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NASS vs Buhari: Nigerian Constitution on trial, lawyers insist

By Joseph Onyekwere (Lagos) and Adamu Abuh (Abuja)
11 December 2020   |   3:40 am
Following a declaration by the Attorney General and Minister of Justice, Abubakar Malami (SAN), that the appearance of President Muhammadu Buhari before the National Assembly is discretionary, lawyers

Buhari. Photo: TWITTER/NIGERIAGOV

AGF did not act in good faith, says SAN
• ‘Failure to appear will breach constitutional provisions’
• Malami is correct, another lawyer counters
• Minister’s advice will ridicule you, Reps caucus tell Buhari
• House leadership says it can’t compel Buhari

Following a declaration by the Attorney General and Minister of Justice, Abubakar Malami (SAN), that the appearance of President Muhammadu Buhari before the National Assembly is discretionary, lawyers have said the development has put the Nigerian Constitution on trial.

Malami had made the statement in opposition to an invitation to the President by the House of Representatives to explain the worsening security situation in the country, among other matters.

Lawyers’ reactions came just as the leadership of the House disclosed, yesterday, that the President had not formally communicated whether he would appear before it as earlier scheduled or not. Chairman, House Committee on Media and Public Affairs, Hon. Benjamin Kalu stated this in an update on the matter.

Malami had declared that because the issue the National Assembly intended to interrogate the President on bordered on national security, the President’s visit to the National Assembly could not be at the behest of the lawmakers.

But while some lawyers describe the statement by Malami as unconstitutional, others argue that since the President is covered by immunity as stated in Section 308 of the 1999 Constitution, the position of the AGF is in order.

Human rights lawyer, Joe Nwokedi, said the AGF did not act in good faith. According to him, the National Assembly has the constitutional right to summon the President to address them on the affairs of the nation.

He maintained that since security issues fell under the affairs of the nation, it was immaterial whether the President enjoyed confidentiality on those matters.

“I know he (Malami) might be trying to anchor his reason on disclosure of certain kinds of security strategy in combating crimes, but nobody is asking him to play the role of combatant soldiers by disclosing the level of weapons and strategy the military use.

“It is the constitutional right of Nigerians to hear from him and to know what the administration is undergoing as regards certain aspects of governance. The National Assembly has the right to summon the President at any point in time they feel it is appropriate to address the nation on certain issues.

“For me, inviting the President to the National Assembly is supposed to be something that the President should be excited about because it would provide him with the opportunity to clear the air on certain issues and misconceptions,” Nwokedi said.

ANOTHER lawyer, Norrison Quakers (SAN), supported the argument that Section 88 of the 1999 Constitution empowered lawmakers to summon anyone exercising powers under the Constitution and under laws enacted by the National Assembly.

“Did the President swear an oath of allegiance to the Federal Republic of Nigeria? Yes, he swore to uphold the provisions of the Constitution, and by the Constitution, legislative power is vested in the National Assembly,” he insisted, stressing that the Constitution is binding on all authorities in the country as provided in Section 1 (1) of the Constitution.

Dismissing the argument about the difficulty of arresting the President if he failed to honour summons as provided in Section 89(2) of the Constitution, Quakers argued that the lawmakers could exercise their powers under Section 143, which relates to impeachment.

“Are you aware, under Section 143, the President can be impeached for failure to comply with the provision of the Constitution, even though the National Assembly does not have the power to affect his arrest? If constitutional breaches have occurred, they have the power to impeach, but here, we politicise everything. If the President can present his budget in the joint sitting of the National Assembly if the National Assembly can approve the President’s spending through budget allocation, why can’t the National Assembly look into the operational use of the military without necessarily going into details,” he asked.

Former second vice president of the Nigerian Bar Association (NBA), Monday Ubani, said inviting the President is part of the oversight function of lawmakers.

On the issue of immunity, he said the President could not be taken to court going by Section 308 but could be investigated based on the judgment of the Supreme Court in IGP Vs Fawehinmi. “He can be invited and if he refuses, they persuade him, and if he refuses, they leave it there,” he said.

