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Limits to National Assembly’s Investigative powers under the constitution

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7 years ago

March 30, 2017

Limits to National Assembly's Investigative powers under the constitution

By Jiti Ogunye… Sadly since 1999, the National Assembly has continued to violate the principle of separation of powers embedded in the Constitution in the name of conducting investigations, though its committees, under Section 88 and 89 of the Constitution, and in pretence that it is committed to exposing or combating corruption in our public life. In the first one decade of return of Nigeria to civil rule and operation of the 1999 Constitution, the prevalence of such investigations, which were conducted without any constitutional justification, or which, at the end of the day, did not yield any administrative or executive dividend…

Since May 1999, when Nigeria returned to civil rule and the Constitution of the Federal Republic of Nigeria, 1999 became operative, the two Chambers of the National Assembly have usually conducted public hearings pursuant to [and we dare say oftentimes in violation of] the powers to do so under Sections 88 and 89 of the Constitution, and under the Legislative Houses [Powers and Privileges] Act, Cap L12 LFN, Volume 8, LFN, 2004.
Section 88 of the Constitution provides that:

“(1) 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 Gazette of the Government of the Federation to direct or cause to be directed 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 National Assembly, and (ii) disbursing or administering moneys appropriated or to be appropriated by the National Assembly; and that “(2) the powers conferred on the National Assembly under the provisions of this section are exercisable only 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 administration of funds appropriated by it.”

And Section 89 of the Constitution states that:

“(1) For the purposes of any investigation under section 88 of this Constitutional and subject to the provisions thereof, the Senate or the House of Representatives or a committee appointed in accordance with section 62 of this Constitution shall have power to – (a) procure all such evidence, written or oral, direct or circumstantial, as it may think necessary or desirable, and examine all persons as witnesses whose evidence may be material or relevant to the subject matter; (b) require such evidence to be given on oath; (c) summon any person in Nigeria to give evidence at any place or produce any document or other thing in his possession or under his control, and examine him as a witness and require him to produce any document or other thing in his possession or under his control, subject to all just exceptions; and (d) issue a warrant do so and does not excuse such failure, refusal or neglect to the satisfaction of the House or the committee in question, and order him to pay all costs which may have been occasioned in compelling his attendance or by reason of his failure, refusal or neglect to obey the summons, and also to impose such fine as may be to compel the attendance of any person who, after having been summoned to attend, fails, refuses or neglects to prescribed for any such failure, refusal or neglect; and any fine so imposed shall be recoverable in the same manner as a fine imposed by a court of law” “(2) A summons or warrant issued under this section may be served or executed by any member of the Nigeria Police Force or by any person authorised in that behalf by the President of the Senate or the Speaker of the House of Representatives, as the case may require.”

The Legislative Houses [Powers and Privileges] Act makes provisions in Section 4 – Section 13, respectively, for power of committee to order attendance of witnesses; issue and service of summons to attend committee hearings; power to issue warrant to compel attendance; examination of witness on oath; privilege of witnesses; answers in committee not to be admissible in proceedings; giving false evidence; refusal to answer questions or failure to attend committee hearing; fabricating evidence; and deeming proceedings judicial for certain purposes.

As extensive and as enormous as the powers of the National Assembly to conduct investigations and hearings appear to be, the true intendments, purpose, scope and limits of these powers have received very erudite judicial interpretations. Our courts have held that not only must the investigative powers be exercised for reasons for which they are made but also they must be exercised subject to other provisions of the Constitution, including the provisions creating the two other arms of government and enumerating their powers; and the special provisions guaranteeing the fundamental human rights of the citizens.

Thus, in the case of Senate of National Assembly v. Momoh (1983) 4 NCLR, 269 at 295 para.1- para. 8, the Court of Appeal [P. Nnaemeka Agu, JCA delivering the leading judgment and M. Nasir, PCA, Kazeem, JCA, Adenekan Ademola, JCA, and Uthman Muhammed JCA, concurring] held, while interpreting the provision of Section 82 of the 1979 Constitution [which is in ipsissima verba with the provision of Section 88 of the 1999 Constitution], as follows:

