Nigerian Senators refused to screen President Muhammadu Buhari’s nominees for allowing EFCC Acting Chairman, Ibrahim Magu, to remain in office after they refused to confirm him twice.

They resolved to invite Presidential Advisory Committee Against Corruption (PACAC) Chairman Prof Itse Sagay (SAN) to appear before the Ethics, Privileges and Public Petitions Committee, to explain why he described them as “childish and irresponsible” for asking the President Buhari to sack Magu within two weeks.

Can the Senate suspend a member 6 months? Does the Senate have powers to summon individual? Will it not amount to their sitting as a judge in their own case?

What the Constitution says:

With regards to Senate’s powers to summon, Sections 88 and 89 of the 1999 Constitution say:

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.

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.

(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 to compel the attendance of any person who, after having been summoned to attend, fails, refuses or neglects to 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 prescribed for any such failure, refused or neglect; and any fine so imposed shall be recoverable in the same manner as a fine imposed by a court of law.

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.

Can the Senate summon Sagay?
A constitutional lawyer, Sebastian Hon (SAN), said while Sagay’s comments were “not salutary”, they do not merit an invitation to appear before the Upper House.

He recalled that a similar situation had played out in the 1980s, in the case of Tony Momoh v Senate of the National Assembly.

Momoh published in the Daily Times of April 2, 1980 an article the Senate of the Second Republic found aggressive.

A Senate committee then invited Momoh to appear before it to ‘clarify’ those press comments. Momoh challenged the invitation in court.

The Court of Appeal held that Momoh’s action was premature – since the Senate had not taken steps to compel his attendance, but it laid down general principles regarding exercise of oversight functions by the National Assembly.

According to Hon, the principles are that the powers of the National Assembly to investigate are not general but limited to the execution or administration of laws enacted by the lawmakers and the disbursement and administration of moneys appropriated by it.

“In other words, the constitutional provisions granting oversight functions do not constitute the National Assembly as a universal ‘Ombudsman’ with power to invite and scrutinise the conduct of every member of the public,” he said.

He explained that the National Assembly’s powers to summon are further circumscribed and limited by Subsection (2) of the equivalent of Section 88 of the 1999 Constitution – in that the National Assembly can only invite members of the public when it wants to gather facts for the purpose of enabling it to make laws or amend existing laws.

Hon said the Court of Appeal restated the principles in the case of El Rufai vs. House of Representatives ((2003) FWLR (Pt. 173) 162), where Kaduna State Governor Nasir el-Rufai, as Director-General of the Bureau for Public Enterprises, upon being investigated by an ad-hoc committee of the House of Representatives, wrote and circulated certain offensive materials against the House.

“Upon being invited for ‘clarification’ of those comments, he rushed to court; and the Court of Appeal, as stated above, restated the principles in Momoh’s case.

“Indeed, the Nigerian Supreme Court also, in the case of Attorney-General of Abia State vs. Attorney-General of the Federation (2006) All FWLR (Pt. 338) 604 at 674, brevi manu (handing over something directly to someone), circumscribed the oversight functions of the National Assembly in the following words: “Oversight functions can only be exercised within the law-making powers of the National Assembly. The functions are nzot at large and must be exercised within the provisions of the Constitution.

“This line of judicial thinking in Nigeria agrees with the position of the US Supreme Court and the Court of Appeals, in a long line of cases – Watkins vs. United States, 354 U.S. 178, 187 (1957); Townsend vs. United States, 95F 2d 352, 361 (D.C. Cir. 1938); McGrain vs. Dougherty, 716 Ed. 590, etc.

“In conclusion, while I agree that Prof. Sagay’s comments against the Distinguished Senators were inappropriate, I make bold to state that the Senate lacks the constitutional competence to summon him to appear before it merely on account of those comments,” Hon said.

The SAN, who is the author of the book, S.T. Hon’s Law of Evidence, urged the legislature to be cautious in extending summons to persons under its constitutional oversight functions.

“The Legislature qua the National Assembly should as much as possible conduct itself in such a way as not to be seen to be quarrelsome or petty,” he said.

Activist-lawyer Jiti Ogunye said the combined reading of sections 88 and 89 of the Constitution, the relevant provisions of the Legislative Houses Powers and Privileges Act, as well as the Rules of the Senate, does not show that the Senate can exercise that power.

He said the Senate was not interested in conducting any hearing in respect of its mandate to make a law or correct any defect in an extant law with a view to amending it, nor is the Senate intent on conducting a hearing or investigation to “expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence or in the disbursement or administration of funds appropriated by it”.

“The malicious desire of the Senate was to harass, intimidate and embarrass Prof Sagay for exercising his right to freedom of speech, his inalienable constitutional right.

“But, legislative power is not granted by the Constitution to enable lawmakers, who ought not to be lawbreakers, to bully opponents who express public opinions and views that the legislative body finds unpalatable,” Ogunye said.

According to the lawyer, the Senate has no power to legislate on defamation of character, a tort or civil wrong under the common law.

To him, since it was its position that Sagay’s statement brought it and its members into disrepute, it ought to file action for libel in a court of law.

Ogunye said PACAC cannot be subject to Senate’s investigation because there is no law that has been made by the National Assembly establishing it, nor has the lawmakers appropriated any money to the committee which Sagay heads as to bring Sagay within the scope of those the Senate can investigative.

“Prof Sagay is not a public servant, as defined by the provisions of Section 318, the Interpretation Section of the Constitution,” Ogunye said.

The lawyer said the legislature does not have the power to summon any person like the courts because there is no infraction known as “contempt of the Senate “ like contempt of court.

“The Senate cannot be the accuser, the complainant, the prosecutor, the witnesses and the judge in its own cause,” Ogunye added.

International criminal lawyer and former International Criminal Court (ICC) Prosecutor, Charles Adeogun-Phillips, is of the view that the Senate cannot summon Sagay.

He said: “Pursuant to sections 88 and 89 of the Constitution, the Senate and the National Assembly as a whole, have oversight functions over government institutions that are the beneficiaries of appropriations approved by it. To that end, they are able to summon public officers who in their official capacity are subject to such appropriations.

“Sections 88 and 89 of the Constitution empower the National Assembly to conduct investigations into any matters within its legislative competence, expose corruption, inefficiency or waste. To that end, they are empowered to summon any person in Nigeria to appear before them.

“However, what the Senate has summoned Prof Sagey to appear before them for is not in my view, within the ambit of their powers under sections 88/89 of the Constitution. In a democracy, you cannot summon a person for expressing his personal opinion on a matter of national interest.

“Prof Sagey is entitled to express his personal opinion as a Citizen of Nigeria. The freedom of expression which is guaranteed under Section 39 of the Constitution includes the freedom of all Nigerians citizen to hold an opinion. I cannot see any reason why this provision should not afford Prof Sagey protection under the law.”