17/05/2018
Readers, please, bear with me in suspending the concluding part of the article captioned “The President cannot approve $1BN insurgency fund without National Assembly approval (part 3)”, which commenced 2 weeks ago and continued last week.
This is to enable me tackle a more urgent matter of national importance. This has to do with whether or not the Senate can legally summon the IGP. We shall continue that write up later.
There has been much unnecessary hoopla as to whether or not the Senate of the National Assembly can legally summon the IGP to appear before it. Yes, it can, constitutionally and statutorily. It possesses such powers under sections 4, 88 and 89 of the 1999 Constitution and under section 4 of the Legislative Houses (Powers and Privileges) Act, LFN, 2004. Those positing contrary views are merely urging, most unfairly, the IGP to disrespect and desecrate the important institution of the Senate, which, together with the House of Representatives, form the bi-cameral National Assembly. The NASS is the Legislature which is the 3rd Arm of Government (Section 4), the others being the Executive (section 5) and the Judiciary (section 6), all of the 1999 Constitution.
For the records, it is the absence of this crucial Legislature that erases democracy as we know it.
Throughout successive military juntas in Nigeria, the Executive and Judiciary were always left intact. The Executive, coming in the form of military oligarchy, always appropriated (better still, misappropriated), the law-making powers of the legislature, which it executed in the form of Decrees at the federal level and Edicts at states level. Ouster clauses were whimsically and capriciously built into Decrees and Edicts to oust the jurisdiction of the courts, thus weakening the judiciary. With the Legislature annihilated and the Judiciary castrated, the military rode slipshod on the citizenry in the most brazen, tyrannical, dictatorial, autocratic, oppressive and repressive manner, putting human rights, rule of law, accountability and transparency in governance in retreat and abeyance.
It is therefore very crucial that the authority, sacredness and sanctity of the Senate must be respected by all Nigerians, however highly placed.
To do otherwise amounts to executive lawlessness ad recklessness.
It is in this context that I respectfully frown at the blatant refusal by the IGP to appear before the Senate when he was summoned to do so. He had no excuse whatsoever. Those edging him on are his real enemies, not friends. Their porous argument, unfortunately bought by the IGP, is that the Senate cannot summon him over Dino Melaye, or over Herdsmen menace across Nigeria, because, according to them, these are not matters that would lead to the making of new laws or curbing corruption and waste. I will show anon why and how these protagonists are wrong, wrong and wrong.
WHY IGP MUST HONOUR THE SUMMONS
Before this however, let us ask the question: how will the IGP know the contents and context of the summons without first honouring it? What prevents the IGP from respecting democratic institutions by first appearing before the Senate Committee and then telling it to its face he could not answer certain questions posed to him for the reasons he may then proceed to adduce? Such could be that the matter under interrogation is already in court (the “Subjudice” Rule; order 53 (5) of the Senate Standing Rules); or that answering such questions would breach national security matters. It is to be noted that in April, 2018, the FCT High Court presided over by his Lordship, Justice Abba-Bello Mohammed, had dismissed a fundamental rights enforcement suit instituted by the same IGP, Ibrahim Idris, wherein he had challenged his summon by a Senate ad-hoc committee investigating various allegations of massive corruption levelled against the IGP and the Police Service Commission by Senator Isa Misau.
The court had upheld the Senate’s power to summon the IGP as encapsulated in sections 88 and 89 of the Constitution. The decision of the court puts paid to the illogical argument by those people who simply see such an investigation as an anathema or a taboo. For the records also, the IGP had already ignored Senate summons on the 25th of April, 2018, ever before Dino Melaye was charged to the Magistrate Court, Abuja. He had also ignored a second summons on the 2nd of May, coinciding simultaneously with the very day Dino was charged to court. Finally, he again ignored a 3rd summons on the 9th of May, 2018, even after the NASS leadership had reported him to PMB at a meeting held in A*o Villa. By virtue of section 60 of the 1999 Constitution, the Senate can make Rules to regulate its own proceedings.
