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Sunday, 24 June 2018

The senate can legally summon the IGP (Part 5)

The senate can legally summon the IGP (Part 5)

Mike Ozekhome

CURTAIN CALL

We shall today conclude our discourse on the undoubted power of the Senate to have invited IGP Idris over Police maltreatment of Senator Dino Melaye and the rampaging and unrestrained bloodletting by herdsmen across the country. In our outings so far, we posted up to 14 questions, with self-evident answers, as to why it was both constitutional and legal for the Senate to have invited the IGP.

LEGISLATIVE HOUSES (POWER AND PRIVILEGES) ACT (continues…)

What is clear from the above dictum cited last week is that in the Tony Momoh case: 1. He was not invited by the then Senate to “gather facts for the purpose of enabling them to make law or amend existing laws in respect of any matter within legislative competence”.

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For the records, Momoh, as Editor of the Daily Times, had been invited to disclose the source of an unpalatable article written critically against the Senate in the “Grape Vine” column of the newspaper.

The situation is therefore quite distinct from the Senate/Idris scenario, where the IGP was specifically invited to explain the inhuman treatment meted out to a Nigerian (Senator Dino Melaye), a matter over which it has powers to make fresh laws or amend the existing law, the Police Act (section 4 under which the IGP acted).

The invitation also bordered on the continuing onslaught by herdsmen across Nigeria, a major security issue that continually exposed the “inefficiency”, “waste” and “corruption” in the existing law (Police Act), which ought to propel the NASS to invoke section 4 of the 1999 Constitution (“to make laws for the peace, order and good government of Nigeria”), and to make or amend the existing Police Act, which is an Act within its legislative competence.

2. In the Senate/IGP saga, the purpose of the invitation was not, as in the Tony Momoh’s case, “to show resentment for the respondent (Momoh)’s affront in daring to publish something about highly placed legislators rather than a plan for the investigation of the members for abuse”. The purpose of the investigation was clear – to discover answers to matters it has powers to make laws on.

As held by the Court of Appeal in the Tony Momoh case, Senate’s power to “expose corruption, inefficiency, or waste is also limited to government departments, authorities, and functionaries”. Tony Momoh was neither of these. IGP Idris is such a “government functionary”. The Police he leads is a “government department”. Both the Police and Idris are “authorities”.

The two cases are therefore totally different.

A case is authority for what it decides, based on its peculiar facts. 4. Unlike in the Senate/IGP case, the Senate’s invitation over the abusive article written against the then Senate by the Tony Momoh – led Daily Times was not for the “purpose of enabling them to make law or amend existing laws in respect of any matter within their legislative competence”.

Indeed, in the often misquoted El Rufai’s case, the Court of Appeal actually agreed that the lower court was right in striking out El Rufai’s suit, on the ground that “if in obedience to the summons, the Appellant (El Rufai) reported to the Committee and the Committee decided to take any step in excess of powers conferred upon it, or in the same process some of the fundamental rights of the Appellant were actually violated, or threats of such violation were imminent, then the Appellant would have every right to run to a court of law for a relief. That is not the actual case in this matter.

The Appellant, in my view, developed an anticipated fear of violation of his fundamental right. A court of law acts on reality, i.e, what has actually taken place, or is taking place at the time of complaint. Hardly has speculation any place in law. If there is allegation, then there must be proof to substantiate that allegation… I agree that the lower court was right in striking out the Appellant’s suit”.

Thus, contrary to the wrong notion propagated by the anti – IGP invitation, El Rufai’s case actually suffered a premature death. In any case, in the El Rufai’s case, unlike in the Senate/IGP case, the House of Representatives were angered by the insultive utterances credited to El Rufai concerning the then privatization of NITEL by the BPE, which he headed.

The court, unlike the present case, actually found a predetermined bid to nail El Rufai at all cost. It thus held as follows: “It is apparent that the 1st Defendant was displeased with the conduct or utterances credited to the plaintiff and was intent on taking further steps following its antecedent determination.

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That this was the intention of the 1st Defendant which is made clear by the opening paragraph of the letter which stated that the Plaintiff had published defamatory matters concerning it. The 1st has also determined that the Plaintiff’s conduct and utterances were contemptuous and a breach of its priviledges.

Having made that determination, the referral of the matter to its committee on ethics and priviledges for investigation can only be in the further pursuit of the decision earlier reached”. The Diezani Alison Maduekwe case which I handled against the House of Representatives was also based on its peculiar circumstances; hence the injunction I secured.

Those who have gleefully, but mischieviously cited this case, did so out of context and facts. Diezani as Minister of Petroleum Resources was, to put it mildly, terrorized with unceasingbarrage of invitations, over 70 invitations in one year alone.

She was serially invited by several committees on the same issues – Committees on Finance, Public Accounts, Petroleum, Downstream, Upstream, etc. she found herself daily starting and closing work with various House Committees, which would not brood any proxy representation by her representatives.

As she complained in the suit, her ministry was literally annexed to the House of Representatives, thus, disallowing her from carrying out her duties as a minister. She cried foul.

The court gave her respite through an injunction secured by me. Section 82 (2), now section 88(2), as held by the Court of Appeal in the Tony Momoh case, was clearly “designed to eliminate abuse”.

The Diezani and Tony Momoh cases showed clearly cases of abuse, which is not the case in the Senate/IGP saga.

WAS THE IGP RIGHT TO HAVE INSISTED ON SENDING A REPRESENTATIVE?

The answer is a loud no. the legal maxim is “delegates non protest delegate” (a delegate of power cannot himself delegate). See Shitta-Bey vs. A.G Federation & Anor (1998) LPELR – 3055 (SC) and Ezenwa Brothers Nigeria LTD vs. Ona-Jones Nigeria Ltd (2012) LPELR – 9789 (CA).

The IGP falls within section 89 (1) (C) of the 1999 Constitution, which empowers the Senate to summon “ANY PERSON”. It did not say “any person or his representatives”. In statutory interpretation, the express mentioning of one thing totally excludes all others. This is expressed in the latin maxim of “expression unius est exclusion alterius”.

See Commissioner for local government & Chieftaincy Affairs & Anor vs. Onakade (2016) LPELR – 41133 (CA) and Ehuwa vs Ondo State I.E.C &Ors(2006) 11 – 12 S.C 102.

The Police Act which permits the IGP to delegate his functions is inferior and subservient to the superior provisions of the Constitution (the grund norm), which stipulates “any person”.

The IGP is such person. Thus, he cannot rely on his powers to delegate functions to inferior officers under the Police Act, to override the clear powers of the Senate under section 89 (1) (d) of the same Constitution, the Senate can issue a warrant for the IGP’s arrest, with a view to compelling his attendance.

In any event, it is infra dug of the IGP to usurp the powers of the courts to determine whether the reasons adduced by the Senate in summoning him are legal or constitutional, or fall within sections 88 and 89 of the Constitution.

That is within the province of the courts that have the duty to interpret our laws. I humbly submit that the IGP had two options: First, appear before the Senate, hear it out and refuse to answer some questions he considered disadvantageous.

Second, he could approach the courts to challenge the summons, as he had unsuccessfully done in a sister case. Spiteful refusal to honour the Senate’s summons was no option at all. I am done.

THOUGHT FOR THE WEEK

“The police must obey the law while enforcing the law.” (Earl Warren).

LAST LINE

Nigerians, please continue to engage me in the national conversation whilst awaiting explosive topic of Sunday Sermon on the Mount of the Nigerian Project by Chief Mike Ozekhome, SAN, OFR, FCIArb., Ph.D, LL.D.

• Follow me on twitter @ MikeozekhomeSAN

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