The
Senate of the Federal Republic of Nigeria summoned the Inspector General of
Police (IGP) on three different occasions, namely: April 25, 2018; May 2, 2018
and May 9, 2018. The IGP failed to honour the summons.
The reasons for the summons as indicated by the Senate are twofold:
the first reason was for the Police Chief to address it, and answer questions
on the "undignified" manner the Police treated their colleague
Senator Dino Melaye. The second reason was for the IGP to answer questions on
the killings perpetuated across the country by armed herdsmen and other
militias. Recall that the Senate previously debated the unabated killings by
herdsmen and other armed groups in Nigeria during it plenaries on January 16
and 17, 2018 and resolved inter alia: that the IG should arrest and prosecute
the suspects within Two weeks (14 days).
The facts as stated above are already in the public domain and
verifiable. My intervention in this piece is to dissect the law on the matter.
As a preliminary point, the power of the Senate to summon any person
in Nigeria is derived from Sections 88
and 89(1)(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as
amended) (subsequently referred to as ‘the Constitution’)
as reproduced infra:
Section
88 (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.”
88
(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".
89
(1) For the purpose of any investigation under Section 88 of this Constitution
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 - (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." (Capitalize for emphasis).
It is beyond contention that the IGP can be summoned by the Senate
to give evidence on any of the matters listed in Section 88
(1) for the purposes envisaged under Section 88 (2) of the Constitution. In essence, the
real issue in controversy here is not whether the Senate can summon the IGP,
but for what purpose?
Two reasons were adduced by the Senate for summoning the IGP. The
first reason was for him to address it and answer questions on the travails of
Senator Dino Melaye. The second reason was for the IGP to explain the wanton
killing of innocent Nigerians in Benue State and other parts of the country.
On the issue of mass killings across the country, by the combined
effect of Section 214 (1)(b) of the
Constitution and Section 4 of
the Police Act Cap. P19 LFN 2004,
the responsibility for the maintenance of law and order and security of lives
and property is vested in the Nigeria Police Force. Therefore, the Senate acted
within the scope of its oversight powers under Section 88 of the Constitution
by summoning the IGP over the killings in Nigeria since the Police Act that
vests the duty of security on the Police is a law made by the National
Assembly; of which the Senate is an arm as provided in Section 47 of the
Constitution.
On the issue of Senator Dino Melaye, some of my learned friends have
contended that the Senate cannot summon the IGP over the manner the Kogi
Senator was treated by the Police. With the greatest respect to them, that
argument can be faulted for the reasons canvassed below.
The powers to search, arrest, detain and or prosecute any person are
donated to the Police by an Act of the National Assembly, specifically Part 4 of the Police Act. When the Police
exercise its powers of searching, arresting, detaining or prosecuting any
person in Nigeria, they are merely executing a law made by the National
Assembly. Note that by virtue of Section 88
(1)(b)(i) of the Constitution reproduced supra, the Senate is
imbued with the power to carry out investigation into "the conduct of
affairs or any person, authority, Ministry or government department charged, or
intended to be charged, with the responsibility for executing or administering
laws enacted by the National Assembly."
If it is conceded that the police was executing a law made by the
National Assembly when it arrested Senator Dino Melaye for alleged sundry
offences, it follows that the Senate can investigate the conduct of the affairs
of the IGP and the Police relating to how it executed its powers in arresting
and detaining Dino Melaye, provided that the purpose of such investigation by
the Senate is to expose corruption, inefficiency or waste in the execution of
the powers of the Police under Part 4 of the Police Act.
I agree that the Senate cannot investigate a matter which is a subject
of litigation based on the sub judice rule. Admittedly, this rule is cognizable
under Order 53(5) of the Senate Standing Orders 2015,
(as amended) which states that ‘’Reference shall not be made to any matter on which a judicial
decision is pending in such a way as might in the opinion of the President of
the Senate prejudice the interest of parties thereto.’’ Interestingly,
IGP Idris relied on this very provision to evade probe by the Senate over the
allegations made against him by Senator Misau when he appeared before the
Senate ad-hoc committee on the matter.
In the present case, Dino Melaye was first arraigned on May 2, 2018
in Abuja which coincided with the second summons. As at April 25, 2018 when the
IGP was first summoned to appear, there was no pending litigation on the
Melaye’s case. If the IGP is now relying on the sub judice rule to ignore the
Senate summons, which should be properly raised when he appears before the
Senate, which court case is preventing him from honouring the summons to explain
the ongoing wanton killings across the country?