In the U.S. the initial controversy was as to whether or not Congress had power to investigate. Fortunately this is settled in our case in favour of both Houses of the National Assembly by S. 82 of the [1979] Constitution. Our problem here is bound to be whether or not particular investigations exceeded constitutional limitations contemplated by S. 82. The scope and limitations of this power are bound to be determined by the wordings of that section; and the primary problems are the facts that the power to investigate are naturally executive in content and the power of adjudication judicial: the power to investigate is strictly not germane to the legislative function of the Houses, although it may be in support of it, and that, in practice, when it involves an individual it may often come into conflict with the rights guaranteed by the Constitution itself. This tangled state of affairs calls for caution in determining the true perimeters of that power. It appears to me that section 82 is not designed to enable the legislature usurp the general investigative functions of the executive nor the adjudicative functions of the judiciary. The section enables either House to exercise the power only with respect to any matter or thing with respect to which it has powers to make laws and “the conduct of affairs of any person, authority, ministry, or government department charged or intended to be charged with the duty or responsibility for” – “executing or administering laws enacted by the National Assembly”,. and “disbursing and administering moneys appropriated or to be appropriated by the National Assembly”. In other words, the section does not constitute the House as a universal “Ombudsman” inviting and scrutinizing the conduct of every member of the public for purposes of exposing corruption, inefficiency or waste. In my view, their power under the section is further circumscribed and limited by sub-section (2) of section 82. They can only invite members of the public when they want to gather facts for the purpose of enabling them make law or amend existing laws in respect of any matter within their legislative competence or as witness in a properly constituted inquiry under section 82(1)(b).

Their power to expose corruption, inefficiency, or waste is also limited to government departments, authorities, and functionaries. I dare say that if this power should be free from abuse, the purpose of investigation, its composition and terms of reference should be clear from the proceedings of the House which authorises it and should be seen to be within the four corners of the constitutional power. It is not enough that the matter for investigation be within the legislative competence of the House. A proper and lawful investigation must have been constituted. In this case, the letter, Exh. A, does not say there is any investigation for the purposes of any legislation. Nor is the respondent a class of persons contemplated by either section 82(1)(b) or section 82(2)(b). It appears rather from the resolution, Exh. A, and the proceedings of the House, Exh. C, that the purpose is the decision of the house to show resentment for the respondent’s affront in daring to publish something about highly placed legislators rather than a plan for the investigation of the members for abuse. This should not be. The essence of section 82(2) is, in my view, that in point of fact the purpose should be seen in fact to be present and to be within the contemplation of the section. Section 82(2) is designed to eliminate abuse. Any invitation by the House to any person outside the purposes defined by section 82(2) of the constitution is invalid. No power exists under the section for general investigation nor for the aggrandizement of the House. So, the appellants were not entitled to have invited the respondent in the first instance.
Also in Mallam Nasir Ahmed El-Rufai v. The House of Representatives, National Assembly of the Federal Republic of Nigeria & Ors. (2003) 46 WRN 70, at 97 para.25-para. 40, the Court of Appeal critically and purposively interpreted the provisions of Section 88 of the 1999 Constitution. Oguntade, JCA (as he then was) who read the leading judgment of the Court held thus:

“The crucial question that follows is this: when the 1st Defendant sent the letter of 20/3/2002 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 has also determined that the Plaintiff’s conduct and utterances were contemptuous and a breach of its privileges. Having made that determination, the referral of the matter to its committee on ethics and privileges for investigation can only be in the further pursuit of the decision earlier reached.

We must emphasise that the Constitution of Nigeria, 1999 and the preceding Constitution of Nigeria, 1979 [now defunct] were made in line with the principle of separation of powers amongst the legislative, executive and judicial arms of government. While in practice, there is cooperation and interdependence amongst the three arms of government; and while, through the principle of checks and balances, an arm is permitted to check and balance the exercise of powers assigned, by the Constitution, to either or both of the other two arms, it is not contemplated nor is it acceptable for one of the three arms to take over, usurp, undertake or undermine the powers or functions of either or both of the two other arms of government. It is trite that the legislature makes the laws, the executive administers and enforces the laws, and the judiciary interprets the laws.

Sadly since 1999, the National Assembly has continued to violate the principle of separation of powers embedded in the Constitution in the name of conducting investigations, though its committees, under Section 88 and 89 of the Constitution, and in pretence that it is committed to exposing or combating corruption in our public life. In the first one decade of return of Nigeria to civil rule and operation of the 1999 Constitution, the prevalence of such investigations, which were conducted without any constitutional justification, or which, at the end of the day, did not yield any administrative or executive dividend, was excused on the ground of infancy of our legislative arm of government [in comparison with the two other arms of government which continued to operate during the era of military interregna] and Nigeria’s nascent democracy. However, after seventeen years of “democracy”, and five legislatures, counting from 1999, the indiscretion and recklessness of the National Assembly in resorting to committee investigations and hearings, as a tool for self-aggrandisement, extortion of gratification, waging of partisan warfare, grandstanding in legislature-executive schism, and image-burnishing populism persists. Noticeably, since 1999, neither of the two Houses of the National Assembly has investigated or held a public hearing on the very contentious subject of its salaries and allowances, said to be the highest in the world.