It can, under section 62, appoint committees on permanent and adhoc basis to tackle internal and national issues and invite any member of the public to appear before such committees. Indeed, under section 67(2) of the Constitution, any minister can be invited to attend either House of the NASS to explain the conduct of affairs of his Ministry. More significantly, the President may, under the same section 67(2) of the Constitution, attend any joint meeting of the NASS, or either House, for the purpose of delivery of address on national or fiscal matters, or policy of government.
Question: if the number one citizen is constitutionally obliged to attend the Senate (“may” in the context here means “must”, “shall”: PDP vs. Sheriff & Ors (2017) LPELR- 42736 (SC)], how much less an IGP, who is himself a mere appointee of the same President (Section 215 (1) (a) of the 1999 Constitution?
THE MISINTERPRETED SECTIONS 88 AND 89
The sections variously misinterpreted by proponents of IGP’s defiance of honouring Senate’s summons readily cite sections 88 and 89 of the 1999 Constitution. Their interpretation and pronouncement on them are highly skewed, sentimental and gravely illogical. They do not represent the law. Section 88 (1) of the 1999 Constitution provides:
88.(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 ex*****on or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.
Section 89 provides as follows:
(1) For the purposes of any investigation under section 88 of this Constitutional 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.
By virtue of section 4(2) of the 1999 Constitution, “the NASS 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…”
The IGP is, under section 215 (3) of the same Constitution, required to be given “such lawful directions with respect to the maintenance and securing of public safety and public order”, by the President or such minister as he may authorize. The IGP is thus made the Chief Security Officer (CSO), of the federation, to enforce “laws for the peace, order and good government of the federation….” These laws are enacted by the NASS. Not so?
By analysis, section 88 (1) of the Constitution provides that the Senate shall have power to investigate "any matter with respect to which it has powers to make laws" and to "investigate the conduct of affairs of any person, authority, ministry or government department charged with the duty and responsibility of executing or administering laws enacted by the NASS; disbursing or administering moneys appropriated by the NASS.” It is thus clear from this that when IGP enforces the provisions of sections 4 and 215(3) of the 1999 Constitution and section 4 of the Police Act enacted by the NASS for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order; the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged …….”, the IGP is merely acting within the ambit or "any matter with respect to which it (NASS) has powers to make laws". He is also thus a "person or authority" "charged with the duty and responsibility of executing or administering laws enacted by the NASS” (the Constitution and the Police Act). The argument of some people is that section 88 (2) provides that the powers thus conferred on the NASS are to be exercised for “the purpose of enabling it to make laws on matters within its legislative competence; and to expose corruption, inefficiency or waste in the ex*****on or administration of laws within its legislative competence and in the disbursement or administration of funds". Yes, no doubt about this at all. But, these people erroneously believe that inviting the IGP to be interrogated on the "undignified treatment" meted out to Dino Melaye when the lGP's Police chained Dino to the bed at the lCU of the trauma section of the National Hospital to which the Police had taken him from Zankali Medical Centre, and answering questions about the "wanton and unabated killings by armed herdsmen and other militias across Nigeria" (the two prongs of the invitation), do not fall under section 88(2) of the Constitution. They are dead wrong. The Senate is eminently entitled to summon and ask the lGP who is “administering and executing laws made by the NASS” (Sections 4 and 215(3) of the 1999 Constitution and section 4 of the Police Act), for the purpose of possibly amending extant Sections 214 and 215 of the 1999 Constitution, or section 4 of the Police Act, or to make totally fresh laws to govern herdsmen and militias ("for the purpose of enabling it to make laws on matters within its legislative competence") (Section 88(2). (To be continued next week).
THOUGHT FOR THE WEEK
“There are always risks in challenging excessive police power, but the risks of not challenging it are more dangerous, even fatal”.(Hunter S. Thompson).
By chief Mike Ozekhome SAN
