By Victor Anayochukwu Jonah Esq.

INTRODUCTION:

The adoption of bicameral legislation and its incorporation into the 1999 Constitution of Nigeria by its framers have over the years proved to be a Sword of Damocles on the neck of a sinking country. Recently, both Chambers of the National Assembly have been enmeshed in series of dramatic imbroglio with the executive arm of government.

The 9th Assembly which hitherto, seemed ensconced in its entanglement with the executive is suddenly at daggers drawn with its erstwhile soulmate. In the evolving skirmish, Nigerians have been left curious as to the quantum of powers vested in the National Assembly to checkmate the excesses of the Executive arm of government. Whilst the face-off lingers, there have been disturbing revelations from both arms of government unraveled by virtue of mud-slinging in perceived attempts to outwit each other. The investigative oversight function of the National Assembly seems to have become an instrument of political extortion and sordid bullfighting. Sadly, the national interests appear to have been relegated to the background even as Nigerians are left agape – confined as mere spectators of the covert rots emerging from the institutions that incubate our commonwealth. This paper undertakes a voyage to unfold the constitutional underpinning of both arms of government vis-à-vis the investigative powers of the National Assembly.

BACKGROUND FACTS

The Nigeria Constitution recognizes the investigative powers of the National Assembly. In reliance on the said powers, both chambers of the National Assembly have at different times, since the return to civil rule, invited or summoned persons in charge of Ministries, Departments and Agencies to appear before them and make clarification as they deem fit. Recently, on 30th June, 2020 the Minister of State for Labour, Employment and Productivity, Festus Keyamo (SAN) appeared before the National Assembly’s Joint Committee on Labour to defend the 52 Billion Naira budgeted for the recruitment of 774,000 Nigerians. This was after the budget was passed into law by the National Assembly and assented to by President Muhammadu Buhari. Accordingly to the Committee, this became necessary when it seemed that the Director-General of the National Directorate for Employment, Mr. Nasiru Ladan was unable to offer satisfactory explanations as to how the said sum would be distributed to targeted Nigerians across the 774 Local Government Areas. In the course of the public interrogation with the Minister, the Committee suddenly opted for a closed session to resolve the impasse. The Minister objected vehemently to the proposed private meeting and insisted that he be allowed to defend the programme before members of the public and press. It was at this juncture that the investigative hearing nosedived into altercations and flaring of tempers from both ends. Amidst the rancorous atmosphere, the Minister took leave of the Committee. The Minister later alleged that the probe is diversionary as members of the National Assembly are merely exhibiting desperation because he refused to comply with their self-serving directives on how the huge amount should be distributed.

In a similar occasion, on 16th July, 2020 the Acting Managing Director of Niger-Delta Development Commission (NDDC), Prof. Kemebradikum Pondei audaciously staged a walk-out from a Committee of the House of Representative investigating alleged malfeasance in NDDC. He boldly stated that it is against the spirit of fair hearing for the Chairman of the Committee, Mr. Olubunmi Tunji-Ojo to preside over the Committee considering that he is an interested party in the matter. Having stood his ground; the Chairman of the Committee subsequently recused himself to enable the Committee sittings proceed unhindered. On the 20th of July, 2020 the Investigative Hearing continued with a new Chairman. But the centre could no longer hold as Prof. Pondei suddenly collapsed in the heat of inquisitorial cross-fire by members of the Committee. The drama assumed a new dimension when the Minister for NDDC, Chief Godswill Akpabio, mounted the saddle. In a desperate bid to defend the activities of his ministry, Chief Akpabio veered off the issues in contention and unsealed a can of worm by implying that the members of the National Assembly (which he was a member before being appointed Minister in August, 2019) have been breaching their fiduciary duties to the Nigerian people by arrogating major contracts from the NDDC to themselves and their cronies whilst disguised as conducting their oversight functions as enshrined in the Constitution. Meanwhile on 21st July, 2020, the Senate passed a resolution calling for resignation or sack of the Service Chiefs in view of the deteriorating security situation across the country, especially in the North-East and North-West.

Recently, the Minister of Transportation, Mr. Chibuike Rotimi Amaechi was in the eyes of the storm following public disclosure of a clause that purportedly waived Nigeria’s sovereignty to China in the event of breach of a loan agreement between both countries. The loan agreement was approved by the National Assembly. In a public hearing on 17th August, 2020 before the House of Representatives Committee on Loans, Treaties and Protocols, the Minister exchanged heated arguments with the Chairman of the Committee, Mr. Ossai Nicholas Ossai. The Committee Chairman grilled the Minister for allegedly obtaining 33 Million Dollars loans without clear cut financial arrangements and compliance with local content laws. Mr. Amaechi insisted that the loan in question obtained from China was to the tune of 1.6 Million Dollars for the construction of Lagos –Ibadan railway project. The Minister alleged that the probe is not conducted to expose corruption but to score partisan goal. The Committee Chairman is a member of the opposition party, PDP. There are also indications that the Minister has been directed to suspend further processing of the 500 Million loan with China amongst others.

