Mr. Wahab Shittu

A law teacher, Wahab Shittu submits that the Senate was wrong to declare the Inspector-General of Police (IGP) Ibrahim Idris an enemy of democracy.

The ongoing controversy between the Senate and the office of the Inspector-General of Police may have to be assessed in the light of constitutional provisions because the Constitution is the organic law of the land, what is technically referred to as ‘the un-commanded commander’. What exactly is the powers conferred on the office of the Inspector-General of Police and how may such powers be exercised?

Section 215 (1) (a-b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides:

“(1) There shall be –

(a) an Inspector-General of Police who, subject to section 216(2) of this Constitution shall be appointed by the President on the advice of the Nigeria Police Council from among serving members of the Nigeria Police Force;

(b) a Commissioner of Police for each state of the Federation who shall be appointed by the Police Service Commission.

As to the question whether the Inspector-General of Police is under obligation to exercise powers conferred on his office personally or whether such powers could be delegated, please refer to section 215(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides as follows:

“The President or such other Minister of the Government of the Federation as he may authorize in that behalf may give to the Inspector-General of Police such lawful directions with respect to the maintenance and securing of public safety and public order as he may consider necessary, and the Inspector-General of Police shall comply with those directions or cause them to be complied with.”

Clearly from the above constitutional provision, the Inspector-General of Police can delegate his powers in furtherance of lawful instructions given to the IGP by the President of the Federation. The Inspector-General of Police will be acting legally and cannot be held guilty of insubordination to any authority whether the President or the Senate if the IGP caused lawful instructions to be carried out. The clear implication of this constitutional provision is that the powers of the IGP can be lawfully delegated.

Again we make reference to the Police Act. Section 309 of the Police Act on the duties of the Inspector-General of Police provides:

“(1) The Inspector-General shall be charged with the Supreme command of the Force and with the maintenance of public safety and public order.

(2) The Inspector-General shall keep the President fully informed on the state of public security in the Federation.”

Section 312 (1 – 2) of the Police Act on the duties of Deputy Inspector-General provides:

(1) The Deputy Inspector-General is the second in command of the Force, and shall act for the Inspector-General in the Inspector-General’s absence from Force Headquarters.

(2) When acting for the Inspector-General, the Deputy Inspector-General shall be guided by the following –

(a) all matters involving any change in Force policy shall be held in abeyance pending the Inspector-General’s return, or, if the matter is urgent, referred to the Inspector-General for instructions;

(b) all matters of importance dealt with by the Deputy Inspector-General during the Inspector-General’s absence shall be referred to the Inspector-General on his return.”

Clearly from the above provision, the Inspector-General of Police is entitled to delegate his powers in obedience of lawful instructions.

The next question is, to whose authority is the Inspector-General of Police responsible? Clearly, from the combined provisions of Section 215(1) and 215(3) the Inspector-General of Police is primarily responsible to his appointor, the President of the Federal Republic of Nigeria who may give the Inspector-General of Police ‘Lawful directions with respect to security matters and he is under a duty to comply or cause compliance to such lawful orders.

Since the appointment of the IGP is based on the recommendation of the Police Council, it can also be said that the IGP is responsible to the Police Council. The next question is from whom is the Inspector General of Police entitled to seek clearance before responding to any invitation to security matters? The answer obliviously is the President of the Federal Republic of Nigeria who is the Chief Security Officer. Flowing from this argument, if the Senate extends invitation to the Inspector-General of Police, the Inspector-General of Police is entitled to respond to such invitation either personally or through officers delegated by him after clearance from the President of the Federal Republic of Nigeria and the Police Council.

Based on the foregoing, the Senate cannot declare the Inspector-General of Police as the enemy of democracy where the Inspector-General of Police had sent delegates to represent him under his authority and without first of all confirming from the President whether the Inspector –General of Police was under lawful directive of the President to appear. The declaration of the IGP as the enemy of democracy without first of all fulfilling these conditions precedent is not only a violation of the constitution but a breach of protocol.

From the facts disclosed in the media, the Inspector-General of Police repeatedly sent representatives to represent him in the Senate hearing but these representatives were rebuffed by the Senate who insisted that the Inspector-General of Police must make personal appearance. In my view, such insistence on personal appearance of the Inspector-General of Police when the Inspector-General of Police is authorized by the constitution to delegate his powers, cannot be supported by constitutional provisions. Must the IGP appear personally? Since the IGP has delegated representatives to represent him before the Senate, the IGP cannot be said to have shunned the Senate and as such his declaration as the enemy of democracy is a fundamental breach of his rights and amounted to an assault on his reputation for which he is entitled to sustain an action for libel against the Senate.

The next question is the extent of powers of the Senate to cause investigation pursuant to Section 88 & 89 of the Constitution?

