Sections 88 and 89 of the Constitution of the Federal Republic of Nigeria (that empowers Senate to summon anyone) and Sagay’s right to freedom of expression, the Senate for the reasons set forth below does not have the power to summon Prof. Itse Sagay to appear before it. When one considers international best practices (obtainable in Presidential system of government), the Executive arm’s long standing position, reaffirmed by numerous administrations of political parties in United States for example is that the President’s immediate advisers are absolutely immune from congressional testimonial process. This immunity is rooted in the Constitutional separation of powers, and in the immunity of the President himself from congressional compulsion to testify. It is a known fact that the President is the head of the Executive arm of government. If a Congressional committee could force the President’s appearance to testify to matters that occur before it, “fundamental separation of powers doctrine – the President’s independence and autonomy from Congress – would be threatened”. In the same vein, in the words of a former US President, “the doctrine of separation of powers would be shattered, and the President, contrary to fundamental theory of Constitutional government, would become a mere arm of the Legislative Branch of government if he would feel during his term of office that his every act might be subjected to official inquiry and possible distortion of political purpose”. Should Prof. Itse Sagay appear before the Senate Committee, it would set a dangerous precedent in Nigeria Constitutional law, and this should not be allowed to happen. Just as the American President may not compel congressmen to appear before him, as a matter of separation of powers, congress may not compel him to appear before it. There are insinuations in some quarters, that the Senate must have felt humiliated by Sagay’s remarks recently on the failure of the former to confirm Ibrahim Magu as the substantive head of the EFCC and particularly, when he allegedly described them of being “childish and irresponsible”. That is a matter for another day (in accordance with the Freedom of Expression clause of the 1999 Constitution), however, if one considers that Senators are in the votex of public controversy and can be verbally attacked or faced with social malice or a combination of both visa-viz the protection of such remarks by Section 39 of the Constitution of the Federal Republic of Nigeria (As Amended), then the nullity of issuing such perceived “retaliatory summons” will be better appreciated. At best, Sagay’s remarks could have been ignored, just as those of OBJ who has repeatedly called the Senate, “a bunch of thieves and rogues”. For the President’s absolute immunity to be fully meaningful, and for the separation of powers doctrine to be adequately protected, the President’s immediate advisers must likewise have absolute immunity from the National Assembly compulsion to appear or testify about matters that occur during the course of discharging their duties. Given the numerous demands of his office, the President must rely upon Senior advisers – those trusted members of his inner circle or caucus/ kitchen who customarily meet with the President on a regular or frequent basis, and upon whom the President also relies directly for candid and sound advice – are in many ways, an extension of the President himself. They function as the President’s alter ego, assisting him on a daily basis in the formulation of executive policies and resolutions affecting the military, foreign affairs, corruption and national security as well as other aspects of his discharge of constitutional responsibilities, including supervising the Executive Branch and developing policy. It is worth noting that the Constitution establishes the President as the Chief Constitutional officer of the Executive arm, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity. The Senate’s power to subpoena a close Presidential adviser to appear before it would threaten the Executive arm’s confidentiality, see United States v. Nixon, 48 U.S. 683 708 (1974). Worst still, it will amount to the Senate, constituting themselves into a court trial of Sagay. Such an invitation will indeed amount to an exercise of judicial powers which they lack. From the foregoing reasons, it is safe to conclude that the Chairman of the Presidential Advisory Committee against Corruption, Prof Itse Sagay (SAN), is immune from Senate’s compulsory summon to appear before it. He may as well invoke Executive Privilege and decline to respond to the subpoena. ]]>