This article intends to narrow itself within the precinct of the investigative powers bestowed on the National Assembly. It examines the limits and delimits of the investigative power with the view to unraveling whether there have been compliance by the various actors who often find refuge in that constitutional provision. The degree to which the Executive must bow to the dictates of the National Assembly is also considered. This paper did not shy away from suggesting the ideal position of the law vis-à-vis the condemnable confrontations as aforesaid.

THE NATIONAL ASSEMBLY AND ITS INVESTIGATIVE POWERS

The Nigeria Presidential system of government is a carbon copy of the system practiced in United States of America (USA). Therefore, it is apt to have recourse to past parliamentary practices of the USA and make necessary deductions therefrom. The Senate Watergate Committee Hearing of 1973 was a watershed in the annals of the US parliament. The investigation of the Watergate scandal which enjoyed wide and daily publicity linked the then newly elected President to the monumental criminality and improprieties regarding the 1972 Presidential elections. Despite strong resistance by the White House, the Committee left no stone unturned. It was only at the heat of the subsequent impeachment proceedings that President Richard Nixon reluctantly tendered his resignation. The Watergate Committee Hearing symbolizes a global hallmark on the efficacy of the investigative powers of Parliament. It implies that if members of the National Assembly could exercise their investigative powers within the ambit of law and for altruistic purposes, it will be a catalyst for good governance.

One of the theorists of the concept of separation of powers, John Locke, expressed his fear on the preponderance of one arm over the other in his book, Second Treatises of Government. He theorized that in an orderly (democratic) society the lawmakers, like the people, ought to subject themselves to equal force of the law. Hear him:

“…..it may be too great a temptation to human frailty, apt to grasp at power, for the same persons, who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making, and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the community, contrary to the end of society and government: therefore in well ordered commonwealths, where the good of the whole is so considered, as it ought, the legislative power is put into the hands of divers persons, who duly assembled, have by themselves, or jointly with others, a power to make laws, which when they have done, being separated again, they are themselves subject to the laws they have made; which is a new and near tie upon them, to take care, that they make them for the public good”.

The foregoing statement is unarguably true. The legislature ought not to be allowed to encroach into the core of executive functions. Most advanced countries of the world, like USA, took heed to John Locke’s admonitions and fashioned their laws in ways and manner that ensure equitable distribution of powers to eliminate dominance by one arm of government and despotism.

Flowing from the above, the concept of separation of powers and its concomitance, check and balances, are as old as government itself. The 1999 Constitution of the Federal Republic of Nigeria, (hereinafter referred to simply as “1999 CFRN”) makes ample provisions for these concepts. Section 4 CFRN vest legislative powers on the National Assembly which comprises of the Senate and the House of Representatives. Sections 5 and 6 CFRN establish the executive and the judiciary respectively. The legislature is a powerful and important arm of government. It is the institution charged with the mandate to make good laws to strengthen the social contract between the Nigerian people (the governed) and government. So powerful is the Legislature that it is imbued with almost intrusive powers to checkmate other arms of government. Apart from its powers to appropriate funds to other arms of government, the legislature can upturn the legal basis upon which the apex Court arrived at a final decision in a matter – for subsequent adjudications. This is in so far as it does not oust the Court’s jurisdiction. It can also remove a President and/or the Vice-President. In fact, in Nigeria the legislature is as powerful as it wants to be.

In Nigeria, the power of the National Assembly to make laws is not at large. It is predicated on laws that are for “the peace, order and good government of the federation or any part thereof”. In the same token, the investigative power of the National Assembly is expressly subjected and circumscribed by the provisions of the Constitution itself. In Unongo v. Aku & Ors. (1983) LPELR -3422 (SC), the Supreme Court held that the National Assembly is not a sovereign Parliament. Its legislative powers are limited by express provisions of the Constitution. It means that related and coterminous provisions of the Constitution on the powers of the National Assemble must be read together with a section under review to properly appreciate its intendment. Being an organic instrument, the Constitution is interpreted differently compared to Statutes and other written instruments. In PDP v. Sen. Daniel I. Saror & Ors. CA/MK/EPT/03/2012 delivered on 16th February, 2012, the Court of Appeal held:

The task of construction of a Constitution is crucially different from that of construing a Statute. Whilst a Statute generally defines present rights and obligations, a Constitution provides a continuing frame work for the legitimate exercise of power and must be capable of growth over time to meet new social and political realities unimagined by the framers. This point must be in the minds of the interpreters of the Constitution.

