Buhari Makes U-turn, Ignores House’s Summon on Constitutional Grounds

•AGF: Lawmakers lack powers to invite president
•Omo-Agege backs Malami as minority caucus, lawyers disagree
•We are yet to be informed of president’s change of mind, say legislators

Davidson Iriekpen in Lagos, Iyobosa Uwugiaren, Omololu Ogunmade, Chuks Okocha, Alex Enumah, Adedayo Akinwale and Udora Orizu in Abuja

A day before his commitment to honour an invitation by the House of Representatives to address lawmakers on what his administration is doing to combat rising insecurity, President Muhammadu Buhari yesterday walked back on his promise.

The presidency cited the constitution, which the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN), said does not confer the power to summon the president on the National Assembly, for Buhari’s change of mind.

However, the minister’s position elicited divergent reactions from a cross-section of stakeholders, with Deputy President of the Senate, Senator Ovie Omo-Agege, concurring with him while the House Minority Caucus and lawyers differed.

Notwithstanding the presidency’s clarification, the House spokesman, Hon. Ben Kalu, told THISDAY yesterday that lawmakers were still expecting the president to fulfill to his promise to appear before them today.

Kalu anchored his position on the fact that the House has not been formally notified that the president would no longer honour the invitation.

House Speaker, Hon. Femi Gbajabiamila, had told State House reporters last Wednesday, when he led a delegation to convey the House’s invitation to Buhari that the president had pledged to honour the invitation.

The summoning of the president followed the consideration of a motion on December 1, moved by Hon. Satomi Ahmed, on behalf of 10 other Borno State federal lawmakers, to summon Buhari, and to amongst other things, declare a state of emergency on some areas to tackle the worsening insecurity.

The motion was informed by the killing of over 43 rice farmers in Zabarmari village, near Maiduguri, the Borno State capital, on November 28.

Although Gbajabiamila was non-committal on the date of the president’s appearance, THISDAY had exclusively reported last week that the president might appear before the House today.
Buhari’s Special Assistant (New Media), Ms. Lauretta Onochie, in a tweet a few days later, confirmed that the president would honour the House’s invitation today.

But a few days after committing himself to honour the House’s invitation, the president came under pressure of All Progressives Congress (APC) governors and other party bigwigs not to honour the invitation.

THISDAY had exclusively reported in its lead story in yesterday’s edition that at the APC’s National Executive Committee (NEC), chaired by Yobe State Governor, Mr. Mala Buni, on Tuesday, in Abuja, the party’s foremost organ had queried the summon of the president by the House and prevailed on him to rescind his decision to appear before the joint session of the National Assembly today.

It was gathered that at the NEC meeting, a prominent South-west governor had reportedly put Gbajabiamila on the spot for allowing the motion summoning the president to pass, advising Buhari to ignore the invitation.

The Chairman, Caretaker/Extraordinary National Convention Planning Committee, Buni, had said at the meeting that the party had decided that Buhari should not appear in the National Assembly today.
Gbajabiamila reportedly interjected that it would be the president’s prerogative to determine whether to honour the summon or not.

It was also learnt yesterday that in furtherance of the NEC’s decision, APC governors, led by the Chairman, APC Governors’ Forum and Kebbi State Governor, Alhaji Abubakar Bagudu, met behind closed doors on Tuesday night with party lawmakers on why they are opposed to the president honouring the House’s invitation.

They were said to have raised concerns about opposition lawmakers heckling the president to embarrass him and the party.

THISDAY gathered the lawmakers were not happy with the party’s position but there was little or nothing they could do so as not to appear to be confrontational with party authorities.
However, Malami’s intervention yesterday, challenging the House’s power to invite the president, made his non-appearance today before the lawmakers a fait accompli.

Malami, in a statement, said the ‘’confidentiality of strategies’’ employed by the president as the commander-in-chief of the Armed Forces of the Federal Republic of Nigeria is not open for public exposure in view of the security implications that could undermine the war against terror.

‘’The fact that President Muhammadu Buhari was instrumental to the reclaiming of over 14 local governments previously controlled by the Boko Haram in North-east is an open secret, the strategies for such achievement are not open for public expose,’’ the minister stated.

