…Says NASS lacks constitutional powers to summon President
…No formal communication on the issue — House spokesman
…Malami speaking APC’s mind — Reps Minority Leader
…We ‘re not part of Buhari’s summon to NASS — Senators
….President should’nt come, says Omo-Agege
…SANs back Malami, say NASS can’t summon President
By Ikechukwu Nnochiri, Levinus Nwabughiogu & Tordue Salem
Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN, said yesterday the National Assembly lacks the constitutional powers to summon President Muhammadu Buhari over worsening security situation in the country.
The House of Representatives had, in the wake of the killing of 43 rice farmers at Zabarmari, Borno State, by Boko Haram, summoned the President to appear before a joint session of the National Assembly to give explanations on the security situation in the country.
But the AGF in a statement he personally signed in Abuja, said the right of the President to engage the NASS and appear before it “is inherently discretionary.”
He argued that NASS has no constitutional powers to envisage or contemplate a situation where the President would be summoned to explain operational use of the Armed Forces.
Malami insisted that President Buhari “has recorded tremendous success in containing the hitherto incessant bombing, colossal killings, wanton destruction of lives and property that bedeviled the country before assuming power in 2015.”
He said: “The confidentiality of strategies employed by the President as Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria is not open for public exposure, in view of security implications and not to undermine the war against terror.
“The fact that President Muhammadu Buhari was instrumental to the reclaiming of over 14 local governments previously controlled by Boko Haram in the North-East is an open secret, the strategies for such achievement are not open for public expose.”
National security not about publicity — Malami
While condoling the bereaved and sympathizing with the victims of the associated insecurity in the country, Malami maintained that national security was not about publicity.
According to him, the nation’s security architecture cannot be exposed for the sake of getting publicity.
“Mr. President has constitutional privileges attached to the Office of the President, including confidentiality in security operational matters,” he said.
The AGF contended that President Buhari has the right to decide whether or not he would appear before the legislative arm of the government, adding that such appearance would not be at the behest of the National Assembly.
He said: “The management and control of the security sector is exclusively vested in the President by Section 218 (1) of the Constitution as Commander-in-Chief of the Armed Forces, including the power to determine the operational use of the Armed Forces.
“An invitation that seeks to put the operational use of the Armed Forces to a public interrogation is indeed taking the constitutional rights of law making beyond bounds.
“As the Commander-in-Chief, the President has exclusivity on security and has confidentiality over security.
“These powers and rights he does not share. So, by summoning the President on national security operational matters, the House of Representative operated outside constitutional bounds.
“President’s exclusivity of constitutional confidentiality investiture within the context of the constitution remains sacrosanct.”
How volte-face on summons came about
Though President Buhari initially agreed to honour the summons today, he subsequently made a volte-face and shelved his scheduled appearance before the House of Reps.
Signs that the President would not honour the summons emerged on Tuesday night with series of meetings of different camps of lawmakers and some governors of the ruling All Progressives Congress, APC, at the National Assembly.
Sources told Vanguard that PDP caucus met on the second floor of the House of Representatives wing (New building) to strategize on the President’s visit.
Their agenda, it was learned, was to pose some questions and actions that may appear embarrassing to the President.
While they were meeting, Vanguard learned that another meeting that involved Governors Aminu Masari of Katsina State and Hope Uzodinma of Imo State with Senate President, Ahmed Lawan, Speaker of the House, Femi Gbajabiamila, and some APC principal officers in the House held at Room 028 same night.
Sources who craved anonymity, also said the Senate had completely pulled out of the meeting, saying it was a House affair, even as senators insisted on the sack of the service chiefs.
It was learned APC governors advised against the President’s appearance before the lawmakers for fear of being embarrassed.
They expressed shock that many of the APC lawmakers are in cahoots with their PDP counterparts in the embarrassment plot.
But on his part, Gbajabiamila was said to have pleaded for understanding, assuring that there was no cause to back down on the President’s appearance.
His plea was, however, said to have fell on deaf ears.
When contacted House spokesman, Benjamin Kalu, for reaction on the issue, he said the House was yet to get official communication from the Presidency.