The constitution is construed in a manner that accentuates its objective and preserves its purpose. Again, the wordings of the Constitution respond to social dynamics and must not be self-defeating. In Local Government Service Commission Ekiti State v. Anor. V. Mr. M.K. Bamisaye (2013) LPELR-20407 (CA) it was held that a court of law must always ensure that whatever interpretation it gives to the provisions of the Constitution shall not yield or produce fruit that is anti-constitution.

Having emphasized the extent of powers of the legislature in a democratic state like Nigeria, it is important to re-emphasize that the powers are not limitless. Each arm of government exercises sovereign powers within its constitutional sphere of influence. The powers of each arm must be interpreted in such a way that it does not usurp the primary/fundamental objectives of the other arms. It is the intention of the framers of Nigerian Constitution that each arm of government exercises its powers without intrusion into the exclusive preserves of the others. And where the National Assembly must interfere with the other arms of government it should be to accentuate its basic function of law making. In the case of Tony Momoh v The Senate (1981) 1 NCLR 21, the Supreme Court held thus:

Our Constitution provides for separation of power between the three arms of government i.e. the legislature, the executive and the judiciary. Each is no doubt supreme in the area of authority as conferred on by the Constitution but in so far as it confines itself to and act within the power conferred on it. If it exceeds such powers or acts in contravention of it or in conflict with the provision of the Constitution, it would be the duty of the judiciary to put it in check at the instance of any aggrieved. And I have no doubt in my mind that no Court would abdicate its authority in this regard. Each arm of government is sworn to protect, preserve and defend the Constitution and the Court would in my view be failing in it duty if it hold itself helpless and unable to offer redress to an aggrieved party whose right is infringed or threatened.

Again, in Mallam Nasir Ahmed El-Rufai v. The House of Representatives, National Assembly of the Federal Republic of Nigeria & Ors (2003) 46 WRN 70, the Court of Appeal quoted extensively the authority in Ezeoke v. Makarfi (1982) 3 NCLR 663 @ 669 thus:

We operate a system of government which consists of three constitutional departments, namely, the legislature, the executive and the judiciary. Each of these departments derives its powers and authority from the Constitution, these powers subject to other provisions of the Constitution are spelt out in section 4 in respect of legislative powers, in section 5 in respect of executive powers and in section 6 in respect of judicial powers. It is one of the cardinal principles of the Constitution we operate in this country that each department is sovereign within its sphere of authority and can exercise its powers without let or hindrance from any other department or any other authority or person as long as it operates within the Constitution and the law. It is also a cardinal principle of the Constitution that it operates on a system of check and balances. Each department has, in certain instances, been vested with powers by the Constitution to confirm or check the exercise of powers of the other department. It is also the duty of each department to support the other department in carrying out its responsibility under the Constitution.

The elaborate preamble canvassed above is vital to prepare and fertilize the mind to dissect the actual constitutional basis upon which the National Assembly embarks on investigations. Indeed the Constitution bestows huge powers on the Nigeria parliament. Specifically, Section 88 CFRN provides:

Subject to the provisions of this Constitution, each House of the National Assembly shall have power by resolution published in its journal or in the official Gazzette of the Government of the Federation to direct or cause to be directed an investigation into –

(a) any matter or thing with respect to which it has power to make laws; and

(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; and

(ii) disbursing or administering monies appropriated or to be appropriated by the National Assembly.

The powers conferred on the National Assembly under the provisions of this section are exercisable for the purpose of enabling it to –

(a) make laws with respect to any matter within its legislative competence and 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 administering of funds appropriated by it. (Emphasis is mine)

