Editorial

Reps’ Summons: Buhari Apes Jonathan

The refusal of President Muhammadu Buhari to honour the invitation of the House of Representatives has expectedly sparked fresh constitutional debates on whether the lawmakers have such power or not.

On December 1, 2020, the lawmakers asked Buhari to come and explain what his government was doing to curb the rising spate of insecurity across the country.

The decision was based on a motion of urgent national importance moved by the Borno State caucus on the killing of over 40 farmers in the state.

On December 2, Speaker of the House, Femi Gbajabiamila, said the president had agreed to address the National Assembly and that a date would be disclosed.

On Monday, Buhari’s Assistant on Social Media, Lauretta Onochie, disclosed that the president would address a joint session of the National Assembly on Thursday.

“President @MBuhari will address a joint session of the National Assembly (@nassnigeria) on Thursday, December 10, 2020,” the tweet read.

However, on Thursday, Buhari failed to show up at the green chamber, sparking criticisms of the president’s disregard for the people’s representatives.

Critics have said the House has the power under Section 89 (1) (c) of the Constitution. According to the Section, “for 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 by Section 62 of this Constitution shall have the power 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, subject to all just exceptions.”

Sub-section 1(d) provides for the power of the House to compel the attendance of anyone that fails to appear when summoned. The Sub-section reads “in the event a person fails to appear, the Senate or House of Representatives shall 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.”

However, Section 308 of the Constitution provides immunity for the President.

It’s important to note that this is not the first time the Nigerian presidency has been drawn into such saga. Former President Goodluck Jonathan was also a subject of lawmakers’ invitation.

JONATHAN’S INVITATION

In June 2012, the House of Representatives invited former President Jonathan to appear before a closed session to brief lawmakers on the state of security in the country. It was at a time the Boko Haram insurgents were carrying out frequent attacks on Nigerians in the northern region.

The move triggered varied reactions in support and dissent over the propriety of the invitation.

Chairman of the House of Representatives Committee on Media and Publicity at the time, Zakari Mohammed, said the lower chamber was constitutionally empowered to invite the President “after all, he had also invited us in the past.”

According to Mohammed, contrary to claims in some quarters that the invitation was unconstitutional, the House acted within its powers.

“The constitution gives the House the power to invite anybody if we are conducting an investigation, adding that the silence on the date the President should appear before the lawmakers were to allow President Jonathan choose a date that would be convenient to him,” he had said.

However, Jonathan failed to honour the invitation.

Former President Goodluck Jonathan and President Muhammadu Buhari

ARGUMENTS OF SENIOR ADVOCATES OF NIGERIA ON THE MATTER

Following Jonathan’s refusal to appear before the lawmakers, Senior Advocates of Nigeria weighed in to give their opinions on what the Constitution says about the issue.

I Think It’s A Wrong Move, It’s Not Done — Sagay

In 2012, Chairman of the Presidential Advisory Committee Against Corruption (PACAC), Prof. Sagay (SAN), described the invitation extended to Jonathan as a “wrong move,” noting that it “affects the whole idea of power.”

He stated that, rather, the lawmakers should have invited the President’s subordinates, including ministers and chairmen of government agencies.

“I think it is a wrong move because, in my view, it affects the whole idea of power. Even though they have oversight responsibility for the executive, there is no doubt about that. But they should invite appointees of the President, not the President who like themselves is elected and head of the executive,” he said.

Reps Technically Have the Power To Invite President But Invitation Breaches Protocol — Agbakoba

Another Senior Advocate of Nigeria, Olisa Agbakoba, weighed in and said lawmakers have the power to invite the President, adding that how Jonathan was invited was inappropriate.

He noted that, per diplomatic protocol, the President should be the one to invite the House when he wants to come and address them.

“The House of Representatives have the power to summon the President to appear before it because the Constitution of Nigeria, Section 88, gives the House of Representatives power to exercise oversight function over any person,” Agbakoba said.

“And of course, that any person in the provision of Section 88 would include the President. Technically speaking, the House of Representatives has that kind of power.

“But in my personal view, it is inappropriate for the House of Representatives to summon the President in the manner they have done. I think it breaks protocol because no matter the tension within the House of Representatives and the President, which we all know is going on, the President remains the number one citizen. And generally, by diplomatic protocol, the President makes an invitation to the House that he wants to come and address them.”

Lawmakers Lack Constitutional Power To Summon President — Clarke

A Senior Advocate of Nigeria, Robert Clarke, said the House does not have the power to summon the President. He stated that the constitution only mandates the presence of the President when he presents the country’s budget.

“The House of Representatives does not have any power to summon the President to appear before it. The Constitution guarantees ‘Separation of Power’. The only time the President visits the parliament is to present its budget and that is the mandatory provision of the Constitution,” he said.

“Outside that, the House of Representatives have no constitutional power to order the President to come and make a representation on matters. I don’t think they have the power.

“The security of the country is vested in the Presidency. It is not a legislative matter at all. It is the sole director of the President to maintain the security of the country. If by lapses the House of Representatives now wants an explanation, it will send for his Minister of Defence. They don’t have the power. Security matters are not within the competence of the National Assembly at all.”

President Can Send Representative To Honour Invitation — Emeka Ngige

Another Senior Advocate of Nigeria, Emeka Ngige (SAN), said while the lawmakers have the power to invite the President, the President also has the right to send his aides to represent him.