“We are yet to be communicated formally that the President is not coming,” he told Vanguard.
Malami speaking APC’s mind — Deputy Minority Leader
Reacting to the AGF’s statement last night, Deputy Minority Leader of the House of Representatives, Toby Okechukwu, said Malami was only airing the position of the ruling All Progressives Congress, APC.
He said: “The invitation was a prudent effort on the part of the legislature to find a lasting solution to the worsening insecurity in the country and the President’s willingness to appear was evident in his interaction with Speaker of the House of Representatives, Femi Gbajabiamila.
“Without making undue efforts to win an argument, Section 89 (1) of the 1999 Constitution as amended clearly empowers the Senate or the House of Representatives or a committee appointed in accordance with Section 62 of the Constitution to procure evidence, written or oral and to “summon any person in Nigeria to give evidence at any place.
“Therefore, the attempt to pressurise the President not to appear clearly shows that some highly-placed political actors in the ruling party are placing politics over the protection of lives of Nigerians. The APC is evidently fiddling with propaganda and politics while Nigeria burns.”
The lawmaker, who represents Aninri/Awgu/Oji River Federal Constituency, Enugu State, described as “unfortunate a situation where every invitation by a branch of government to another branch to interact towards addressing any national challenges was considered as demeaning, thereby triggering unnecessary flexing of muscles.
“It is evident from APC’s position as made public by the AGF that the safety of Nigerian citizens would take a back seat in the next few days, while the argument over who is right or wrong unfortunately takes the front seat,” he added.
He, therefore, called on President Buhari to rise above the legalese and political fray to show leadership in order to rally Nigerian people and their parliament to find lasting solutions to the growing insecurity in the country.”
Senate distances self from invitation
The Senate yesterday dissociated itself from the invitation extended to President Muhammadu Buhari by the House of Representatives.
Speaking to Journalists in Abuja, the Deputy Senate President, Ovie Omo-Agege, said the invitation was uncalled for, asking the President not to honour it.
Omo-Agege said: “I am a constitutionalist. I believe we are operating a presidential system of government. I believe in the concept of the separation of powers. We have three equal arms of government.
“The framers of our constitution did not envisage that one arm of government will be summoning the head of another co-equal arm of government to come and offer explanation on the floor.
“I think those of you who are familiar with the constitutional process, I don’t think you’ve ever heard that the US parliament had ever invited their president to appear before the House of Representatives or the US Senate unless for the purpose of budget or to address the state of the nation.
“In any event, we also have the concept of executive privilege. The executive arm of government has the power to claim executive privilege at any time any of such invitation is extended.
“It is not envisaged by the framers of the constitution that a day will come when the President of the Federal Republic of Nigeria who heads the executive arm would be asked to come and testify in the House of Representatives or the Senate. I do not also support that. I don’t believe the President should come.”
It’s a Reps affair — Senate spokesman
Also speaking, the Senate spokesperson, Senator Ajibola Basiru, said the invitation was completely the affair of the House.
“I’m a spokesperson of the Nigerian Senate. There was no resolution of the Nigerian Senate that the President should come and address it on the issue of national security. I expect that every inquiry as to the summoning and coming of the President should be directed to the House of Representatives.
“We operate a bicameral legislature. That’s why our rules and procedures are different and that is why also we need concurrence from the two houses on passing of legislation.
“On this matter, there has not been an issue of a joint resolution. What you have is resolution of the House of Representatives, and I believe, the House of Representatives should be able to tell you why the resolution was passed, and what will happen to that resolution.
“As far as the Senate is concerned, we have not summoned the president and we don’t want to get ourselves involved in any controversy as to whether the president will appear ot not.
“To the best of my knowledge I’m not aware of any planned joint session of the National Assembly tomorrow,” he said.
On the statement by the Minister of Justice, Abubakar Malami that the National Assembly has no power to summon the President, he said: “I’ m a legal practitioner, I have not read what Malami has said. When I read it, if it affects the Nigerian Senate, I will respond. I can’t be responding to hearsay.
“Secondly, there has not been any communication as to the National Assembly expecting the President as far as the Senate is concerned. Our resolution still remains that the President should hear the voice of the Nigerian Senate that service chiefs should be examined, dropped, so we can have a re-energized security architecture in the country.”
