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On Malami’s doctrine of exclusion

On Malami’s doctrine of exclusion
Minister of Justice and Attorney General of the Federation, Abubakar Malami

By Obi Nwakanma

The President is the Commander-in-chief of the Armed Forces and Chief Executive of the administration of the Federal Government of Nigeria.

This is elementary knowledge. In much the same way, it is elementary knowledge that the National Assembly is the law-making body of the Federation of Nigeria.

Because the nation is established putatively on laws, the office of the president derives its power and the force of its authority by the Act of the National Assembly. That power is equally subject to review by the very source that grants it being. That is why in a republic, the Legislature as a collective body, takes priority over executive power.

In the constitution of the republic, the first power that is established is the power of the parliament, which if fully expressed is the authority of the land – spiritual and material. Judicial authority radiates between the two powers as the final arbiter of the law of the nation. It basically interprets and establishes the mind of the constitution from which each of these institutions derives its power. It is an elegant balance of power. Properly deployed, it guarantees enlightened government.

In general of course, the constitution establishes the principle of the “separation of powers.” It guarantees the autonomy and equality of the three institutions that make up the Federal government: the legislative, the executive, and the judicial powers of the state. There is a fourth power: the press – which is Hermetic, because it is at once master and servant of these three powers that constitute the state, as it is also the messenger of the people whom these powers are established to serve, the citizens of the nation.

It is thus incumbent on the press to provide guidance to the Attorney-General and Minister of Justice in this administration, Mr. Abubakar Malami. In recent days,  AG Malami has trussed up, and once again, conflated the principles of the separation of powers. In a memo issued to the press, Malami declared that the National Assembly – the legislative arm of the state cannot summon the president to appear before it.

I’d like to point him to what legal theorists describe as the “Jurisprudence of Values;” particularly “Radbruch’s Formula” – which is the fount of this doctrine. Every sophomore student of Law is aware – or let us just say – ought to be aware of this theory of law. Although its general principle asserts a claim against legal positivism, Gustave Radbruch’s relativist approach affirmed what now seems to be a given; the idea that statutory law is, “nothing other than the given fact, which has the sense to serve the idea of law.”

In this particular instance, although there is separation of powers, and the president’s power as Chief executive of the Administration of state grants him reasonable power and certain exceptional privileges under the same constitution, the given fact is that the National Assembly, the legislative body established by the constitution of Nigeria, has the power to invite or summon the president to appear before it on matters relating to National security. Malami says, no, the National Assembly cannot.

But under the oversight guideline, the National Assembly is given this precise power. As a matter of fact, Section 11 (1) (2) and (3) of the Nigerian constitution spells out the emergency powers of the National Assembly in a situation of war and national insecurity. And Nigeria is clearly in that situation currently. But even weightier is the power established under its oversight functions in section 88 of the Nigerian constitution; particularly in 88 (2c) which empowers the National Assembly to: “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.”

Pursuant to this, the Nigerian constitution grants the National Assembly in Section 8, article 1 (c) the 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.” The foregoing is clear.

The National Assembly has the power to “SUMMON ANY PERSON” in the pursuit of its constitutionally guaranteed power to investigate any aspect of the operations of government within its purview. The president is no exception. And here is why: the power of the president strictly speaking is to “execute” the laws made by the National Assembly. There is no other power granted him above this.

The frame of the National Security policy is the product of an Act of the National Assembly. That is simply to say, even though the president exclusively deploys the operations, all matters concerning Nigeria’s national security operations is the responsibility of the National Assembly which not only funds it, but also establishes its operational laws.

Even the system of classifications that provide or limits access to National security operational protocols must be reported, should the National Assembly demand it, “subject to all just exceptions.” In the normal operations of government, the President and his National Security Administration, must by law share every intelligence detail with the Senate and House of Representative Committees on National Security and the Armed and Intelligence Services.

Members of this committee, who are in charge of the oversight of these aspects of government, ordinarily should receive the daily intelligence briefings available to the president, as should the members of the National Assembly in special circumstances under oath, and within the doctrine of “just exception.”

This is the intention of the designers of the constitution. It guarantees the safety of the republic. Yes, indeed, the National Assembly has all the powers of law to invite, summon, and even in the extraordinary occasion that the president defies it, use the power established in section 89 (1 d) to issue a warrant to compel his attendance. In other words, the National Assembly has two powers that it can exercise over the president; one is the power of compulsion, and the other is the power of impeachment.

This shreds any idea of exclusion that Malami might have about the power of the president. The president of Nigeria has wide powers. But the National Assembly has even wider authority. It has the power of the purse, and it has the power of oversight. Under that power of oversight, it can leverage its ability to compel, or impeach the president, and secure the republic from arbitrary and corrupt power.

President Buhari did accept to appear before the National Assembly which invited him to explain (a) the security situation in the North, and in Nigeria in general, and (b) possibly account for all the monies spent with poor results on Nigeria’s National Defence given the increasingly volatile national security situation. The Defence budget is the largest single item consistently on the national budget. Larger than health. Larger than Education. Larger by a disgraceful lot than Science and Technology.

Coupled with this, the president has a “dark hole budget” called “Security vote,” which is never accounted for. It is never under any scrutiny by the office of the Auditor-General.  This is of course wrong. No country has that kind of system of “dark money” granted to its executive office without account and oversight. It is a dangerous accommodation, and it gives official stamp on state corruption. And it needs to end.

Yet, this president has no answer to the problem of insecurity in Nigeria which has caused enormous public outrage and fear. And the Attorney-General says he is covered by some abstract, and sham doctrine of exclusion from appearing before the National Assembly to address and possibly answer questions from the National Assembly. Perhaps it needs be reiterated, the president of Nigeria is not a king.

The President is an elected official, and I hope I have shown that the constitution demands even from he who occupies the highest executive office of the land, to be subject to the law of the land; that the constitution is clear that he can be summoned before the highest legislative body of the land, the National Assembly, made up of equally elected representatives of the peoples of Nigeria, to answer questions pertaining to the operations of his office as President of Nigeria. These operations come rightly, and squarely, under the purview of the National Assembly.

Those his advisers who are shielding him against appearing before the National Assembly; who now argue that the president cannot be “threatened” or “pressured” to act in the national interest are wrong; the President will continue to be pressured until he acts or is removed by due process. The Attorney General, Malami, is wrong, because the constitution of Nigeria does not grant the president any exclusions from appearing before the National Assembly.

The constitution is unambiguous: the National Assembly can invite or summon ANY PERSON IN NIGERIA. The president is not excepted. It is incumbent thus on the National Assembly to protect the republic of which it is its highest symbol and power, from executive rascality. To permit this doctrine of exclusion advanced by the Attorney-General, will amount to a degrading of the power of the National Assembly.

It will render its ability to function in the protection of this republic facile. It would amount to leasing its power to the presidency which will act with the arbitrary power thus appropriated to the detriment of those these legislators represent – the people of Nigeria.

The National Assembly must compel the president therefore to appear before it, and if he fails, begin the process of his impeachment. In any case, what is the president scared about? What power or secret is he protecting in not addressing and answering questions from the elected body of the representatives of Nigerian people?

Vanguard News Nigeria

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