THE ‘NOTWITHSTANDING’ AND THE ‘ OR OTHERWISE’CLAUSESUSED IN SECTION 308(1) OF THE 1999 CONSTITUTION OF NIGERIA: IMPACTS AND IMPLICATIONS ON THE POWER OF THE NATIONAL ASSEMBLY TO INVITE/SUMMON A PRESIDENT OF NIGERIA

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The issue of the power of the National Assembly or the House of Representatives to summon and or invite the President of Nigeria- Muhammadu Buhari- and the position of the Honourable Attorney-General of the Federation and Minister of Justice- Abubakar Malami (SAN) have generated some legal issues that made some lawyers and non-lawyers to give divergent opinions on the said issues while some of the opinions argued that the National Assembly has such power to summon and or invite the President, some are of the submission that the National Assembly has no such power under the 1999 Constitution of the Federal Republic of Nigeria(as amended)-herein after referred to as the Constitution. This paper is aimed at considering the impacts and implications of the use of ‘notwithstanding’ and the ‘ or otherwise’ clauses used in section 308(1) of the Constitution, while submitting that having regards to these clauses, the National Assembly lacks the constitutional power to invite and or summon the President as the National Assembly or the House of Representatives has done in the current instance.

First and foremost, section 67 of the Constitution provides thus ‘(1) 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.’. Also, section 88 of the Constitution which provides for the powers of the National Assembly to invite and or issue summons compelling the appearance of any person to appear before it for questioning or investigation or any matter or issue provides thus—(1) Subject to the provisions of this Constitution each House of the National Assembly shall have power by resolution published in its journal andin the Gazette of the Government of the Federation to direct or cause to be directed an 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 the National Assembly ; and (ii) disbursing or administering moneys appropriated or to be appropriated by the National Assembly. (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 to correct any defects in existing laws; and (b) expose corruption, inefficiency or waste in the execution oradministration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it. Also, section 89 of the Constitution provides thus —(1) For the purposes of any investigation under section 88 of thisConstitution and subject to the provisions thereof, the Senate or the House of Representatives or a committee appointed in accordance with section 65 of this Constitution shall have power — (a) to procure all such evidence, written or oral, direct or circumstantial, as it may think necessary or desirable, and to examine all persons as witnesses whose evidence may be material or relevant to the subject matter ; (b) to require such evidence to be given on oath ; (c) to summon any person in Nigeria to give evidence at any place or to produce any document or other thing in his possession or under his control, subject to all just exceptions ; and (d) to 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 to 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 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 authorized in that behalf by the President of the Senate or the Speaker of the House of Representatives, as the case may require.’.

Furthermore, it is my humble submission that without regard to section 308(1) of the Constitution (or without reading the entire provisions of the Constitution as a whole), it is likely to be misconstrued that the constitution has empowered the National Assembly or either of the two Houses to invite and or issue summons on the President as the House of Representatives had done in this situation. However, as would be seen in the following paragraphs of this paper, it would be clear that the Constitution has not given such powers on the National Assembly or either of the two Houses.

