The attorney general of the federation and minister of justice, Mr. Abubakar Malami has come under severe criticism as his statement that the House of Representatives has no power to invite the president is believed to responsible for President Muhammadu Buhari’s refusal to honour the lawmakers’ summons.
It would be recalled that the speaker of the House, Mr. Femi Gbajabiamila, had told journalists on Wednesday, December 2 when he led a delegation to convey the House’s invitation to Buhari that the president had pledged to honour the invitation.
A presidential aide, Ms. Lauretta Onochie also took to her twitter handle announcing that Buhari would appear before a joint session of the national assembly today, Thursday.
Malami is a statement yesterday entitled ‘Buhari’s summon: NASS operates outside constitutional bounds’ Malami contended that security matters remain the exclusive preserve of the executive.
“The management and control of the security sector is exclusively vested in the President by Section 218 (1) of the Constitution as the 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.”
Malami said the president could freely address the national assembly when he wants but could not be summoned to do so.
“Mr. President has enjoyed constitutional privileges attached to the office of the president including exclusivity and confidentiality investiture in security operational matters, which remains sacrosanct.”
He added that the national assembly has no “constitutional power to envisage or contemplate a situation where the president would be summoned by the national assembly on operational use of the armed forces.
“The right of the president to engage the national assembly and appear before it is inherently discretionary in the president and not at the behest of the national assembly.”
He said Buhari had been able to effectively tackle insecurity and recover lands that were hitherto occupied by Boko Haram.
“President Muhammadu Buhari of the Federal Republic of Nigeria has recorded tremendous success in containing the hitherto incessant bombing, colossal killings, wanton destruction of lives and property that bedeviled the country before attaining the helm of affairs of the country in 2015.
“The confidentiality of strategies employed by the President as the commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria is not open for public exposure in view of security implications in probable undermining of the war against terror.
“The fact that President Muhammadu Buhari was instrumental to the reclaiming of over 14 local governments previously controlled by the Boko Haram in northeast is an open secret, the strategies for such achievement are not open for public expose,” he added.
Malami condoled the bereaved families and sympathised with the victims of insecurity in the country, but maintained that national security is not about publicity and the nation’s security architecture cannot be exposed for the sake of getting publicity.
But many senior lawyers including one of Messrs Akin Olujimi, Femi Falana, and Raji Ahmed disagreed with Malami on his verdict that the House lacks the constitutional power to invite the president, especially on security issues.
They cited various constitutional provisions that empower the lawmakers to invite the president or any other public officer to answer questions on any issue.
According to Olujimi, the national assembly has a duty to call on anyone, including the president, when the need arises.
“When matters like these happen, particularly the issue of security, they are entitled to find out from the number one citizen what exactly he is doing or proposing to do in regards to the insecurity in the country.
“It is not an issue that we begin to debate the constitutionality or otherwise of the call on Mr. President,” he said.
For his part, Falana described Malami’s statement as just “an attempt to look for justification for the unsolicited advice of the state governors.”
He, however, appealed to the president to ignore the governors’ advice, which is not only misleading but aimed at putting him to ridicule.
“Having undertaken to honour the invitation, the president should ignore the misleading advice of those trying to expose him to ridicule by portraying the president as inconsistent or a man who cannot honour his own words,” he stated.
On the legality of the summon, Falana said sections 88 and 89 of the constitution as amended empower the national assembly to summon any public officer in the country.
“The fact that the president is the commander-in-chief of the armed forces does not inhibit the National Assembly from asking him to explain what has happened to the funds earmarked for the defence of the country,” Falana said.
Raji, however, described Malami’s argument as “90 per cent in political content and less than 10 per cent of law.”
While noting that the court is the best place to decide whether the National Assembly has the powers or not to summon the president, Raji called for a jettisoning of the presidential system of government currently practised in Nigeria.
“I think the matter should be tested in court. But most importantly, we should jettison the presidential system for a modified parliamentary system. I wonder if any state official will ever talk down on the House of Commons in the UK this way! I doubt if such can be uttered in any presidential system, including the USA,” he said.
Another senior lawyer, Mr. Dayo Akinlaja, noted that what the National Assembly has done is not out of place when the provisions of Sections 14, 67, 88 and 218 (4) (a) of the constitution are taken into consideration.
“Much as it is beyond debate that the National Assembly cannot compel the president to appear, it is not subject to disputation that the National Assembly can invite the president to appear before it so as to address the members on the fundamental issue of national security,” he said.
According to him, it will be downright insensitive and imprudent for the presidency to condemn the National Assembly by dishonouring the invitation, especially with the critical state of the nation’s security and general wellbeing.
“The national assembly has unquestionable power to legislate on the issue of national security. That being so, it can invite the president and or institute investigation into issues of national security. It may, however, be said that the word “summon” is too trenchant to be used in the context of the president. The more civil way to it is to say that the National Assembly has a right to invite the president,” he explained.
The House Deputy Minority Leader, Hon. Toby Okechukwu, also faulted Malami’s position.
He said the attempt to pressurise Buhari not to appear before the National Assembly shows that some highly placed political actors in the ruling party are placing politics over the protection of lives of Nigerians.
Okechukwu, in a statement yesterday, described Malami’s position as “strange.”
He stated: “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 Mr. 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.”
Okechukwu added that the invitation of the House was a prudent effort to find a lasting solution to the worsening insecurity in the country.
An erstwhile political adviser to former President Olusegun Obasanjo, Mr. Akin Osuntokun, said though the national assembly has the powers to invite Buhari, the resolutions to do so only carry the force of moral and political persuasion.
“I think what he is saying is that they cannot mandate him to come; that the invitation is not legally binding. Not that they have no right to invite him. He can nonetheless decline the invitation. Plenary resolutions, including the resolution to invite him, only carry the force of moral and political persuasion.
“Normally it is the president who requests the National Assembly to invite him for the mandatory annual budget presentation or as it is the case in the United States to give the state of the union address.
“However Nigeria is in a desperate social, political and economic situation that warrants such an invitation from the National Assembly. The problem is that, largely on account of its persistent immoral behaviour, this National Assembly doesn’t command anyone’s respect.”
However, former minority leader of the House, Mr. Farouk Aliyu, said Muhammadu Buhari is not an orator and as such should not address the national assembly sitting today (Thursday).
According to Aliyu who is a member of the All Progressives Congress and a close ally to the president, the service chiefs should attend the NASS invitation in lieu of Buhari.
“There are so many things that the President may divulge and people will say, ‘Why did he even go? He shouldn’t have gone.
“President Buhari is not an orator. There are orators, people who can talk and talk. People are different.
“If I were to advise Mr. President, I will tell Mr President not to go. He should probably allow the service chiefs to go and explain (things) because there are certain details that should probably be explained in camera.
“As a former minority leader in the House, I don’t think the President should appear, not at this time when things are so difficult (and) the country is going through challenges. Is the President going to appear there to tell the National Assembly the strategies being taken by the government?
“Is he going there for an interactive session? Not even the Speaker can assure the President or his party that Mr. President may not be embarrassed,” he said.
With ThisDay, Punch reports