Shunned Summons: Limitation of Senate Power to summon the IGP, any Public Functionary and any person…Legal Analysis
Shunned Summons: Limitation of Senate Power to summon the IGP, any Public Functionary and any person…Legal Analysis
The Inspector General of Police, Mr. Ibrahim Idris has for three consecutive times failed to honour Senate summons on him to appear before its plenary to explain the circumstances surrounding the arrest of one of its members Senator Dino Melaye and killings across Nigeria. The first summon was given on Wednesday, April 25 when the Senate gave the IGP a 24-hour notice to appear before its plenary. Mr. Idris sent his deputy, who the Senate denied appearance. The police chief later through a statement explained that he was on an official assignment with President Muhammadu Buhari in Bauchi. He was told to appear the following Wednesday.
On the said Wednesday, May 2, 2018, the Senate had stood down their Order 17 to allow the police chief to enter the chamber; but he was not around. Mr. Ibrahim, the chairman Senate Committee on Police Affairs, said he had not been able to reach Mr. Idris for a while. He informed his colleagues that after the first summon, the National Assembly clerk wrote to Mr. Idris and thereafter, he met with him and implored him to honour the Senate. The lawmakers deliberated on the development and resolved to give Mr. Idris one week grace to honour the invitation. He was asked to appear on Wednesday, May 9, 2019. But on this day, the IGP yet again failed and refused to obey the summon. This subsequently led to the Senate to declare him a Persona Non Grata, unfit to hold public position and an enemy of democracy. The IGP retaliated by accusing the Senate of harbouring criminals, acting on a subjudice matter and deliberately interfering with police duties.
Limitation of Senate Power to summon IGP and other Public Functionaries
The Senate being one of the two houses of the National Assembly has the constitutional power to summon any person to give evidence during its investigation. This power to summon any person, the legal limitations to exercise of it and the purposes its meant to serve are contained in Sections 88 and 89 of the Constitution, and under Sections 3 and 4 of the Legislative Houses [Powers and Privileges] Act, Cap L12 LFN, Volume 8, LFN, 2004.
Section 88 of the Constitution provides that:
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 –
any matter or thing with respect to which it has 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 National Assembly, and
(ii) disbursing or administering moneys appropriated or to be appropriated by the National Assembly.
the powers conferred on the National Assembly under the provisions of this section are exercisable only for the purpose of enabling it to –
make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and
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.”
And Section 89 of the Constitution states that:
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 –
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;
require such evidence to be given on oath;
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
issue a warrant 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 to compel the attendance of any person who, after having been summoned to attend, fails, refuses or neglects to prescribed for any such failure, refusal or neglect; and any fine so imposed shall be recoverable in the same manner as a fine imposed by a court of law.
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.”
The Legislative Houses [Powers and Privileges] Act makes provisions in Sections 3 and 4 respectively, for power of committee to order attendance of witnesses; issue and service of summons to attend committee hearings; power to issue warrant to compel attendance; examination of witness on oath; privilege of witnesses; answers in committee not to be admissible in proceedings; giving false evidence; refusal to answer questions or failure to attend committee hearing; fabricating evidence; and deeming proceedings judicial for certain purposes.
A careful perusal of section 88(1) of the Constitution reveals the following:
The National Assembly can by a published or gazetted resolution cause an investigation on any matter or thing.
The investigation must be into a matter or thing it has power to make laws on.
The investigation can be on conduct of affairs of any person, authority, ministry or government department with responsibility to administer laws or disburse moneys appropriated by the National Assembly.
By section 88(2) of the Constitution, this investigation can only be exercised only for the purpose of enabling the National Assembly to:
Make laws on a matter within its competence or correct any defects in existing laws.
Expose corruption, inefficiency or waste in the execution of laws and in the disbursement of funds appropriated by it.
In other words, any investigation by the National Assembly that is not for these purposes is null and void. It therefore implies that the National Assembly power of summoning any person to appear before it in accordance with section 88(1)(c) of the Constitution can only be exercised when the purposes for the investigation accords with the qualifications specified in section 88(2)(a)(b) of the Constitution.
I have deliberately emphasized and emboldened the word – investigation- to underline its necessity in the exercise of Senate power to issue a summon.
CRUX OF THE MATTER:
Did the Senate summons on the IGP to brief its on the arrest of its member and the killings in the land met the condition precedents stated above? The answer is No. At the time of summoning the IGP, there were neither an investigative committee created through a resolution of the Senate nor was the intendment of the summons to make or amend any law. Further more, the intendment of the summons was also not to expose corruption, inefficiency or waste in management of police resources.
The courts have had the opportunities of shedding lights on these contentious provisions. Thus, in the case of Senate of National Assembly v. Momoh (1983) 4 NCLR, 269 at 295 para.1- para. 8, the Court of Appeal P. Nnaemeka Agu, JCA delivering the leading judgment held, while interpreting the provision of Section 82 of the 1979 Constitution (in pari material with the provision of Section 88 of the 1999 Constitution) as follows:
“In the U.S. the initial controversy was as to whether or not Congress had power to investigate. Fortunately this is settled in our case in favour of both Houses of the National Assembly by S. 82 of the  Constitution. Our problem here is bound to be whether or not particular investigations exceeded constitutional limitations contemplated by S. 82. The scope and limitations of this power are bound to be determined by the wordings of that section; and the primary problems are the facts that the power to investigate are naturally executive in content and the power of adjudication judicial: the power to investigate is strictly not germane to the legislative function of the Houses, although it may be in support of it, and that, in practice, when it involves an individual it may often come into conflict with the rights guaranteed by the Constitution itself.