According to him, Buhari enjoys constitutional privileges attached to the Office of the President, including ‘’exclusivity and confidentiality investiture in security operational matters,” which remains sacrosanct.

Malami added that the National Assembly has no constitutional power to envisage or contemplate a situation where it could summon the president on operational use of the armed forces.

He argued: ‘’The management and control of the security sector is exclusively vested in the president by Section 218 (1) of the Constitution as the Commander-in-Chief of the Armed Forces, including the power to determine the operational use of the armed forces.

‘’An invitation that seeks to put the operational use of the armed forces to a public interrogation is indeed taking the constitutional rights of lawmaking beyond bounds. As the commander-in-chief, the president has exclusivity on security and has confidentiality over security.

‘’These powers and rights he does not share. So, by summoning the president on national security operational matters, the House of Representative operated outside constitutional bounds. President’s exclusivity of constitutional confidentiality investiture within the context of the constitution remains sacrosanct.”

While condoling with the bereaved and sympathising with the victims of insecurity in the country, Malami said national security is not about publicity and the nation’s security architecture cannot be exposed for the sake of getting publicity.

He added that Buhari has recorded tremendous success in containing the ‘’hitherto incessant bombing, colossal killings, wanton destruction of lives and property’’ that bedevilled the country before his presidency in 2015.

Although Malami was not categorical in his statement whether or not the president will appear today before the House, Special Adviser to the President on Media and Publicity, Mr. Femi Adesina, while responding to THISDAY inquiry on the president honouring the invitation said Buhari would not need to do so anymore, given the clarification by the AGF.

Adesina explained that the AGF had issued a statement stating that the summon was at variance with the constitution.

“The AGF has released a statement on the non-constitutionality of it,” he said.
A senior aide to Gbajabiamila, who craved anonymity, also confided in THISDAY last night that the president would no longer honour the House’s invitation.

We’ve Not Been Informed of Buhari’s Change of Mind, Says House

But the House spokesperson, Hon. Benjamin Kalu, told THISDAY that he doesn’t want to react to rumour, saying Buhari has not officially communicated his decision not to honour the initial invitation.
Kalu, while reacting to THISDAY’s enquiry, added that the House still awaits official communication from the presidency on Buhari’s appearance today.

“We are yet to be communicated formally if he (Buhari) is not coming,” Kalu stated.

Row over Malami’s Claim on Constitutionality of House’s Invitation

Prominent lawyers, including one of Malami’s predecessors, Chief Akin Olujimi (SAN), as well as Mr. Femi Falana (SAN) and Mr. Raji Ahmed (SAN), however, disagreed with the AGF on his verdict that the House lacks the constitutional power to invite the president, especially on security issues.

But Deputy President of the Senate, Senator Ovie Omo-Agege, backed the minister’s position.

The senior lawyers, in separate interviews with THISDAY, said the National Assembly is legally empowered to summon the president on any issue.

They cited various constitutional provisions that empower the lawmakers to invite the president or any other public officer to answer questions on any issue.

According to Olujimi, the National Assembly has a duty to call on anyone, including the president, when the need arises.

“When matters like these happen, particularly the issue of security, they are entitled to find out from the number one citizen what exactly he is doing or proposing to do in regards to the insecurity in the country.

“It is not an issue that we begin to debate the constitutionality or otherwise of the call on Mr President,” he said.

Also sharing the same views with Olujimi, Falana described Malami’s statement as just “an attempt to look for justification for the unsolicited advice of the state governors.”

He, however, appealed to the president to ignore the governors’ advice, which is not only misleading but aimed at putting him to ridicule.

“Having undertaken to honour the invitation, the president should ignore the misleading advice of those trying to expose him to ridicule by portraying the president as inconsistent or a man who cannot honour his own words,” he stated.

On the legality of the summon, Falana said sections 88 and 89 of the constitution as amended empower the National Assembly to summon any public officer in the country.

“The fact that the president is the commander-in-chief of the armed forces does not inhibit the National Assembly from asking him to explain what has happened to the funds earmarked for the defence of the country,” Falana said.

