t apply to the President has been fettered and water down by section 308 of the constitution which is the doctrine of immunity. Although, pursuant to section 88 of the constitution, the National Assembly can invite or summon the president for the purposes of investigation and the likes but shouldn’t overstretch its limit by issuing a warrant of arrest, taking oral or documentary evidence in pursuance of anything connected to the President which section 308 outrightly frwons at.  Issue of immunity clause has long been delt with judicially in plethora of judicial authorities. The Apex Court in Hon. Rotimi Chibuike Ameachi Vs INEC & 2 Ors (2007) NWLR (pt. 1040) , 504. Per Okoro JSC held:

” section 308 of the constitution is not designed to deny citizen of this country his right of access to court. Rather, it is a provision put in place to enable a Governor or executive while in office to conduct the affairs of governance free from hindrance , embarrassment and difficulty which may arise , if he is being constantly pursued or harassed with a court processes of a civil or criminal nature while in office. The court of Apeal followed suit without hesitation in Alhassan Vs Aliyu & Ors (2009) LPELR-8340(CA)  and host of other authorities, like:

A.D Vs Fayose (2004) 8 NWLR (pt. 876)639, Obih Vs Mbakwe(1983)1 SCNLR 192 and Ejura Vs Idris & 2 Ors  (2006)4 NWLR (pt. 971) 538.

In this wise, it can fairly be submitted that the National Assembly can summon the President for the purpose of investigation without the strict application of section 89 of the constitution, that is to say, not to the extent of issuing a warrant of arrest against him, because of the effect of section 308 of the constitution.

                       By


     O. G. Chukkol, ACIArb (UK)

Much has already been said on the power of the National Assembly to invite or summon President Buhari and weather has heavily been made on the immunity clause entrenched in section 308 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to show that Buhari is not bound to honour the NASS Invitation.

Therefore, the points below may be relevant in clarifying some constitutional issues and whether there is need for the prolonged argument in the first place.

1. Section 88 And 89 of the constitution empower the National Assembly to Investigate “ANY PERSON, AUTHORITY,” and to summon “ANY PERSON IN NIGERIA”. Is President Buhari a person and or authority in Nigeria? Yes he is.
2. What is the scope of section 308 regarding summons and arrests? It applies only to arrests or summons relating to COURT PROCEEDINGS.
3. Is National Assembly a court? No it is not a court.
4. What are the status of the provisions of sections 88, 89 and 308 of the Constitution? Provisions of sections 88 and 89 are specific while provision of section 308 is general.
5. Between a specific provision and general provision in the same constitution, which one overrides the other? Specific provision overrides general provision. See the case of Inakoju v. Adeleke (2007) 1 S.C. (Pt. 1) 1 where the position was confirmed by the Supreme Court of Nigeria thus:

“Where the Constitution or a statute contains a general provision as well as a specific provision, the specific provision will prevail over he general provision. In the instant case, the specific provision of section 188(9) of the 1999 Constitution will prevail over the general provision of section 102.”

See also CAC V. Davis (2006) LPELR-11411(CA) where it was held that the reason is because
“the specific provision will be deemed to have anticipated the issue as against the general provision. Thus in the instant case, even if the argument of the learned counsel for the appellant could be described as a case of two sets of provisions in an enactment, one special and the other general covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision”

The implication is that the power of the NASS to summon “ANY PERSON IN NIGERIA” including President Buhari is superior to the immunity provisions of section 308 of the constitution.

6. Are the powers in sections 88 and 89 of the constitution exceptions to the immunity clause in section 308 just like election petitions? Yes they are exceptions and in fact another perfect way of looking at it. In A.D v. Fayose (No 1) (2004) 26 WRN 34 court declared that Fayose could be subpoenaed (ordered to come to court to give evidence) notwithstanding immunity under section 308 of the Constitution.
7. Can NASS rely on section 88 and 89 to invite or summon Mr. President on security? Yes they can because sections 217, 218, 219 and 220 of the Constitution empower them to make law regulating how the President may exercise powers as Commander in Chief of the Nigerian Armed Forces.

8.
Some people argued that section 67(1) of the constitution says President “MAY” attend meeting of the NASS while 67(2) says Minister “SHALL” attend. Does that mean that the word “may” was used to make it discretionary for president to honour invitation by NASS?

With profound respect it is misconceived argument. Section 67(1) did not say that President “MAY” attend on INVITATION by NASS. Rather it made the visit to be initiated by the president. It is that of Minister that the constitution clearly says minister shall attend “if invited”. In other words, unlike section 67(2) of the constitution, section 67(1) did not say president may attend “if invited” but it says he may visit if it is of national importance.

Therefore, section 67 is completely irrelevant in discussing the power of NASS to invite President Buhari

9. Does section 308 of the Constitution prohibit president from being accountable to the citizens? No it does not. He owe them a duty to give explanation on security State of the nation.
10. Is the argument on the power of NASS to summon or invite President Buhari necessary? It is not. Such argument is capable of distracting people from asking president to secure his citizens.

11.
Should the argument continue? No. People should contrate on putting pressure on Buhari to fulfill the mandate given to him, i.e security and welfare of people should be on his priority list.

                          *✍*
    *O. G. Chukkol, ACIArb (UK)*
             Final Year Student, 
               Faculty of Law,
                   ABU, Zaria
    [email protected]
               08032470318
           December 13, 2020