He noted that there’s no specific provision in the constitution that compels the President to appear before the House.

“The House of Representatives, like any other legislative House, has the power to summon any government official, including the President. It is the same Constitution that gives the legislature power to invite, and has equally given the President power to execute its function through aides, ministers and other offsets in government,” Ngige said.

“So where they invite the President to come and discuss issues about security, the President is entitled to send his National security adviser or the Attorney General of police or any of the Service Chiefs.

“Members of the House of Representatives may be deferring under the apprehension of there power to invite any public officer. Yes, they can invite, but the President is not bound to appear in person. The President can honour it, by sending a special representative. If he likes to appear in person, he can equally appear.”

The President Is Not Any Person That Can Be Summoned — Oyetibo 

Senior Advocate of Nigeria, Tayo Oyetibo, explained that while the constitution gives the legislature the power to summon any person, the President is not like any other person.

He noted that since the lawmakers have no power to enforce the summon of the President, they technically have no power to summon him.

“The House of Representatives of the Federal Republic of Nigeria cannot lawfully issue a summon to the President of the Federation to appear before it or before any of its Committee,” Oyetibo argued.

“The law does not normally give a power that cannot be enforced. In so far as the President cannot be arrested for refusal to obey a Summons issued by the House of Representatives, it would not serve any legal purpose to issue a Summons that cannot be enforced.”

National Assembly Has Power To Summon President — Falana

A Senior Advocate of Nigeria, Femi Falana, weighed in on the invitation involving Buhari, saying the National Assembly has the power to summon him.

“With respect, the president is under a moral and legal obligation to honour the invitation. Having accepted the invitation the president should not allow himself to be embarrassed by turning round to turn down the invitation,” Falana said.

“By the combined effect of sections 88 and 89 of the Constitution, the National Assembly is empowered to summon any public officer including the President in the course of conducting an investigation into any matter concerning which it has the power to make laws and 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 executing or administering laws enacted by the national assembly.

“It is pertinent to note that the powers conferred on the national assembly under the provisions of this section are exercisable only to enable it to make laws concerning any matter within its legislative competence and to correct any defects in existing laws; and expose corruption, inefficiency or waste in the execution or administration of funds appropriated by it.”

POSITION OF THE ATTORNEY-GENERAL OF THE FEDERATION (AGF)

On Wednesday, Attorney-General of the Federation (AGF), Abubakar Malami, sparked speculations that the President would not honour the invitation of the House. He said the National Assembly does not have the constitutional power to summon the President over security matters.

He argued that the President has exclusivity on security and has confidentiality over security — powers and rights he does not share.

“The right of the president to engage the national assembly and appear before it is inherently discretionary in the President and not at the behest of the national assembly,” Malami had said.

“The confidentiality of strategies employed by the President as the commander in chief of the Armed Forces of the Federal Republic of Nigeria is not open for public exposure given security implications in the probable undermining of the war against terror.”

The AGF further stated that the president’s efforts on security matters are exclusive and confidential, and as such, “the National Assembly has no Constitutional Power to envisage or contemplate a situation where the President would be summoned by the National Assembly on the operational use of the Armed Forces.”

“The right of the President to engage the National Assembly and appear before it is inherently discretionary in the President and not at the behest of the National Assembly,” he continued.

“The management and control of the security sector are exclusively vested in the President by Section 218 (1) of the Constitution as the Commander in Chief of the Armed Forces including the power to determine the operational use of the Armed Forces. An invitation that seeks to put the operational use of the Armed Forces to a public interrogation is indeed taking the constitutional rights of law-making beyond bounds.

“As the Commander in Chief, the President has exclusivity on security and has confidentiality over security. These powers and rights he does not share. So, by summoning the President on National Security operational Matters, the House of Representative operated outside constitutional bounds.

“President’s exclusivity of constitutional confidentiality investiture within the context of the constitution remains sacrosanct.”

THE FAILED ‘STATE OF THE NATION’ BILL

In 2013, the Nigerian Senate passed the ‘State of the Nation’ bill which will make it mandatory for any sitting Nigerian President to address a joint session of the National Assembly in July every year — a replica of the United States’ State of the Union Address.

In the US, the address is an annual message delivered by the US President to a joint session of the US Congress at the beginning of each calendar year in office. The message typically includes a budget message and an economic report of the nation and also allows the President to propose a legislative agenda and national priorities. The address fulfils the requirement in Article II, Section 3, Clause 1 of the U.S. Constitution for the President to periodically “give to the Congress Information of the State of the Union, and recommend to their Consideration such measures as he shall judge necessary and expedient.”

However, the move to enshrine this tradition in the Nigerian constitution failed as former President Jonathan declined assent.

The move was to make the President accountable to the Nigerian people and render an account of his stewardship to the country.

It was also to address the confusion that accompanies invitations extended to the President by the National Assembly.

FINDING A SOLUTION TO THIS QUAGMIRE

The recent situation involving President Muhammadu Buhari presents the right opportunity to put the arguments to rest. The legislative arm of government should approach the Supreme Court to obtain an interpretation of the sections 88 and 89 of the 1999 Constitution. This step will ensure that the issue is settled once and for all. If this is not done, the situation will most likely present itself in the future.

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