Politics of legislative presidential summon

Last year was full of theatrics. In Nollywood, we know how to convince people that fiction is real. But in politics and law, there’s no room for theatrics. A court, for instance, does not issue an order it cannot enforce. It waves it aside as academic exercise. In politics, rule of law prevails. No arm of government can wield the power it does not have, no matter how expedient. At the heat of the security challenges last year, the National Assembly summoned/invited President Muhammadu Buhari to appear before it to interact with the legislators on the security challenges facing the country.

The first controversy was whether it was an invitation or a summon. Summon, by the dictionary, means “to call upon to do something specified”. An invitation that meets up with this requirement is a summon even if it is christened invitation. An official invitation is a respectful and subtle way to summon a “bigman”. If the police invite you for questioning and you refuse to appear, they will summon you and compel you to appear. So also is the National Assembly. If the legislators invite you to appear before them in the pursuit of their power of investigation and you refuse to honour it, they will summon you. The National Assembly invited the president to interact with the legislators on the issue of security confronting the country. This meets up with the definition of summon, even if the operative word is invitation. Contrast this with a social invitation where someone is invited to a wedding ceremony as a guest. The actors are the bride, the groom and the family. The guests are there to be witnesses to the marriage. Whoever among the guests that refuse to honour the invitation attract no legal consequences whatsoever. This kind of invitation does not amount to summon because the invitee is not called upon officially to do something specified. The mere fact that there was a national debate on whether the president is under any legal duty to attend shows clearly that it was a summon not an invitation, even if the language used was an invitation.

Many have argued that in Britain, the Prime Minister, faces questioning from the parliament regularly on the running of the country. With due respect to the proponents of this view, Britain operates the parliamentary system of government not presidential and in the parliamentary system, there is no separation of powers between the legislature and the executive as the executive are members of the parliament, including the Prime Minister. It follows, therefore, that the Prime Minister needs not be summoned to appear before the parliament to answer questions because he is a member of the parliament. It is a matter of routine for him to entertain questions from his colleagues as one of them. In a presidential system of government, there is  separation of power between the legislature and the executive. Each is equal, separate and independent to each other. No arm is allowed to intimidate, subordinate, overwhelm or usurp the powers of the other. They are established to check and balance the excesses of each other. No arm is allowed to compel another arm to do anything outside the law.

The kernel of the whole controversy was whether the National Assembly has power to invite/summon the President to do something specified. There are legally required situations in which the President may pay a visit to the National Assembly. The first scenario is when the President wants to present the budget to the National Assembly. Section 81 of the 1999 Constitution, as amended, states that “The President shall cause to be prepared and laid before each House of the National Assembly at any time in each financial year estimates of the revenues and expenditure of the Federation for the next following financial year”. In this instance, the President is the initiator of the process and is not compelled to do it in person. He is allowed to send a representative to do it on his behalf. Ngozi Okonjo-Iwuala, as Minister of Finance, has laid before the National Assembly, the budget of the country for the next following financial year on behalf of the President she served and it was termed perfectly legal. During any impeachment proceedings, though the process is usually initiated by the Legislature, the President is given the opportunity to appear before the judicial panel set up to try the allegations of misconduct levelled against him by the Chief Justice of Nigeria. Again, he is not compelled to attend. He may choose not to attend at all. Donald Trump refused to attend his impeachment proceedings and was still acquitted by the Senate. Also, in the event that the President wishes on his own to address the joint session of the National Assembly, on any issue of his choice, he will notify the National Assembly in writing and address them accordingly. Again, in this instance, the President is the initiator of the process and chooses what to say. None of these situations involves an interaction. It is a voluntary direct speech from the President to the members of the National Assembly.

