By Nonso Anyasi
It has now become a quadrennial occurrence for the Nigerian polity to experience debates on the constitutionality or otherwise of the President’s disobedience to summons/invitation by the National Assembly to account for executive actions/inactions. This debate largely arises from the perceived conflict between the provisions of Sections 67(1) and 89 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Ideally, a country governed by responsible leaders would not put its citizen through the unnecessary venture of indulging in such constitutional debate, because an invitation by the apex legislative house should not be treated with levity by the President, but be rather obeyed out of respect to the sovereign will of the people. This debate has once again become very necessary given the refusal of President Muhammadu Buhari – on the advice of his Attorney General- to honour and obey an invitation by the National Assembly to come account for some executive decisions and actions.
It is necessary to clarify from the onset that any debate which involves the interpretation of the sacrosanct provisions of our precious and organic Constitution can never be otiose, moot or academic, but such debates contain live issues that can (and should) be examined by the Courts (and legal scholars) at any time. Please see the case of ARDO v INEC (2017) LPELR-41919 (SC).
Thus, proponents of the school of thought (led by the Honourable Attorney General of the Federation) who subscribe to the opinion that President cannot be summoned or compelled to attend a joint sitting of National Assembly, or of either House of the National Assembly; or that the President has a constitutional right to refuse to honour such invitation where issued, hinge their arguments on the provisions of Section 67(1) of then Constitution which provides thus:
“The President MAY attend any joint meeting of the National Assembly or any meeting of either House of the National Assembly, either to deliver an address on national affairs, including fiscal measures or to make such statement on the policy of government as he considers to be of national importance.” (underlining and capitalization mine for emphasis).
This School of thought subscribe to the view that the use of the modal verb MAY in this section confers a discretion on the President, which he could choose not to exercise. However, this invokes the question; does the use of the word “may” in a statute or the Constitution indeed confer a discretion? Or can it be interpreted as being mandatory? The Court of Appeal acknowledged this jurisprudential dilemma in the case of AROWOSAYE V OGEDENGBE (2008) LPELR-3701 (CA) when the Noble Lord Chima Centus Nweze JCA (as he then was, now JSC), held as follows:
“The interpretation of the word “may” has always posed some difficulties. In some circumstances, the word has been held to import discretion. However, in other circumstances, it has been held to be mandatory.” (underlining mine for emphasis).
In the case of UDE V NWARA & ANOR (1993) LPELR-3289 (SC) the Apex Court laid down the law that the use of the word “may” in a legislation should be construed as mandatory when it imposes a duty on a public official. The Apex Court held as follows:
“I agree with Chief Umeadi that although Section 28(1) of the Law states that the lessor “may enter a suit”, “may” should be construed as mandatory i.e. as meaning “shall” or “must. I believe that it is now the invariable practice of the Courts to interpret “may” as mandatory whenever it is used to impose a duty upon a public functionary the benefit of which enures to a private citizen.” (underlining mine for emphasis).
Therefore, this writer submits that any argument that attempts to excuse the President’s disobedience to National Assembly invitations by virtue of the purported discretion conferred on him in Section 67(1) of the Constitution is not pure or absolute, but is rather standing on a shaky and greatly contested legal foundation as the modal verb “may” can be construed to connote compulsion to perform an act and not discretion.
Furthermore, there is the fundamental prescription that in the interpretation of the provisions of the Constitution, Sections of the Constitutions must be construed holistically and not in isolation (Please see the case of A.G FEDERATION V ABUBAKAR (2007) All FWLR (Pt. 389) 1264, 1289 -1291). Also, the Courts (and indeed officers of the Courts including the Honourable Attorney General of the Federation) must interpret the Constitution in such a way that the elementary principles of Government are upheld (Please see the case of SARAKI V FRN (2016) 3 NWLR (PT 1500) 531, 631 -632). The Constitution must never be interpreted in any manner that would do violence to the fundamental principles upon which our democracy is built. Please see the case of DAPIANLONG V DARIYE (2007) 8 NWLR (PT. 1036) 239).
Therefore, what are the fundamental principles of government upon which our Constitution is based that must guide an interpreter of the Constitution? Our 1999 Constitution is premised upon the governmental principles and ideals of democracy, federalism, separation of powers and checks and balances. The provisions of Chapter 1 of the Constitution emphasizes these underlying principles which form the rubric of the administration of this Country. Any attempt to interpret the provisions of the Constitution must be done in such a manner that gives effect to these underlying principles. Any purported interpretation that does violence to these principles are untenable and null. Please see the case of SKYE BANK V IWU (2017) LPELR-42595 (SC).
Therefore, in construing the provisions of Section 67(1) of the Constitution, one needs to examine the provisions of other Sections of the Constitution which can be interpreted together with it to unravel the intention of the framers of the Constitution. It is clear that from the ipsissima verba of that section, the President does not need the invitation of the legislature before he exercises his powers under this Section. This writer submits that the purpose of this Section 67(1) of the Constitution is to give a constant access to the President to address either or both houses of the National Assembly even without the invitation of the National Assembly, and not necessarily to confer a discretion on the President to refrain from attending sessions of the legislation where necessary.