SANs back Malami
Meanwhile, Senior Advocates of Nigeria, SANs, yesterday agreed with the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN, that the National Assembly was bereft of the constitutional powers to summon President Muhammadu Buhari.
In separate interviews with Vanguard, the senior lawyers said NASS could, however, extend an invitation to the President to appear and address it on any national issue, adding that he has the right to either honour or discard the invitation.
Professor Epiphany Azinge, SAN, said: “There may be some merit in what the Attorney-General of the Federation has said.
“The force of logic seems to support his assertion that the President ought not to have been ordinarily summoned by the NASS.
“The President may be invited, but that invitation does not translate to a summons. A summons presupposes that there may be a consequence if the President declines to honour it.
“Section 67 (1) of the Constitution provides that the President may attend any joint meeting of the NASS or any meeting of either House of the NASS, 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.
“While Section 67(2) states that a Minister shall attend either House of the NASS if invited to explain to the House the conduct of his Ministry, and in particular when the affairs of that Ministry is under discussion.
“Between Sections 67(1) and 67(2), there is a clear direction that the President may attend on his own accord, but the Minister can be invited to explain, which is tantamount to a summons.
“Those that may be summoned by the NASS are principal officers of the executive and not the President per se.
“There is therefore the force of logic and merit in the argument that the President ought not and should not be summoned.”
Similarly, Dayo Akinlaja, SAN, said: “If the Attorney-General of the Federation is talking from the perspective that the President cannot be compelled to appear before the National Assembly by virtue of the constitutional immunity that is conferred on him, then I will agree with him.
“But I think that it will be absolutely wrong for the President to ignore the National Assembly. Section 67 of the Constitution allows the President to attend any joint meeting of the National Assembly or any meeting of either House of the National Assembly.
“The Constitution says the President may attend to present an address on national issues. On that basis, I believe the President can be invited by the NASS.
“It may be argued that the word summon is too strong. It may be apt the say that the President can be invited by the NASS, going by the provisions of Section 67 and Section 88 of the Constitution.
“Therefore it is not out of place for the NASS to invite the President to come and address it on issues of national importance that pertains to the welfare and well-being of citizens.
“The NASS however does not have the means to coerce the President to appear before it. It may not be proper, therefore, to use the word summon. It will be nicer to say that the NASS has the right to invite the President.
“On the other hand, the President can only act at his own political peril to ignore such invitation. The primary reason for the existence of government is security and welfare of the people. If the NASS is inviting the President by virtue of his unique position as the Chief Security Officer, if the President refuse to honour the invitation, it will send a signal that he is insensitive to the plight of the people.
“Everyone is aware of what is happening in the country. It will smack of downright insensitivity on the part of the Executive to say that the President will just ignore request by NASS for him to appear and address the nation.
“The NASS is an amalgam of political representatives of the people, so, they are presumed to be speaking on behalf of the population.
“It is assumed that it is the citizens that invited him to come. The NASS is acting on a mandate given to them by the people and the President ought to honour the invite, especially as it borders on burning issue of security.
“It is more of a moral burden on the President that being legalistic. As much as the NASS can’t compel the President to appear, it will be downright insensitive and politically unwise for the President to ignore the invitation because he cannot be compelled by the NASS.”
Another SAN differs
However, their colleague, Ahmed Raji, SAN, disagreed with the AGF, even as he called for the country to switch to what he termed as “modified parliamentary system of government.”
He said: “I don’t know the law that the Attorney-General of the Federation is quoting that forbids the NASS from inviting the President.
“Statement like this from unelected public officials clearly reinforces the need for us to move away from the presidential system of government.
“I wonder how it will sound for anyone in Britain to argue that the Prime Minister cannot be summoned by the parliament when the Prime Minister is himself a member of that parliament.
“I think the best thing is for us to adopt a modified parliamentary system of government. Perhaps, either of the two arms of government can approach the court for an interpretation of what the law really is. But I disagree with the AGF. His statement is 90% politics and probably 10% law. He is not talking law, but politics.”