Most legislators and lawyers based their argument that the National Assembly has the power to invite/summon the President on Section 89(1)(c) which states, “For the purposes 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 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”. This puts paid to all controversy as to whether it was an invitation or a summon because the section itself makes it clear that any such invitation is a summon. The argument of the proponents of this position that the National Assembly has the power to summon the President is that the President is like any other person and as such falls within the legal definition of “any person” in Section 89(1)(c). Maybe they did not advert their minds that the section confessed that it is “subject to all just exceptions”

Section 308 made it clear that 74 persons in Nigeria are not like any other person. They are immune to prosecution and “no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office”. These are the President and his Vice. The governors of the 36 states and their deputies. A summon is applied both in civil and criminal proceedings to compel appearance of a person summoned and as far as Section 308 is concerned, the President of the Federal Republic of Nigeria is not just any other person. You cannot compel his appearance through a summon in response to any official invitation, civil or criminal proceedings or investigation. Any such summon by or from any official institution or entity amounts to an academic exercise that ends in theatrics like the last one did. We expect that this year should be more of substance rather than shadows.

We operate the adversarial legal and political systems where we have the ruling party and the opposition party. The function of the ruling party is to make policies for the effective and efficient administration of the government while the function of the opposition is to offer criticisms of the ruling party by offering alternative courses of action the ruling party ought to have followed that will better the lots of the people. In Nigeria, the opposition has only been good in criticising ruling parties without any identifiable alternative courses of action proffered. Inviting a President to the National Assembly to face a combination of members from different political parties in an interaction formulated in a question and answer form is not how our democracy is established to function. This is because, the opposition party will not be objective in their interactions with the President. Indeed, they are not expected to be objective because underlining their intention is to legitimately discredit the ruling party in order to win the affection of the populace in the next election and consequently get their votes and support to win the next election. This job is the job of the members of the press who are expected to be objective in their interaction with the President, since, ordinarily, it is believed that they do not have any political ambition or undertone in their interactions beyond holding the ruling party or the opposition to account on their stewardship.

Moreover, a situation where a precedent is established that a President can be summoned by the National Assembly at will to discuss any issue of their choice is dangerous and may lead to instability where a different party is in charge of the National Assembly and another party is in charge of the Presidency. The opposition National Assembly may abuse that power to continually summon the President on frivolous excuses until they bring him down. Every government worldwide has its own frailties and granting an opposition Legislature power to summon and question a President of another party in power may empower them to capitalise on those frailties to embarrass and bring down the government. Democracy is established on the principle that sovereignty lies with the people and the people should as much as possible be the institution that should be changing their governments according to their desires not fellow politicians with ulterior motives, principal among them, being to grab power at the centre. It therefore beats my imagination that a ruling party at the National Assembly will acquiesce to the proposition that a President of same party should be summoned to face members of different political parties to be publicly prosecuted and embarrassed on how it executes the laws of the land when they have unfettered access to the President, if they want to be intimated on any issue of their choice. The President being summoned and questioned by members of the National Assembly is like an accused being mounted on the dock in a court of law and being questioned. With respect, this is completely illegal, offends the concept of separation of power. It amounts to an intimidation of the executive and an attempt to subordinate the executive under the powers of the legislature.

The rather dangerous thing about the summon is that it’s channelled towards discussing the issue of security publicly. Worldwide, the issue of security is a classified set of discussion not meant for public consumption. In international politics, one nation’s hero is another nation’s murderer. General Soleimani of Iran was regarded as a hero in Iran but was publicly executed by the US as a killer. According to Trump, Soleimani was killed to stop a war not to start one. Summoning a President Trump to publicly appear before the US Congress to explain or entertain questions from the members of the Congress of different parties on the death of Soleimani may compromise some classified information and expose some undercover agents which may compromise their security. Even in a court of law that has a duty to try offenders publicly as a matter of their fundamental human right admits the exception of allowing an offender to be tried privately when an issue of public security is concerned in order to ensure that security information are not inadvertently divulged to the world. The invitation therefore by the National Assembly to the President to discuss publicly the issue of security is with respect inappropriate.

The Presidency was also part of the drama. When the members of the National Assembly met  the President to invite/summon him, he accepted to attend and even fixed a date, only to renege. The President ought to have sought the advice of his lawyers before agreeing to attend. The Attorney General of the Federation ought to have been proactive in advising against the acceptance of the invitation by the President and saved his boss from the national embarrassment of reneging on his promise to attend. We are now in 2021, we are expecting less shadows and more substance, less theatrics and more realities.