The foregoing provision is clear and unambiguous. It must be given literal interpretation. Section 88 CFRN is married and interwoven with Section 89 CFRN and must be read contemporaneously. Section 89 CFRN bothers on the modalities for procurement of evidence by the National Assembly during its investigations. Section 89 CFRN can only arise after Section 88 CFRN has been properly invoked. The word “subject to the provisions of this constitution” connotes that Section 88 CFRN must be read side by side with other related provisions of the Constitution. It also means that where there is an independent and special provision on similar function, Section 88 CFRN will be construed as subservient to that other section. For instance, it is not the intendment of Section 88 CFRN that the National Assembly should compete with the investigative powers of the Nigerian Police (or any other similar body established by the National Assembly like the EFCC, ICPC etc. ) which is under the directive of the President as provided in Sections 214 & 215 CFRN. Again, the activities in Sections 88 & 89 CFRN must be conducted in manners that it renders obeisance to the fundamental rights of Nigerians as enshrined in Chapter IV of the 1999 Constitution. Furthermore, before the investigative powers can be invoked, the conjunctive provisions of Subsections 1(a) & (b) (i & ii) must be complied with in toto. In other words, it is the condition precedent for any investigation. The investigative body of the National Assembly must only investigate matters under their legislative competence as captured in Sections 4 (1, 2, 3, & 4) CFRN. If the investigation is not one that seeks to administer or execute laws that the National Assembly made including disbursement of funds, then they cannot be legally empanelled to investigate. In Chevron Nigeria Limited v. Imo State House of Assembly & Ors. (2016) LPELR -41563 (CA), the Court of Appeal re-echoed the earlier decision in Innocent Adikwu v. Federal House of Representatives (1982) 3 NCLR 394 at 416 thus:

The substance of the resolution setting up a Legislative investigative body under Sections 82, 83, 120 and 121 (now Sections 88 and 89 as well as 128 and 129 of the 1999 Constitution as amended) must be construed strictly in order to determine the scope of the powers of such a body and whether or not it has been constituted for a permissible purpose……….It is however, necessary to stress that the powers so conferred are in the language of those provisions, exercisable only for the purpose of enabling each legislative body or its committee to make laws with respect to any matter within its Legislative competence and to enable it correct any defects in existing laws.

Where the National Assemble passes through the first hurdle as expatiated above, it can be said to be properly constituted. It is important to stress that Section 89 CFRN will remain dormant and lifeless until the investigative powers in Section 88 CFRN is properly invoked. This is premised on the trite principle that you cannot put something on nothing and expect it to stand. The other fundamental requirement is the end purpose of the investigation. The only purpose for which the National Assembly can invoke Section 88 CFRN is to ascertain the efficacy of the law they made and guide them in future law making as well as exposing rot as conjunctively provided in subsection 2 (a & b). Any other objective outside the aforesaid is ultra vires its powers. This means that the National Assembly lacks the power to direct the executive to act in any manner howsoever in the course of their investigation. Even though they made the law or deemed to have made the law. To do otherwise will be tantamount to usurping executive functions as headed by the President under Section 130 CFRN. In the same vein, the National Assembly lacks the powers to delve and investigate activities that bother on the private lives of persons and entities – that is eating into the exclusive preserve of the judiciary. In Mallam Nasir Ahmed El-Rufai v. The House of Representatives, National Assembly of the Federal Republic of Nigeria & Ors (supra), the court held that:

The crucial question that follows is this: when the 1st defendant sent the letter of 20/3/02 to the plaintiff to appear before its Ethics and Privileges Committee, was it engaged in the making of a law within its legislative competence or to expose corruption and inefficiency in a public department? Clearly, the answer is in the negative. 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. 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 defendant had also determined that plaintiff’s conduct and utterances were contemptuous and a breach of its privileges. Having made the determination, the referral of the matter to its committee on Ethics and Privileges for investigation could only be in the further pursuit of the decision earlier reached.

It can be clearly deduced from above that the investigative powers of the National Assembly must be carried out in pursuance of its primary duty of law making. Even where it exposes “corruption, inefficiency or waste” the outcome ought to serve as a compass for the National Assembly to make laws or amend existing ones to cure the mischief discovered in the course of the said investigation. It is not the constitutional duty of the National Assembly or any Committee established pursuant to Section 62 CFRN to blackmail and extort government ministries, departments and agencies. Moreso, Section 89 CFRN is not intended for the National Assembly to constitute itself into a court capable of granting relief and damages. The National Assembly lacks power to exercise judicial functions.

NIGERIA HEAD OF STATE AS A DEMI-GOD

A thorough perusal of the 1999 Constitution not only reveals avalanche concentration of powers on the central government, it also brings to the fore the enormity of powers bequeathed on the office of the President alone. Unlike the legislature whose decision is by majority resolution having attained the required quorum, the ubiquitous executive powers are controlled by a single mortal. The possibility of the President getting intoxicated by the humongous and almost unrestrained powers is almost guaranteed. Perhaps, an independently vibrant National Assembly and an uncompromised judiciary may tame a Nigeria President.

Section 130 CFRN provides that the President shall be the Head of State and the Chief Executive of the Federation. By the combined provisions of Sections 215(1 & 2) and 216 CFRN the President is in charge of the Nigerian Police Force. The President is also the Commander-in-Chief of the Armed Forces pursuant to Section 218 CFRN. By Section 148 CFRN the Vice-President and Minister act as alter ego or agents of the President. The President is immune from civil and criminal actions whilst in office. Even the Statutory bodies conferred with independence have some degree of interference allowed by the President- such as the power to hire and fire. Little wonder the executive shoos and emasculates the other arms of government.