There is nothing unprecedented or unusual in the decision of the
Senate to investigate the actions of the Nigeria Police Force. Indeed, there
are hundreds, if not thousands, of cases of alleged abuse or misuse of power
and human rights violation by the police pending before the Senate and the
House of Representatives Committees on Human Rights and Public Petitions. These
are cases brought by Nigerians of diverse economic, social and political
standing to seek redress against various forms of reckless and unlawful
exercise of power by the police and other law enforcement agencies. It will be
to the collective disadvantage of the people of Nigeria if the National
Assembly was not empowered by the Constitution to investigate the conduct of
affairs of the police. The law cannot be changed overnight merely because the
Senate has decided to invoke its oversight powers for the benefit of one of its
member. The right of Melaye or any other Nigerian to seek redress in court does
not operate as a bar to the oversight powers of the National Assembly.
It is also my considered view that the IGP cannot delegate other
officers to represent him when the Senate has expressly indicated that it wants
the IGP to appear before it in person. Section 89
(1)(c) of the Constitution empowers the Senate to summon
ANY PERSON. It is also unhelpful to posit that the Inspector General of Police
is an office and can be represented or that the occupant of the office can
delegate his functions. The Police Act, which authorizes the IGP to delegate
his functions, is subservient to the Constitution which empowers the Senate to
summon ANY PERSON. The IGP cannot rely on his power of delegation under the
Police Act to challenge the power of the Senate under the Constitution to
summon him to appear in person.
The Senate is empowered by Section 89
(1)(d) of the Constitution to issue a warrant to compel
the attendance of the IGP since the excuses given by the IGP are not
satisfactory to the Senate. Unfortunately, it is the same Nigeria Police Force
headed by the IGP that has the duty under Section 89 (2)
of the Constitution to enforce and execute the warrant.
This is why the conduct of the IGP must be deprecated and viewed not just as a
flagrant disregard for the rule of law, but a despicable attack on our nascent
democracy.
I further submit that it is not within the powers of the IGP to
determine whether the reasons proffered by the Senate for summoning him are
within the scope of Section 88 of the Constitution. That is for the courts to
determine. Only a court of competent jurisdiction can interpret or limit the
constitutional powers of the Senate under Sections 88 and 89 of the
Constitution. If the IGP genuinely believed that the Senate acted ultra vires
by summoning him, he ought to have sought redress in court.
I am conversant with the decisions of the Court of Appeal in the
cases of Senate of National Assembly v.
Momoh (1983) 4 NCLR, 269 and Mallam
Nasir Ahmed El-Rufai v. The House of Representatives, National Assembly of the
Federal Republic of Nigeria & Ors. (2003) 46 WRN 70, where
the appellate court pronounced on the limits of the investigative powers of the
National Assembly under the Constitution. However, a case is only an authority
for what it decides. The facts of those cases are not on all fours with the
present case. If the Senate in their letter of invitation (summons) to the IGP
had clearly indicated that the summons was for the IGP to explain the killings
in the country and the manner Melaye was treated, the Senate is in order as
those reasons are within the scope of the Constitution. The IGP is not a
private citizen but a public officer.
Last month, the High Court of the Federal Capital Territory presided
over by Justice Abba Bello Mohammed, dismissed a suit instituted by this same
IGP, Ibrahim Idris, against the Senate when he was summoned over the damning
allegations leveled against him by Senator Isa Misau. The Court upheld the
powers of the Senate under Sections 88 and 89 of the Constitution to summon the
IGP. The IGP is yet to honour that summons despite losing in court.
This same IGP has continued to flout the subsisting orders of two
different courts of competent jurisdiction for him to unseal the office of the
Peace Corps of Nigeria. We are dealing with an IGP who flouted the directive of
the President and Commander-in-Chief for him to relocate to Benue State. The
contemptuous conduct of the IGP towards the institution of the Senate is
intolerable. This unbridled impunity by the Chief Law Enforcement Officer
should not be allowed to stand.
Let it be known that I am neither a fan of Senator Dino Melaye nor
do I share in his political idiosyncrasy. I also have strong reservations about
the present crop of members of the Senate and its leadership. However, we must
never condone the destruction of our institutions. Senate President Bukola
Saraki and Senator Dino Melaye will not be in the Senate forever. We should
resist the temptation to play to the gallery by trivializing the offensive, unlawful
and arrogant conduct of the IGP, Ibrahim Idris, simply because we disagree with
the Senate leadership or membership.
This is about the survival of our nascent democracy.
Thank you.
Inibehe
Effiong is a Lagos-based Legal Practitioner and Human Rights Activist.
Email: Inibehe.effiong@gmail.com
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