Senate Versus IGP: A Dissection Of The Law, By Inibehe Effiong
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.
Inibehe Effiong is a Lagos-based Legal Practitioner and Human Rights Activist.