Perhaps, no instances better exemplify the misuse or abuse of the committee investigation and hearing powers of the National Assembly in recent times than the scheduled but abandoned committee hearing of the Senate Committees on the Judiciary; and Ethics, Privileges and Public Petitions on the Bills seeking to amend the Administration of Criminal Justice Act, 2015, and the Code of Conduct Bureau & Tribunal Act, 2004, Cap C15, LFN, 2004; the investigation or hearing of the House of Representatives Committee on Telecommunications being conducted into the issue of the “reduction” of the US $5.2 [N1.04 trillion] fine imposed by the Nigerian Communications Commission (NCC) on MTN in October 2015; and the invitation of Sunday Oliseh by the House of Representatives Committee on Sport to appear before it and have a “fair hearing”, following his resignation as head coach of the Super Eagles.

Apparently livid that the Distinguished Senate President, Dr. Bukola Saraki was being prosecuted by the Code of Conduct Bureau [through the office of the Attorney-General of the Federation {AGF}], and was being tried by the Code of Conduct Tribunal under the Administration of Criminal Justice Act, 2015, a law which has just clocked a year, having commenced on May 13th, 2015, in spite of the Senators’ wish that their President should not be tried for alleged infractions of the provisions of the Code of Conduct for Public Officers under Part 1 of the 5th Schedule to the Constitution, the Senate decided to amend the two laws, essentially to dilute same in order to frustrate the continued prosecution of the Senate President.

The ACJA, especially in Sections 221, 306 and 396, has abolished preliminary objections to a charge for reason of imperfections in the charge; has abolished applications for stay of proceedings, pending appeal; has provided that any objection raised against the validity of a charge be considered along with the substantive issues and that ruling on the objection be delivered with the final judgment, to obviate delay, and that trial of a criminal defendant be conducted day-to-day, until conclusion of trial; has limited adjournments to only five in all, where day-to-day trial is impracticable; and further has limited adjournments – pan to seven day intervals where it is impracticable to conclude criminal proceedings after parties have exhausted their five adjournments. These beautiful provisions which, at the federal level, have arrested dilatory, elongated and protracted prosecution and criminal adjudication were the repeal targets of the Senate.

Within 48 hours of initiating the amendments of the two legislations, the Bills, at a frenetic speed, passed first and second readings, and were referred to the Senate Committee on the Judiciary. On Monday April 18, 2016, the Senate Committee Ethics, Privileges and Public Petitions summoned Danladi Umar, the Chairman of the CCT, that is presiding over the trial of the Senate President to appear before it, in respect of an alleged investigation of a petition against him. On April 20th, 2016, the Senate, however, capitulated to the wishes of angry Nigerians by abandoning the frenzied attempt to amend the two laws and put paid to the harassments of the CCT Chairman, through its committee investigation subterfuge.

On its part, the House Committee on Telecommunication is currently investigating the circumstances surrounding the “reduction” of the US $5.2 [N1.04 trillion ] fine imposed by the NCC on MTN in October 2015.

The NCC had sanctioned MTN, for failing to disconnect 5.1 million improperly registered lines from its SIM Network before the prescribed deadline, in compliance with its regulatory directive to telecommunication operators in Nigeria. The penalty was based on N200,000 fine imposed for every unregistered SIM card in use on any telecommunication operator’s network. Subsequently, the NCC reduced the fine by 25 percent to N780 billion ($3.9 billion), but rather than pay the reduced penalty, MTN Nigeria chose to file a suit at the Federal High Court, Lagos to challenge the NCC’s action. And seek orders to quash the fine, contending that there was no legal, statutory and constitutional grounds for NCC to impose such a fine.

…long after the evaporation of the histrionics of a crowded, shadow-chasing legislature and its resolve to substitute its own affirmation of guilt for an establishment of prima facie culpability by an investigative agency, and the criminal prosecution that ought to follow, a court of law that is presided over by just one judge or a few judges may strike down that self-opinionated affirmation of guilt, rendering the whole exercise a waste of legislative time and money.

After being given time to reach an amicable out-of-court settlement over the matter, by the Court, MTN withdrew its court case, paid US$250 Million [N50 billion] to the Federal Government, as a first “good faith” payment, and committed itself to fully negotiate and pay a total fine, as might be reduced and agreed to. The negotiations and discussions leading to the payment were conducted under the auspices of the office of AGF, the legal adviser to the Government of Nigeria.

