It is no longer arguable that the security situation in Nigeria has deteriorated beyond acceptable measures/dimensions.
This un-abating security challenge has resulted to every well-meaning Nigerian calling for holistic overhaul of the system. Some said “President should resign’’, others called for his impeachment and yet many more have reinstated the need for the removal of the Service Chiefs.
The most recent of these bedeviling insecurity menaces was the gruesome murder of 43 rice farmers at Zabarmi, by Boko Haram which resulted in the motion on the floor of the House of Representatives for summoning the President to appear before the National Assembly (NASS).
Although this motion was opposed by a member, at the end of it all, the leadership of the House met the President who soon after communicated his willingness to appear before the Joint House of Assembly. All along, on the issue of security, the Presidency has consistently posited that the President has sole responsibility for the security of the nation and that the issue of appointment or removal of Service Chiefs is the exclusive preserve of the President.
However, penultimate Wednesday, the Attorney General of the Federation (AGF)/ Minister of Justice, Mr. Abubakar Malami (SAN) issued a press release where he stated that the right of the President to engage the NASS and appear before it “is inherently discretional”- a release that sent early message that the President might after all not honour his pledge to appear before the NASS as scheduled for Thursday December 10, 2020.
Issue of summons
Some political analysts and public affairs commentators have argued on whether or not the President should be summoned or simply invited.
Those of the school of thought of invitation opined that the President, being the number one citizen of the country, should not be summoned, rather, he could be invited; yet others have argued that the President being a citizen could be summoned by the NASS.
Let us simply settle this by saying that the use of the word ‘summon’ or ‘invite’ in this case is merely a matter of semantics, especially in view of the fact that, following a motion moved at the floor of the House, the Speaker, Hon. Femi Gbajabiamila and a select few members met the President and discussed with him after which the President subsequently confirmed willingness to appear before the Joint House of The NASS.
Therefore, the argument as to whether President was invited or summoned amounts to no issue. This is particularly so as the President, before expressing such desire to appear before the NASS, must have sought and obtained advice of some members of his inner caucus which in our view had great merit.
This is one of the reasons while the statement credited to Prof. Itse Sagay that the parliament in England cannot summon the Queen, which is rightly so, cannot apply in Nigeria where we operate a presidential system of government as opposed to the parliamentary Westminster system being operated in England
AGF’s main point
The following are the main highlights in the press release by the AGF: a. That the right of the President to engage the NASS and appear before it is inherently discretionary, b. That the NASS has no constitutional powers to envisage or contemplate a situation where the President would be summoned to explain operational use of the Armed Forces and (c ) That Mr. President has constitutional privileges attached to the office of the President, including confidentiality in security matters. The correctness or otherwise of these highlights shall be revealed as we examine the constitutional basis of the NASS Invitation hereunder.
Constitutional basis of NASS invitation
It must be noted that Nigeria runs a presidential system of government which thrives on constitutional democracy where the government does not only derives its powers from the people but must also ensure the participation of the people from whom the government derives power and who are ably represented in the NASS as second arm of government.
See section 14 (2) (a)- (c) which provide: ‘’ (a) Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority (b) the security and welfare of the people shall be the primary purpose of government: and (c) the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.’’
The Constitution also entrenches the cardinal issue that government is made up of three arms, namely, the Executive, the Legislature and the Judiciary, each of which has jointly with the others the responsibility to ensure good governance.
(See section 13 which provides thus: “It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution’’.
These three arms of government are created with in-built checks and balances, for the purpose of avoidance of abuse of power by any arm of government. This system also empowers the NASS to ensure avoidance of corruption and inefficiency through in-built oversight functions.
(See the provisions of Sections 58, 80, 81, and 88 of the Constitution). Going by the above constitutional provisions, the NASS has inherent powers to perform oversight functions on any person or authority within the definition of our Constitution which term must of necessity include the President.
The power of the NASS to summon is provided expressly in Section 89 of the Constitution particularly Section 89 (1) (c) which provides as follows: 89.