This tangled state of affairs calls for caution in determining the true perimeters of that power. It appears to me that section 82 is not designed to enable the legislature usurp the general investigative functions of the executive nor the adjudicative functions of the judiciary. The section enables either House to exercise the power only with respect to any matter or thing with respect to which it has powers 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 or responsibility for” – “executing or administering laws enacted by the National Assembly”,. and “disbursing and administering moneys appropriated or to be appropriated by the National Assembly”.
In other words, the section does not constitute the House as a universal “Ombudsman” inviting and scrutinizing the conduct of every member of the public for purposes of exposing corruption, inefficiency or waste. In my view, their power under the section is further circumscribed and limited by sub-section (2) of section 82. They can only invite members of the public when they want to gather facts for the purpose of enabling them make law or amend existing laws in respect of any matter within their legislative competence or as witness in a properly constituted inquiry under section 82(1)(b).
Their power to expose corruption, inefficiency, or waste is also limited to government departments, authorities, and functionaries. I dare say that if this power should be free from abuse, the purpose of investigation, its composition and terms of reference should be clear from the proceedings of the House which authorises it and should be seen to be within the four corners of the constitutional power.
It is not enough that the matter for investigation be within the legislative competence of the House. A proper and lawful investigation must have been constituted. In this case, the letter, Exh. A, does not say there is any investigation for the purposes of any legislation. Nor is the respondent a class of persons contemplated by either section 82(1)(b) or section 82(2)(b). It appears rather from the resolution, Exh. A, and the proceedings of the House, Exh. C, that the purpose is the decision of the house to show resentment for the respondent’s affront in daring to publish something about highly placed legislators rather than a plan for the investigation of the members for abuse. This should not be. The essence of section 82(2) is, in my view, that in point of fact the purpose should be seen in fact to be present and to be within the contemplation of the section. Section 82(2) is designed to eliminate abuse. Any invitation by the House to any person outside the purposes defined by section 82(2) of the constitution is invalid. No power exists under the section for general investigation nor for the aggrandizement of the House. So, the appellants were not entitled to have invited the respondent in the first instance.”
The above judgment addressed the extent and width of legislative powers on investigation and summoning of any persons in Nigeria. The principles in it was equally applied by the court in the case of Mallam Nasir Ahmed El-Rufai v. The House of Representatives, National Assembly of the Federal Republic of Nigeria & Ors. (2003) 46 WRN 70, at 97 para.25-para. 40. The Court of Appeal purposely interpreted the provisions of Section 88 of the 1999 Constitution. Oguntade, JCA (as he then was) who read the leading judgment of the Court held thus:
“The crucial question that follows is this: when the 1st Defendant sent the letter of 20/3/2002 to the Plaintiff to appear before its Ethics and Privileges Committee, was it engaged in the making of a law within its legislative competence or to expose corruption and inefficiency in a public department? Clearly, the answer is in the negative. It is apparent that the 1st Defendant was displeased with the conduct or utterances credited to the Plaintiff and was intent on taking further steps following its antecedent determination. That this was the intention of the 1st Defendant which is made clear by the opening paragraph of the letter which stated that the Plaintiff had published defamatory matters concerning it. The 1st Defendant has also determined that the Plaintiff’s conduct and utterances were contemptuous and a breach of its privileges. Having made that determination, the referral of the matter to its committee on ethics and privileges for investigation can only be in the further pursuit of the decision earlier reached.”
In a related event, an FCT High Court presided by his Lordship, Justice Abba-Bello Muhammed had in April this year dismissed a fundamental enforcement right action instituted by the IGP Ibrahim Idris challenging his summon by a Senate ad-hoc committee investigating various allegations of corruption levelled against the IGP and the Police Service Commission by Senator Isa Misau. The court upheld the Senate power to summon as encapsulated in sections 88 and 89 of the Constitution. The decision of the court was apt and commendable in that there was a properly established investigative committee which terms of reference amongst other things include exposing corruption as demanded by Section 88(2)(b) of the Constitution.
From the analysis above, it is humbly submitted that before a person is summoned by the Senate, it must fulfill some condition precedents thereto. These condition precedents include: a published or gazetted resolution authorising an investigation to be done on the matter or thing for which the summon is being issued, there must be terms of reference the investigation must cover and lastly is that the aims of the investigation must revolve around making or amending the law and to expose corruption, inefficiency or waste in government agencies. The facts in the introduction to this piece shows that all these conditions where not met when the Senate summoned the IGP to appear before it within 24 hours.
Though the Senate has power to summon the IGP, any public functionary or any person based on Section 89(1)(c) of the Constitution, this power is strictly limited by Section 88(1) and (2) of the Constitution. The best the Senate could do is to resort to section 67(2) of the Constitution to invite a Minister to explain the conduct of his ministry and agencies under it.
Until these provisions are amended to reflect the need to enhance the powers of the National Assembly to inquire into activities of government agencies and authorities, this remain the position of the law.
Obioma EzenwobodoAbuja Based Legal Practitioner and Human Right Activist.