President Not Under Legal Obligation To Honour Reps Invitation

By Basil Momodu Esq.

Summons or invitation of a government functionary by any of the houses of the National Assembly to explain the conduct of his ministry, particularly when the affairs of the ministry are under discussion, is part of the oversight functions of the legislature.

The term “oversight” means “intentional and watchful supervision.” There are three types of oversight functions of the National Assembly and they are (a) the power to conduct investigations and surveillance over the financial affairs of the executive provided for under sections 88 and 89 of the Constitution; (b) the power to control and supervise the general business of government using the various committees contemplated by sections 62 of the Constitution and (c) its law-making powers under section 4(2) of the Constitution.

The oversight functions of the National Assembly in each of the three categories, referred to above, are not at large but very well regimented by constitutionally devised parameters aimed at curbing a likely abuse. It is important to state, at this point, that powers not constitutionally donated cannot be exercised and be legally justified on grounds of public need or political expediency or the semblance of any of those purposes.

In Hon. Muyiwa Inakoju v. Hon. Adeolu Adeleke (2007)4 NWLR (pt.1025) p.423; (2007 -2010) 4 LLRN p. 1589 at page 1704, para 15, the court said:

“It cannot be assumed that every exercise of legislative function is justified merely by the public need or political expediency, the mere semblance of a legislative purpose will not justify a legislative function in the face of a breach of a constitutional provision.”

It is our firm view that the Constitution never contemplates the President being one of the persons referred to in section 88(b) of the Constitution. We are fortified in this view by the fact that section 89 recognizes two modes of bringing the person referred to in section 88(b) of the Constitution before any of the houses of the National Assembly while performing its duties under section 88 of the Constitution. The first is by summons under section 89(c) of the Constitution, which is not by force. The second is by warrant to compel attendance by force.

By section 89(2) of the Constitution, both a summons and a warrant issued under section 89 (1)(a) and (b) of the Constitution are to be served and executed by any member of the Nigeria Police Force or by any person authorized in that behalf by the President of the Senate or the Speaker of the House of Reps as the case may be. Under our laws, such a police officer or person referred to in section 89(2) of the Constitution to execute a warrant of arrest against the President is constitutionally incapacitated. This is the reason the draftsman of the Constitution used the term “subject to the provisions of this Constitution” in section 88(1) of the Constitution. The law does not act in vain, for the avoidance of doubt, sections 88 and 89 of the Constitution provide:

“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 execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.

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 –

(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.”

Under section 67 of the Constitution, it is crystal clear who any of the houses of the National Assembly may invites when it needs explanation as to the conduct of affairs in relation to any ministry when such affairs are under discussion in any of the houses of the National Assembly. Section 67 of the Constitution provides:

” 1) The President may attend any joint meeting of the National Assembly or any meeting of either House of assembly, either to deliver an address on National affairs including fiscal measures, or to make such statement on the policy of government as he considers to be of national importance.

2) A Minister of the government of the Federation shall attend either House of the National Assembly if invited to explain to the House the conduct of his Ministry and in particular when the affairs of that Ministry are under discussion.”

Clearly, there is nothing in section 67 of the Constitution that placed legal obligation on the President to honour Reps invitation or summons. The appropriate minister appointed by the president under section 147 is constitutionally assigned under section 67 of the Constitution to explain to the House the conduct of his ministry if invited to do so.

The Constitution purposefully coughed the provisions of section 67 to ensure the maintenance of an equilibrium in the distribution of functions of government and the running of the affairs of government. Under section 67(1), the president may attend…Under section 67(2), the president is not mentioned because the matter of explaining the conduct of various ministries can be a daily affair and can also be abused by the legislature.

The Constitution finds it necessary to insulate the President from such possible abuse of legislative power because of the nature of his office and placed such responsibility on the various ministers appointed by the President under section 147 of the Constitution. Proponents of the view that the president is under legal obligation to honour the invitation of the House of Reps may have been influenced by the western constitutional traditions, certainly not the Nigerian Constitution.

Basil Momodu Esq.

Legal Research and Law Publishing.
lindabasil@yahoo.com.