“(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 – (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;’
’ It is worthy of note that, the power of the President to determine command and operational use of the Armed Forces, the power to appoint Service Chiefs, the power to delegate these powers, together with power of appointment, promotion, and disciplinary control of the Armed Forces is subject to the laws and regulations made by the NASS as provided in sections 218 (4) (a) & (b) and section 219 of the Constitution, particularly section 218 (4) (a) & (b) which provide as follows: ‘’S218(4)
The National Assembly shall have power to make laws for the regulation of – (a) the powers exercisable by the President as Commander-in-Chief of the Armed Forces of the Federation; and (b) the appointment, promotion and disciplinary control of members of the armed forces of the Federation’’.
Dissenting voices from within government circle One
worrying factor in this whole saga of the invitation of the President by the NASS is the divergent views/opinions publicly expressed not only within the different organs of our government but also within the NASS itself.
The House of Representatives in a release published in Oak TV on the 11 of December stated that they never summoned Buhari but only invited him. The House of Senate stated on Wednesday the 9th of December that it had nothing to do with the invitation of the President by the House of Representatives.
More specifically, the Chairman of Senate Committee on Media & Public Affairs, Senator Ajibola Basiru stated that the Senate did not summon the President, in his words as reported by Naija News ‘’to the best of my knowledge I am not aware of any planned joint session of the National Assembly’’
Not only that, the governors also prevailed on the President on Tuesday, December 8, during the APC Exco meeting not to appear before the NASS. While the import of the AGF press release under consideration is to express the view that the President would not honour the NASS invitation, as at the 11 December 2020, the House of Rep stated that it had not received any official communication from the President that he would not honour their invitation, thereby making the whole issue more chaotic.
The purport of highlighting these divergent voices is the fact that same has the capacity to create confusion for the President and make him a victim of the lack of coordination and unity of purpose emanating from the NASS.
Flowing from the foregoing provisions of the Constitution, it is clear that the NASS has the constitutional rights and powers to invite the President to give explanation on the debilitating security situation in the country.
Thus any claim from anyone that the NASS lacks such powers is untenable and unjustifiable in the face of the express wordings and the spirit of Constitution of our country.
By the operation of democratic practice the world over, it is indisputable that government derives its power from the people. Democracy also thrives on interaction between the government and the governed which must be continuous thereby requiring constant and on-going interactions between all stakeholders.
The NASS has the express constitutional rights and duties as well as that of oversight functions over every person/authority in government which cuts across all areas including security and particularly in the case as to whether the country’s money is being properly spent and whether the people are getting real value for money budgeted for defence and security which constitutes along with welfare, the primary purpose of government.
Therefore, the press release by the AGF where he said that the President has the right of choice to or not to honour NASS invitation, citing only Section 218 (1) of the Constitution which empowers the President to determine the command and operational use of the Armed Forces, without citing Section 218 (4) (a) & (b) as well as Section 219 amounts to deliberate misrepresentation of relevant facts and issues to the President as well as misleading the general public.
The AGF must realise that he is the Chief Law Officer of the Nigerians and should not allow his ministerial duties which have political tendencies to affect his office as the Nigerian peoples’ lawyer. Looking at the episode from time of invitation of the President to the failure of the joint meeting of the NASS earlier slated for Thursday 10, it seems obvious to us that the President meant well.
However the last minute abortion of the meeting is a poor outing for the Presidency. A thorough examination of the imputes from people in government as to the propriety or otherwise of the invitation would have confused even a saint of a President.
We opine that some government officials in the executive arms and in both houses of the NASS contributed largely to the sour taste in public month arising from the failure of Mr. President to take the big advantage that would have accrued to him in addressing the joint houses of the NASS.
This episode again re-emphasized the need for Nigeria to create two separate offices for the Minister of Justice and another for the AGF. Furthermore, the discordant voice often emanating from our legislators – some obviously overwhelmed by partisan interests must reduce the trust of the electorate in the elected representatives which is bad for our country.
•Brig-General Ikponmwen is former Director, Legal Services of the Nigeria Army