In addendum, by virtue of Section 9 of Debt Management Office (Establishment) Act, Cap. D12 LFN, 2004 (DMO ACT), the President is the sole appointer of the Director General, Debt Management Office. Section 21 DMO Act however, provides that all external loans (such as the Chinese loans) must obtain the prior approval of the National Assembly. The President also appoints the head of the Fiscal Responsibility Commission on the strength of Section 5(3) Fiscal Responsibility Act, Cap. F40 LFN, 2004 (FRA). Section 41 (1)(a) FRA mandates the governments at various levels to borrow for capital expenditure and human development only. The money sought to be borrowed must be of low interest rate and long amortization level.

If the National Assembly had properly scrutinized the Chinese loan (and refused the overbearing influence from the office of the President) before approval as required by laws the current hullabaloo could have been avoided. Furthermore, the National Directorate of Employment is like a servant of the Minister of Labour. The National Directorate for Employment Act Capt. N28, LFN, 2004 (NDE Act) castrates the D.G., NDE and rendered him subservient to the Minister; and by extension the President.

Thus, it is crystal clear that our laws are skewed in manners that only a competent and innate benevolent President can propel it to progress and prosperity. An incompetent and callous President will surely set the country on a downward slide. It will be proper to conclude that the growth and development of Nigeria depends on the competence of the President. No matter how good the laws may be and how efficient the judiciary interpret the laws, an incompetent and malevolent Nigerian President will render them nugatory. Conversely, a competent and benevolent Nigerian President can harness the powers and steer the country to the path of growth. To put more succinctly, the investigative powers of the National Assemble can only be fruitful if the President and his agents wielding various executive functions are committed to adhere to the rule of law in words and deeds. The only alternative is the active display of discontent and disaffection by the generality of the people. A docile citizenry is a harbinger for a doomed country.

CONCLUSION AND COMMENTS

The Constitution alluded to the fact that sovereignty belongs to the Nigerian people (See Section 14 (2) (a) CFRN). Governments exist to better the lots of the people and where the ship of state steers towards a wrong course; the people reserve the right to withdraw the legitimacy assigned to it at anytime. As exhaustively elaborated, the National Assembly and the executive must confine themselves within their constitutional roles. They must recalibrate their motive and priorities for the object of security, peace, order and general good of Nigeria and Nigerian people. A government that has outlived these lofty goals must be ousted whether de-jure or de-facto. Finally, I have hereunder itemized my opinion vis-à-vis the factual background highlighted earlier as follows:

The Constitution empowers the National Assembly to carry out investigations on subject matters within their legislative powers to serve as a guide in their law making objectives and expose corruptions and inefficiency where necessary.
For the investigative powers of the National Assembly to yield meaningful fruits, the head of the executive must subject himself and his appointees to the rule of law as pledged during swearing-in.
The malfeasance, failure and inefficiency of all cadre of the federal executive, including the NDDC, are the responsibility of the President. As the head of the executive, the buck stops at his desk. The office of the President cannot be seen to abdicate from its responsibilities.
The power of the National Assembly to investigate for purpose of law making and to expose corruption, inefficiency or waste should not be a ploy to micromanage and issue directives to anybody or entity within the executive.
The National Assembly can checkmate the executive during the budgeting process before passing the Annual Appropriation Bill into law. They can amend any law for public good. In clear cases of “gross misconduct”, the National Assembly can remove the President.
It is outside the purview of powers of the National Assembly to direct the Executive on how to distribute the 774,000 jobs. The National Assembly failed to take advantage of the budgeting process to correct abnormalities therein. However, they can investigate improprieties in the process.
The National Assembly must accept blame for their failure to properly scrutinize all external loans obtained by the executive before granting approvals. However, the current investigation is in order as far as they would help expose corruption, waste, inefficiency etc. and serve as a guide for future approvals and amendments.
Finally, a docile and numb citizenry is a recipe for a failed country. Where there is a total collapse of governance, the only rescue agents are the vigilant citizens. I leave Nigerians to regurgitate pensively and conclude if indeed the country has been driven to the precipice and resolve whether it is time to for Nigerians to exude righteous indignation over the state of affair in government and act for posterity.

JONAH, VICTOR ANAYOCHUKWU, LEGAL PRACTITIONER FROM LAGOS TEL: +234 7030878896, EMAIL: [email protected]