The House of Representatives was angry at the negotiation and reduction of the fine, and queried the roles of the AGF in the matter, which it claimed was between the Government of Nigeria and a business [MTN], and not a matter between the Nigerian Government and another foreign government [Republic of South Africa]. The position of the House and its said Committee are that the downward review of the fine was unconstitutional, and that the said reduction was tantamount to an amendment of the NCC (Telephone Subscribers Registration) Regulation 2011 which stipulates a fine of N200,000 for each unregistered SIM card. In the course of the debate at the plenary in the House, it was argued that MTN ought to have been fined, respectively, under Sections 19 and 20 of the NCC Act, with a cumulative penalty of N3.12 trillion, and not N1.04 trillion, which was alleged to be a gross violation of the combined reading of the NCC Act. The House Committee was then mandated to investigate the extent to which MTN’s non-compliance with the law allegedly led to the death of over ten thousand Nigerians, who were killed by insurgents in the North-East, and whether MTN could be liable for criminal proceedings under the law.

The House has insisted that MTN’s CEO, Ferdinand Moolman, must heed the summons issued and served on him to appear before the House Telecommunications Committee. Moolman had failed to appear before the Committee in March 2016, and in reaction to the Committee’s summons, had referred the Committee to “the appropriate government agencies, specifically the NCC, Offices of the Ministers of Communications and Justice as well as the Central Bank of Nigeria (CBN) which agencies are in a position to furnish your committee with relevant information on this issue.” The House considered that communication to be an affront.

In case there is a belief that the House only exercises its committee investigation or hearing powers when government revenue is involved, how does one react to the intervention of the House Committee on Sports in the “fight” between Sunday Oliseh and the Nigerian Football Federation? In March, 2016, following the resignation of Sunday Oliseh as coach of the Super Eagles on February 25, 2016, Abdulrahman Abubakar, a member of the House of Representatives’ Committee on Sport, was reported to have said Oliseh had been given a date to appear before the House to answer some questions, because he deserved “a fair hearing”!

It is our firm view that in the first two of the three examples which we have provided above, the House of Representatives and the Senate and their respective Committees ought not to have exercised their powers of investigation and hearing when they did. With respect to the botched plot to amend the CCB/CCT Act and ACJA, it is submitted that a law cannot be lawfully amended or altered to aid the criminal defence of an individual who is undergoing criminal prosecution. With respect to the MTN fine issue, it is submitted that the Legislature should not, relying on its own legislative wisdom, take over or disrupt the lawful discharge of the statutory duties of the executive arm of government, while that work is still in progress. If the NCC/MTN/FGN negotiation and penalty payment or settlement had not been impeded by a hasty legislative intrusion, same, perhaps, by now could have been concluded; after which the National Assembly may rightly exercise its oversight powers or “power of legislative review”, more or less like a court’s power of judicial review of legislative or executive actions. If there were anomalies in the fine reduction process, these could still be corrected, eventually, to ensure that our laws are held inviolable and that Nigeria is not short-changed.

If the fear of the House was that there might have been some corrupt practices or abuse of office, the anti-corruption agencies [CCB/CCT, EFCC, ICPC, SFU, The Police] are there to carry out investigations, the National Assembly not being competent to investigate allegations of corrupt practices and other criminal offences, nor try same. These are the duties of the law enforcement agencies and the Courts.
In El Rufai V Senate of the National Assembly, 2016, 1 NWLR, Pt 1494, 507, the Court of Appeal had to remit the Appellant’s case, wherein he was contending that his fundamental right to fair hearing had been violated by the Senate, to the Chief Judge of the Federal High Court, Abuja for reassignment and expeditious determination. In that case, the Appellant, [now Governor of Kaduna State] was the Minister of Abuja, FCT between June 2003 and May 2007. Following receipts of petitions by members of the public against some of his conducts while in office, the Senate of the Federal Republic of Nigeria resolved in March 2008 to conduct an investigative public hearing on the activities of the FCT between May 29, 1999 to May 29, 2007. A Senate Committee was inaugurated to conduct the hearing. The Appellant appeared before the Committee and made oral and written presentations. The Joint Committee submitted its report in June 2008, and recommended to the Senate that the aappellant should account for all funds collected by the ad-hoc bodies he raised during his tenure; that the document on the house he obtained for himself where he signed as lessor and lessee be revoked; and that the appellant was not a fit and proper person to hold office in a democratic set-up. Of course, the Appellant challenged the report in Court, and although the Federal High Court dismissed his Suit on technical ground, same, was by this judgment restored to allow for a determination of same on merit.

The lesson here is that, long after the evaporation of the histrionics of a crowded, shadow-chasing legislature and its resolve to substitute its own affirmation of guilt for an establishment of prima facie culpability by an investigative agency, and the criminal prosecution that ought to follow, a court of law that is presided over by just one judge or a few judges may strike down that self-opinionated affirmation of guilt, rendering the whole exercise a waste of legislative time and money.

May be our National Assembly needs to take a cue from the U.S Congress, which, although, is investigating Hilary Clinton on Benghazi, has not taken over Hilary Clinton’s email investigation from the FBI.

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