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Tuesday, 15 May 2018

‘National Assembly has power to summon IGP’– Sebastine SAN

‘National Assembly has power to summon IGP’– Sebastine SAN

Sebastine Hon (SAN)

Renowned legal author and constitutional lawyer Sebastine T. Hon (SAN) argues that the Senate can summon any public officer.

So much controversy has been generated over the power of the Senate to summon the Inspector-General of Police, Mr. Ibrahim Idris Kpotum, to appear before it.

Without the slightest hesitation or equivocation, I submit that the National Assembly is imbued with that power; and any person exercising statutory functions who shuns or spurns any invitation or summons lawfully issued by the National Assembly is prima facie guilty of contempt of the Legislature, except if he enjoys immunity from prosecution.

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The invitation issued by the Senate has the backing of the 1999 Constitution, as amended. It also has the backing of settled case law, both locally internationally. I shall now, brevi manu, examine all the relevant legal and constitutional positions.

Section 88(1)(b)(i) of the Constitution has imbued the National Assembly with power to “direct or cause to be directed an investigation” into:

“(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 the National Assembly.”

Also, section 88(2)(a) and (b) of the Constitution permits this investigation, if it is targeted at enabling the National Assembly to: (a) make laws with respect to any matter within its legislative competence and to 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 to it.

The phrases “conduct of any person, authority, Ministry or government department,” in this case, refers to the conduct of the office and department of the Police, headed by and personified in the Inspector-General of Police.

Legislative wisdom was completed in the framing of the remaining part of section 88(1)(b)(i), when the lawmaker enacted that the “conduct” of any such “person, authority, Ministry or government department” is permissible if he/it is “charged, or intended to be charged, with the duty of or responsibility for” executing or administering laws enacted by the National Assembly.

There is no single doubt that the Inspector-General of Police is, under the provisions of the Police Act, 2004, charged with the responsibility of executing or administering laws made by the National Assembly.

It was in that regard that his officers attempted to arrest Senator Dino Melaye and take him to Lokoja, Kogi State, Also, using the very words of the Constitution, if the Senate has issues with the “conduct” of officers of the police department who handled the arrest of Senator Dino Melaye, it has every constitutional right to “direct or cause to be directed an investigation” into such “conduct.”

I shall later in this piece address on the motives, if any, read into the invitation by the Senate to the Inspector-General of Police.

Constitutional reinforcement of the above view can be found in section 88(2)(a) and (b), where the oversight powers of the National Assembly are expressly limited to the purpose of enabling it to make laws within its legislative competence; and to the purpose of enabling it, inter alia, to expose “incompetence.”

Clearly, by Item 45 of Part 1 of the Second Schedule to the Constitution, the National Assembly has exclusive legislative powers over “Police and other government security services established by law.”

If there is, therefore, an apparent case of ‘incompetence’ in the arrest of Senator Melaye or of policing the flashpoints in Nigeria – as is prima facie evidently shown, the Senate has every right to summon any officer of the police department, ala the Inspector-General of Police, to explain to its satisfaction the public stench oozing from the inglorious outing of the police.

There is nothing personal or tendentious here: the Senate is merely scrupulously performing its constitutional functions. The Senate should be commended rather than serenaded for taking this step.

We will now look at case law. In the celebrated case of Senate of the National Assembly vs. Momoh (1982) 2 FNLR 307, the Court of Appeal held, inter alia, that the 1979 constitutional equivalent of section 88 of the 1999 Constitution enabled either House of the National Assembly to exercise the powers named therein only with respect to “any matter or thing” it had power to make laws ‘and the conduct of any person, authority, ministry, or government department.’

In other words, that the section did not generally authorise the National Assembly to invite members of the public over statements made by them. Consequently, that the power to expose corruption or inefficiency was limited to government departments and functionaries. 

This decision was cited with approval by the Court of Appeal in El Rufai vs. House of Representatives (2003) FWLR (Pt. 173) 162. Without any doubt, Mr. Ibrahim Idris Kpotum is the Inspector-General of Police and not a member of the public.

Also, in Attorney-General of Abia State vs. Attorney-General of the Federation (2006) All FWLR (Pt. 338) 604 at 674, Lord Justice Tobi, JSC, defined “oversight functions” of the National Assembly to include “watchful supervision;” and that those powers are exercised by the Legislature “to conduct investigations, control and surveillance… and control and supervision of government general business.”

He concluded, however, that if exercised by the National Assembly, such powers must be limited to its lawmaking powers.

In this case, therefore, the summons extended to the Inspector-General of Police was and remains constitutional, since as shown above, Item 45 of Part 1 of the 2nd Schedule to the Constitution has vested the National Assembly with lawmaking powers over “Police and other government security services established by law.”

He was wrong to have ignored it or to have delegated a junior officer, since the buck stops at his table. I wonder if Mr. Idris will delegate a junior officer if it is the President that invites him.

A peep into foreign decisions, in countries practicing presidential constitutionalism, will also agree with the above position. In the celebrated US case of Watkins vs. United States, 354 US 178, 187 (1957) – a decision the Nigerian Court of Appeal adopted in Momoh’s case, supra –  the US Supreme Court described the extent of the investigative or oversight functions of Congress as encompassing:

[I]nquiries concerning the administration of existing laws as well as proposed to possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.

The phrase “surveys of defects in our social, economic or political system” in the above dictum is wide enough to include the IGP Idris Kpotum saga.

In similar fashion, it was held in McGrain vs. Daugherty, 273 US 135 (1927) that investigation by the Senate as to whether the Justice Department of the US Federal Government was performing or neglecting its duty was constitutionally proper, because this rightly fell under congressional oversight functions.

Arguments that the resolution of Congress did not specifically state that the investigation was in aid of legislation, hence was invalid, were rejected.

The US Supreme Court concluded that a legislative purpose is always to be presumed once the subject matter falls within the legislative jurisdiction of Congress; because the “only legitimate object the Senate could have in ordering the investigation was to aid it in legislating.”

In the Dino Melaye saga, arguments in particular, are tailored toward alleged bias or egotism on the part of the Senate. In constitutional jurisprudence, such arguments are puerile and pale into thin air. This is because presumption that valid congressional investigation has no ulterior motives apart from aiding Congress to enact or improve upon existing legislation is always upheld.

Thus, in both Tenney vs. Brandhove, 341 US 367, 377-378 (1951) and Barenblatt vs. United States, 360 US 109 (1959) at 132-133, the US Supreme Court validated congressional investigations and threw out arguments that individual members of Congress had personal and political interests to serve.

The Court reasoned that in all circumstances, in so far as Congress has legislative powers over the subject matter, the presumption that it is investigating for lawmaking purpose only should always be upheld. See, also, Townsend vs. United States, 95 F 2d 352, 361 (D.C. Cir. 1938).

In the present case, Mr. Idris’s invitation, which includes an inquest into the vicious killings going in the Benue Trough and other parts of Nigeria, cannot be unconstitutional for any reason, both constitutional and commonsensical.

From the above, therefore, the invitation issued by the Senate to the Inspector-General of Police, Ibrahim Idris Kpotum, was and remains valid and constitutional.

His refusal to honour it amounted and still amounts to a gross breach of the Constitution; and the Senate ought not to have merely declared him person non grata but to have issued a warrant for his arrest and citation for contempt, pursuant to section 89 of the 1999 Constitution, as amended. Declaring him persona non grata is, with respect, too mild.

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