However, a human rights lawyer, Inibehe Effiong, argued Malami is correct in his view that the National Assembly has no power to compel President Buhari to appear before them.

According to him, section 67 (1) of the 1999 Constitution gives the President discretion whether to attend to the National Assembly summons or not.

Section 67(1) states: “The President may attend any joint meeting of the National Assembly or any meeting of either House of the National Assembly, either to deliver an address on national affairs, including fiscal measures or to make such statement on the policy of the government as he considers to be of national importance.”

The operative word in this provision, the lawyer argued, is “may”.

“The word “may” in-law conveys discretion; unlike the word shall which conveys a mandatory or compulsory meaning. This discretion is consistent with the presidential system of government,” he said.

Effiong explained that resolutions of the National Assembly would not have binding force. “National Assembly can only exercise compulsive powers through lawmaking as provided for in Section 58 and 59 of the Constitution. The National Assembly cannot issue a warrant for the President’s arrest.

“Section 308 (1) (b) of the Constitution gives the President, vice president, governors and their deputies immunity from arrest and imprisonment. However, under Section 67 (2) of the Constitution, the National Assembly can compel a minister’s attendance,” he added.

Former attorney general of Abia State, Chief Awa Kalu (SAN), said the question was not only about power but also the reasonableness of summoning a president under a presidential system of government.

“What we have is a presidential system, not a parliamentary system. So, a lot of people believe when you have a president who absorbs the totality of executive power, it does not make sense to belittle him by inviting him?

“What kind of questions would the National Assembly have in mind that ministers and other functionaries of government cannot answer? What is that question that only the President can address? Does it speak well of our system, if it must be the President that would clarify whatever the issue is? So it is not whether the power is there, but the reasonableness of exercising that power,” he contended.

MEANWHILE, the Minority Caucus in the House of Representatives has cautioned Malami against ridiculing President Buhari before Nigerians.

The caucus, led by Mr. Ndudi Elumelu, faulted the claim by Malami that the National Assembly lacked powers to invite the President to address Nigerians on insecurity in the country.

The assertion by Malami, the caucus said, portrayed him as an officer, not in touch with the laws and the realities on ground.

“Mr. President’s apparent backward steps on the invitation just because handlers like Abubakar Malami are afraid of the people, puts him in very bad light before Nigerians and the world”, the caucus stated.

The caucus, in a statement, described as “reckless “ the claims by the Attorney General that by inviting Mr. President to address Nigerians, the House of Representatives overstepped its bounds.

Pointing out that the fundamental reason for the existence of any government is the security of life and property of citizens, the caucus said: “Today, Nigerians are killed, kidnapped and maimed in all parts of our country. Nigerians live in constant fear and they are asking questions; they seek reassurances, which only Mr. President can offer.

“As elected representatives of the Nigerian people, members of the House of Representatives are mandated by law to ask questions on the state of the nation, especially on issues of security and that informed the invitation to President Buhari.

“It is therefore sad and a great disservice to the nation and the President that the only opportunity Mr. President had to remedy his name by addressing Nigerians through their elected representatives is being thwarted by individuals pursuing their selfish interest not the interest of Mr. President or that of Nigerians.”

THE leadership of the House of Representatives has, however, explained that it will not take any punitive measure against President Buhari if he fails to appear before it because it lacks the power to do so.

Spokesperson for the House, Mr. Benjamin Kalu, said the House had no powers to arrest anyone who failed to honour invitation or summon by the House.

Kalu’s explanation came shortly after the Speaker of the House, Mr. Gbajabiamila tacitly blocked moves by a member, Mr. Solomon Bob (Rivers, PDP), to compel the lower legislative chamber to deliberate on the President’s refusal to appear before them.

Relying on the Order of Privileges, Bob had said: “Last week, I recall, this House passed a resolution. Subsequently, I read that the President has considered our request.

“If this House can pass a resolution and we have a situation where such a resolution is abused, it means our very existence is being questioned. I think the Speaker should address us on the current situation. The entire country is watching. It bothers me.”

But Gbajabiamila knocked out the motion, saying: “Honourable, your point of privilege is well noted. We wait for official communications from Mr. President as opposed to newspaper publications.”

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