The investigative powers vested in the Senate by section 88 and 89 of the Constitution is not at large. The powers can only be exercised responsibly by the Senate after compliance with clear guidelines. From what I have read in the papers, the IGP was being summoned to explain the circumstances surrounding the arraignment of Senator Dino Melaye, one of its members that does not enjoy immunity from prosecution. This in my view is a wrongful exercise of the powers of investigations vested in the Senate by Sections 88 & 89 of the Constitution. If the rights of Senator Dino Melaye was wrongfully tampered with in exercise of the investigative powers vested in the Police, Senator Dino Melaye is entitled to enforce his rights and sustain an action for exemplary damages without the Senate making official what is ostensibly a purported violation of individual rights of Senator Dino Melaye. The Senate cannot hide under Sections 88 and 89 to summon the IGP to ask questions surrounding the arraignment of Senator Dino Melaye. To do so in my view is tantamount to a violation of the investigative powers conferred on the Senate by Section 88 and 89 of the Constitution.

In saying this, I draw considerable strength from foremost Senior Advocate and former Attorney-General of the Federation CHIEF RICHARD AKINJIDE, CON, SAN, FCI Arb. (UK) FCE COUNSEL had, had cause to comment on the extent powers conferred on the National Assembly by virtue of Sections 88 and 89 of the 1999 Constitution (as amended). In arguing that the said Section 88 and 89 are severally limited, we reproduce the views of the respected silk as follows:

“It is not open to the National Assembly or any of its Committee to clothe itself with the aprons of the Courts and purport to make decision on issues of legal rights and liabilities in blatant breach of the rule of the separation of power. The National Assembly has no power to make judicial decision, with judgmental flavour by means of political resolution or otherwise. The investigative power of the National Assembly does not extend to the grant of judicial relief or redress.

Recently, the House of Representatives Committee on Gas Resources invited SPDC to disclose the documentations in respect of its private commercial contractual transactions with other private contracting parties between the years 2012-2013. Upon being briefed, I wrote to the Committee on gas resources that the investigative powers provided under sections 88 and 89 of the 1999 Constitution do not extend to such exercise. I informed them that the Committee on Gas Resources was acting ultra vires the constitution.

There are occasions where the National Assembly has put a ban on the ability of private companies (whether foreign or local) to conduct business with other private companies in Nigeria. It is my opinion, and I so state that the National Assembly cannot legally put a ban on the ability of private companies (whether foreign or local) to conduct business with other private companies in Nigeria.

Proper Issuance and service of Summons by The National Assembly is a condition precedent for the order of attendance of witness (es) to give evidence.

The Issuance and service of a valid summons by the National Assembly is a condition precedent before a person can be ordered by the National Assembly to give evidence before it.

Section 89 (2) of the 1999 Constitution (as amended) provides as follows:

“(2) A summons or warrant issued under this section may be served or executed by any member of the Nigerian 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. “

Also, Section 5 of the Legislative Houses (powers and Privileges) Act provides:

“(1) Any order to attend, to give evidence or to produce documents before a committee of a legislative house in accordance with section 4 of this Act shall be notified to the person required to attend or to produce documents, by a summons under the hand of the Clerk of the House issued by the direction of the President or Speaker thereof.

(2) In every summons issued in accordance with subsection (1) of this section, there shall be stated the time when and the place where the person summoned is required to attend and, in the case of an order made in accordance with paragraph (b) of section 4 of this Act, the documents he is required to produce.

(3) Subject to the provisions of subsection (4) of this section, every such summons shall be served on the person mentioned therein by delivering to him a copy thereof and there shall be paid or tendered to the person so summoned such sum for expenses as may be authorised by standing order of the house.

(4) A summons issued in accordance with this section may be served by an officer of a legislative house or by a police officer:

Provided that the President or Speaker may, if he is satisfied that for any reason personal service of a summons cannot be effected, order that service be effected by forwarding the same by registered post addressed to the person to whom it is directed at his last known place of abode or business.”

For any summons issued and served on any person by the National Assembly to be competent, it must fulfill all the above stated conditions. If the National Assembly issues any summon which does not fulfill the above stated conditions, such summon is incompetent and can be set aside by a competent court.

Some months past, I advised a multinational Oil Company (name withheld because of Counsel/Client Privilege) which was invited by the National Assembly to tender certain documents. The National Assembly issued a purported summons which did not fulfill the above stated constitutional and statutory conditions. The matter died.

In the case of Ozobia v. Anah (1999) 5 NWLR (Pt.601) 1 at 7, F-G, Muhammad, and J.C.A (as he then was) held thus:

“It is my view that where a law places certain conditions precedent to the performance of a given act, such an act cannot be said to have been duly performed without the fulfillment of the stated conditions.”

In view of all the above, I state as follows: (a) That although the National Assembly has investigative powers it must be subject to the constitution. The powers are not without limits.

(b) Any actions or steps predicated on the National Assembly or the Senate House of Representatives’ Committee Recommendation which are ultra vires can be successfully challenged in law court. E.g the Ijaw Aborigines Case…

In sum, the declaration of the IGP as enemy of democracy is faulty in several respect particularly in the light of the foregoing arguments.

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