Raji, however, described Malami’s argument as “90 per cent in political content and less than 10 per cent of law.”

While noting that the court is the best place to decide whether the National Assembly has the powers or not to summon the president, Raji called for a jettisoning of the presidential system of government currently practised in Nigeria.

“I think the matter should be tested in court. But most importantly, we should jettison the presidential system for a modified parliamentary system. I wonder if any state official will ever talk down on the House of Commons in the UK this way! I doubt if such can be uttered in any presidential system, including the USA,” he said.

Another senior lawyer, Mr. Dayo Akinlaja (SAN), noted that what the National Assembly has done is not out of place when the provisions of Sections 14, 67, 88 and 218 (4) (a) of the constitution are taken into consideration.

“Much as it is beyond debate that the National Assembly cannot compel the president to appear, it is not subject to disputation that the National Assembly can invite the president to appear before it so as to address the members on the fundamental issue of national security,” he said.

According to him, it will be downright insensitive and imprudent for the presidency to condemn the National Assembly by dishonouring the invitation, especially with the critical state of the nation’s security and general wellbeing.

“The National Assembly has unquestionable power to legislate on the issue of national security. That being so, it can invite the president and or institute investigation into issues of national security. It may, however, be said that the word “summon” is too trenchant to be used in the context of the president. The more civil way to it is to say that the National Assembly has a right to invite the president,” he explained.

The House Deputy Minority Leader, Hon. Toby Okechukwu, also faulted Malami’s position.

He said the attempt to pressurise Buhari not to appear before the National Assembly shows that some highly placed political actors in the ruling party are placing politics over the protection of lives of Nigerians.

Okechukwu, in a statement yesterday, described Malami’s position as “strange.”

He stated: “Without making undue efforts to win an argument, Section 89 (1) of the 1999 constitution, as amended, clearly empowers the Senate or the House of Representatives or a committee appointed in accordance with Section 62 of the constitution to procure evidence, written or oral and to ‘summon any person in Nigeria to give evidence at any place.

“Therefore, the attempt to pressurise Mr. President not to appear clearly shows that some highly placed political actors in the ruling party are placing politics over the protection of lives of Nigerians. The APC is evidently fiddling with propaganda and politics while Nigeria burns.”

Okechukwu added that the invitation of the House was a prudent effort to find a lasting solution to the worsening insecurity in the country.

An erstwhile political adviser to former President Olusegun Obasanjo, Chief Akin Osuntokun, said though the National Assembly has the powers to invite Buhari, the resolutions to do so only carry the force of moral and political persuasion.

According to him, “I think what he is saying is that they cannot mandate him to come; that the invitation is not legally binding. Not that they have no right to invite him. He can nonetheless decline the invitation. Plenary resolutions, including the resolution to invite him, only carry the force of moral and political persuasion.

“Normally it is the president who requests the National Assembly to invite him for the mandatory annual budget presentation or as it is the case in the United States to give the state of the union address.

“However Nigeria is in a desperate social, political and economic situation that warrants such an invitation from the National Assembly. The problem is that, largely on account of its persistent immoral behaviour, this National Assembly doesn’t command anyone’s respect.”

Omo-Agege said the House or the National Assembly lacks the power to summon the president.

Referring to the United States whose system of government Nigeria adopted, Omo-Agege stated that the US Congress has never invited the president to appear before it.

He said: “I am a constitutionalist. I believe that we are operating a presidential system of government. I believe in the concept of the separation of power. We have three equal arms of government.

“The framers of our constitution did not envisage that one arm of government will be summoning the head of another co-equal arm of government to come and offer an explanation on the floor.

“I think those of you who are familiar with the constitutional process, I don’t think you’ve ever heard that the US parliament had ever invited their president to appear before the House of Representatives or the US Senate unless for the purpose of budget or to address the state of the nation.

“In any event, we also have the concept of executive privilege. The executive arm of government has the power to claim executive privilege at any time any of such invitation is extended.

“It is not envisaged by the framers of the constitution that a day will come where the President of the Federal Republic of Nigeria, who heads the executive arm, would be asked to come and testify in the House of Representatives or the Senate.

“I do not also support that. I don’t believe that the president should come.”