It is trite that the draftsperson of any legislation does not use words extravagantly. Every single word in a legislation has its purpose. This writer submits that the closing phrase of Section 67(1) of the Constitution lends further credence to the interpretation that this Section only serves to confer an open and constant access on the President to attend National Assembly sittings when the President so desires. The said subsection ends with the clause “…as he considers to be of national importance.”
It is clear that it is the President who has the authority to determine what is of national importance that warrants his visitation to the National Assembly. The power conferred on the President in this Section can only be exercised for the purposes stated in this section and cannot extend to cover other purposes. The President needs not wait for an invitation from the federal legislative body before exercising this Section 67(1) power.
The National Assembly on the other hand has been given the powers to investigate the conduct of affairs of any person or authority charged with the duty of administration. Please see Section 88(1)(b) of the Constitution. Section 89 of the Constitution further gives the National Assembly the powers to summon any person to appear before it to give evidence in respect of such investigation. Section 88(1)(b) of the Constitution provides that each House of the National Assembly shall have the power to direct an investigation into the conduct or affairs of any person, authority, Ministry of government charged with the duty of executing or administering laws enacted by the National Assembly.
The Constitution unequivocally provides in Section 5 of the Constitution that the executive powers of the Federation shall be vested in the President and may be exercised directly by him and shall extend to the execution and maintenance of this Constitution as well as all laws made by the National Assembly.
A community reading of the provisions of Sections 5, 67, 88 and 89 of the Constitution shows the intentions of the draftsperson of the Constitution to infuse the principle of checks and balances in the administration of the Country. The President is the head of the executive arm of government. He is the number one person charged with the administration of the laws of the Federation. The Provisions of Section 88 of the Constitution shows the clear intention of the draftsperson of the Constitution to subject the exercise of executive powers under Section 5 of the Constitution to checks, investigations and balances by the National Assembly.
This is the fundamental principle upon which our Constitution is built. The principle of checks and balances is infused in our system of government and the Courts have always acknowledged this principle. In the case of GOVERNOR OF EKITI STATE V OLAYEMI (2016) 4 NWLR (PT. 1501) 1 @ PP. 41-42 (PARAS. G-A) RATIO 12, the Court of Appeal held thus:
“The Constitution of the Federal Republic of Nigeria, 1999 (as amended), despite of its recognition of the doctrine of separation of powers, has expressly made provisions for the legislature to exercise limited oversight functions in relation to the executive at both the Federal and State levels. So the concept and application of the concept of separation of powers under the Constitution does not give each arm of government the liberty to act without being subject to any restraint or check by another arm of government.”
This writer submits that the powers donated to the National Assembly under Section 88 and 89 of the Constitution is in conformity with this principle of checks and balances which operates as an limitation to the fundamental doctrine of separation of powers.
Admittedly, the President enjoys constitutional immunity under Section 308 of the Constitution and cannot be arrested or compelled to attend the proceedings of any Court. Likewise, no civil or criminal proceedings shall lie against the President in his personal capacity during his tenure. However, the National Assembly is not a Court, it is a distinct arm of Government that derives its powers directly from the Constitution. The investigative powers conferred on the National Assembly by virtue of Section 88 of the Constitution does not elevate the National Assembly into the status of a Court. The Courts belong to Judicial arm of Government while the National Assembly belongs to the Legislative arm of Government. Therefore, this writer submits that the provisions of Section 308 of the Constitution shall apply only to the extent that the President cannot and shall not be arrested by the security forces during his presidency. However, this does not confer a blanket immunity on the President to refrain from attending National Assembly summons and proceedings.
I have submitted so much in this article. It is perhaps neater and tidier if I summarize by way of recapitulation as follows:
- The President has the powers to attend the any or the joint houses of the National Assembly at any time to deliver an address on national affairs on fiscal issues and governmental policy as he considers of national importance. The President does not need an invitation from any of the legislative house to exercise this power.
- The National Assembly has the powers to investigate and invite or summon any member of the executive including the President to account for the execution and administration of the country and the laws of the land.
- The President does not have any discretion to exercise when he is summoned by the National Assembly to answer questions relating to the administration of the Country. He is bound by his oath of office and the sovereign will of the people to honour such invitation.
- The provisions of Section 308 of the Constitution does not grant the President any immunity to refrain from giving testimony before the National Assembly or answering any questions in respect of any investigation thereat.
- The President cannot be arrested by the Police of the Security forces for any reason whatsoever. However, if he fails to honour a summons to appear before the National Assembly, the National Assembly can commence impeachment proceedings against him as such act amounts to gross misconduct as defined by the learned jurist Niki Tobi JSC in the case of INAKOJU V. ADELEKE(2007) 4 NWLR (Pt 1025) 423.
Nonso Anyasi is a Dispute Resolution and Data Privacy Attorney based in Lagos and can be reached via email@example.com.