Much has already been said on the power of the National Assembly to invite or summon President Buhari and weather has heavily been made on the immunity clause entrenched in section 308 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to show that Buhari is not bound to honour the NASS Invitation.
Therefore, the points below may be relevant in clarifying some constitutional issues and whether there is need for the prolonged argument in the first place.
Section 88 And 89 of the constitution empower the National Assembly to Investigate “ANY PERSON, AUTHORITY,” and to summon “ANY PERSON IN NIGERIA”. Is President Buhari a person and or authority in Nigeria? Yes he is.
What is the scope of section 308 regarding summons and arrests? It applies only to arrests or summons relating to COURT PROCEEDINGS.
Is National Assembly a court? No it is not a court.
What are the status of the provisions of sections 88, 89 and 308 of the Constitution? Provisions of sections 88 and 89 are specific while provision of section 308 is general.
Between a specific provision and general provision in the same constitution, which one overrides the other? Specific provision overrides general provision. See the case of Inakoju v. Adeleke (2007) 1 S.C. (Pt. 1) 1 where the position was confirmed by the Supreme Court of Nigeria thus:
“Where the Constitution or a statute contains a general provision as well as a specific provision, the specific provision will prevail over he general provision. In the instant case, the specific provision of section 188(9) of the 1999 Constitution will prevail over the general provision of section 102.”
See also CAC V. Davis (2006) LPELR-11411(CA) where it was held that the reason is because
“the specific provision will be deemed to have anticipated the issue as against the general provision. Thus in the instant case, even if the argument of the learned counsel for the appellant could be described as a case of two sets of provisions in an enactment, one special and the other general covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision”
The implication is that the power of the NASS to summon “ANY PERSON IN NIGERIA” including President Buhari is superior to the immunity provisions of section 308 of the constitution.
Are the powers in sections 88 and 89 of the constitution exceptions to the immunity clause in section 308 just like election petitions? Yes they are exceptions and in fact another perfect way of looking at it. In A.D v. Fayose (No 1) (2004) 26 WRN 34 court declared that Fayose could be subpoenaed (ordered to come to court to give evidence) notwithstanding immunity under section 308 of the Constitution.
Can NASS rely on section 88 and 89 to invite or summon Mr. President on security? Yes they can because sections 217, 218, 219 and 220 of the Constitution empower them to make law regulating how the President may exercise powers as Commander in Chief of the Nigerian Armed Forces.
Some people argued that section 67(1) of the constitution says President “MAY” attend meeting of the NASS while 67(2) says Minister “SHALL” attend. Does that mean that the word “may” was used to make it discretionary for president to honour invitation by NASS?
With profound respect it is misconceived argument. Section 67(1) did not say that President “MAY” attend on INVITATION by NASS. Rather it made the visit to be initiated by the president. It is that of Minister that the constitution clearly says minister shall attend “if invited”. In other words, unlike section 67(2) of the constitution, section 67(1) did not say president may attend “if invited” but it says he may visit if it is of national importance.
Therefore, section 67 is completely irrelevant in discussing the power of NASS to invite President Buhari
Does section 308 of the Constitution prohibit president from being accountable to the citizens? No it does not. He owe them a duty to give explanation on security State of the nation.
Is the argument on the power of NASS to summon or invite President Buhari necessary? It is not. Such argument is capable of distracting people from asking president to secure his citizens.
Should the argument continue? No. People should contrate on putting pressure on Buhari to fulfill the mandate given to him, i.e security and welfare of people should be on his priority list.
About the Author
O. G. Chukkol, ACIArb (UK) is a Final Year Student, Faculty of Law, ABU, Zaria
[email protected] or 08032470318
December 13, 2020