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.