First and foremost, the principles/doctrine of separation of powers in sections: 4, 5 and 6 would not have permitted the National Assembly to possess such powers to issue summons on the President. Even though the provisions of sections: 67(1), 88 and 89 of the Constitution cited above are checks and balances (oversight) on the executive powers by the legislature, such powers do not include or affect the President. Therefore, the provisions of the Constitution must be read as a whole and not in isolation. For instance, I humbly refer to the case of INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC). v. ADMIRAL MURTALA NYAKO & ORS (CONSOLIDATED)(2011) LPELR-CA/A/117/2011, the Court of Appeal of Nigeria held thus ‘INTERPRETATION OF STATUTES – CONSTITUTION: Whether provisions of the Constitution should be interpreted in isolation or not.”The law is settled that the provisions of the Constitution should not be interpreted in isolation but rather along with other related and relevant provisions thereof which assist in achieving the object intended by the framers. For instance, in the case of P.D.P. v. INEC. (1999) 7 SC. (Pt. II) 30, (1999) 11 NWLR (626) 200 at 249, Uwais, CJN had pointed to what is required to be done in interpreting the provisions of a Statute or Constitution as follows:- “It is settled that in interpreting the provisions or Section of a Statute or indeed the Constitution, such provisions or Sections should not be read in isolation of the other parts of the Statute or Constitution, In other words, the Statute or Constitution should be read as a whole in order to determine the intendment of the makers of the Statute or Constitution.” See also OJUKWU v. OBASANJO (2004) 7 SC. (Pt. II) 117 at 124.” Per GARBA, J.C.A. (P.48, Paras.C-G). The Court further held thus ‘COURT – DUTY OF COURT: The duty of the court where the provisions of a Statute or Constitution are clear. “Similarly, the law is also well known that where the provisions of a Statute or Constitution are clear and unambiguous, the duty of the court would simply be to give them their plain and ordinary meaning since the words used best say the purport of the provisions. The only caveat is that where giving plain and ordinary meaning would result in an absurdity, giving the peculiar facts and circumstances of a case. RE:OLAFISOYE (2004) 1 SC (pt. II) 27 at 60. OJUKWU v. OBASANJO (supra) at page 124. AGBAREH v. MIMRA (2008) 2 MJSC. 134, SHEHM v. GOBANG (2009) 6 MJSC (pt. II), 162. In addition, in the interpretation of constitutional provisions, all the accepted canons or rules of interpretation would be employed and would not abate in the effort to get at what the aim and intent of provisions are in the context of the facts to which they are to be applied. See: F.R.N. v. OSAHON (2006) ALL FWLR (312) 1975 at 2001, LEMBOYE v. OGUNSUJI (1990) 6 NWLR (155) 210. It is also settled law that the provisions of the Constitution are to be interpreted literally and liberally particularly where they admit of no ambiguity.” Per GARBA, J.C.A. (P.49, Paras.A-F). Finally, relevant to this discourse too, the Court held thus ‘7. COURT – DUTY OF JUDGE: Duty of Judge when interpreting the Status or Law “The duty of a judge is to expound the law and declare it to be what it is. A judge is not a propagator of public policy. See IN RE MIRANS, Ex PARTE OFFICIAL RECEIVER (1891) 60 L.J.REP. (N.S.) Q.B.399 where CAVE, J. said thus: “Judges are more to be trusted as interpreters of the law than as expounders of what is called public policy.” HON. JUSTICE ADEREMI, JSC, cautioned judges in OBI V. INEC (supra) at 643 as follows: “The power of interpretation must be lodged somewhere and the custom of the Constitution has lodged it in the Judges. If they are to fulfill their functions as Judges that power could hardly be lodged elsewhere. But, justice according to law which any good Judge must ensure he dispenses at all times, demands that even when he (the Judge) is seen to be free by the enormity of the power conferred on him, he is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or goodness or what colouration a piece of law should take. The Judge must always draw his inspiration from consecrated principles. The next question that follows, is, what are these principles? Judges, in the exercise of their interpretative jurisdiction, must only interpret the words of a statute or constitutional provision, where they are as clear as crystal, according to their ordinary and grammatical meanings without any colouration. It is true that courts are always enjoined, in the course of interpreting the provisions, to find out the intention of the legislature, but there is no magical wand in this counseling. The intention of the legislature, or put bluntly, the intention of National Assembly at the Federal level or the State House of Assembly at the State level, is not to be judged by what is in its mind but by its expression of that mind couched in the words of the Statute. If at the end of the interpretative exercise carried out on the provisions of Statute or Constitution, a judex’s personal conviction as to where the justice and rightness of the matter lies is returned, that would make the judiciary lose its credibility, authority and its legitimacy. That will not be healthy for the development of the law and its administration.” Per Adumein, J.C.A. (Pp.130-132, Paras. G-B).

Therefore, I humbly submit that the ‘immunity’ doctrine expounded by the Constitution in section 308(1) has excluded the President (in this instance) from being summoned except he chooses (by section 67(1) of the Constitution) to attend any of the joint meetings 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, as the words used by the Constitution in section 67(1) (supra) is ‘The President may attend’ which is not obligatory on the President rather at his discretion. Section 308 of the Constitution provides thus 308.—(1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section— (a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office ; (b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise ; and (c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued : Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office. (2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party. (3) This section applies to a person holding the office of President or Vice- President, Governor or Deputy Governor ; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.’. (Underlining is mine for emphasis).

Having regard to the underlined words above (i.e. ‘notwithstanding’ and ‘otherwise’), it is my humble submission that ‘notwithstanding’ would be interpreted to mean ‘notwithstanding what is contained in sections 67(1) or 88 or 89 or any other section of part of the Constitution, the President cannot be compelled and or invited and or issued summons for his appearance before the National Assembly or any of the two Houses as the President has immunity from invitation and or summons. For instance, I humbly rely on the case of Ahmed v C.O.P. (pt. 1304) NWLRon the effect of the word ‘Notwithstanding’which has been explained in the case in the following words ‘It is to be noted that in legal drafting, the term ‘notwithstanding’ denotes exclusion, a removal from the orbital confines of an enactment. It further simply means, in spite of, irrespective of, without being adversely affected by or disregarding. Thus, provision in question should be construed, taken and applied as a term of exclusivity. See” Olatunbosun v N.I.S.E.R. Council (1988)3 NWLR (pt.80) 25, Kotoye v Saraki (1994)7 NWLR (pt.357) 414, Emesim v Nwachukwu (1999)6 NWLR (pt. 605) 154, Total (Nig.) Plc. V Morkah (2002)9 NWLR (pt. 773) 492, N.D.IC. V Okem Enterprises Ltd. (2004) 10 NWLR (pt. 880) 107, N.N.P.C. V Lutin Investments Ltd. (2006) 2 NWLR (pt. 965) 506. Consequently, the phrase ‘notwithstanding’ in subsection (3) of S. 341 (supra), forecloses any other consideration other than the ones stated in the said subsection (3) which relaxes the compelling, velocity and damnifying gravity compacted in subsection (1) thereof.’ (Page 125, para. D—F).

Furthermore, the use of the word ‘or otherwise’, in my humble view, would mean that it is not only proceedings before a court of law or tribunal that the President enjoys immunity against but including any other proceedings different from the court and the tribunal (which in my humble view, includes any such proceedings (and or plenary) in the National Assembly’s House or the House of Representatives).

Therefore and finally, it is my humble submission that the National Assembly and or any of the two Houses (and specifically in this current situation, the House of Representatives) lacks the Constitutional power to invite and or issue any summons against and or on the President of Nigeria or any President of Nigeria.

Email: hameed_ajibola@yahoo.com

 

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