A Senior Advocate of Nigeria, Chief Sebastine Hon, said on Thursday that the summons issued on the Chairman of the Presidential Advisory Committee Against Corruption, Prof. Itse Sagay (SAN), was unconstitutional.
The Senate had on Wednesday summoned Sagay over his comment in a publication by The PUNCH criticising the Senate for refusing to clear the 27 Residential Electoral Commissioners until the President removed Mr Ibrahim Magu as the Acting Chairman of the Economic and Financial Crimes Commission.
But Hon, an author of legal books, said even though, Sagay’s comments were “not salutary”, they did not merit invitation by the Senate.
He said, “The summons by the Senate to Prof. Itse Sagay, SAN to appear before it over and concerning the learned Professor’s obviously wrong description of Distinguished Senators is unconstitutional. While those comments are not salutary, they do not merit an invitation to appear before the Upper House.
“A similar situation had played out in the 1980s, in the case of Senate of the National Assembly vs. Tony Momoh ((1982) FNLR 307. In this case, Prince Tony Momoh had published in the Daily Times of 4/2/1980 an article the Senate of the Second Republic considered was injurious to its image.
“A Senate Committee then invited Prince Momoh to appear before it to ‘clarify’ those press comments. Prince Momoh challenged the invitation in court.”
He said the Court of Appeal had in its decision in the Tony’s case, laid down the principles for oversight functions by the Senate.
“Even though the Court of Appeal held that Prince Momoh’s action was premature – since the Senate had not taken steps to compel his attendance – it laid down general principles regarding exercise of oversight functions by the National Assembly, thus:
“The powers of the National Assembly to investigate are not general but are limited to the executing or administration of laws enacted by the National Assembly and the disbursement and administering of moneys appropriated by it.
“In other words, the constitutional provisions granting oversight functions do not constitute the National Assembly as a universal ‘Ombudsman’ with power to invite and scrutinise the conduct of every member of the public.
“The powers of the National Assembly in this regard are further circumscribed and limited by subsection (2) of the equivalent of section 88 of the 1999 Constitution – in that the National Assembly can only invite members of the public when it wants to gather facts for the purpose of enabling it to make laws or amend existing laws.
“Since from the resolution, Exhibit A, and the proceedings of the Senate, Exhibit C, the purpose of the invitation was to show resentment for Prince Momoh’s affront in daring to publish a matter against the Distinguished Senators rather than for the stated constitutional purposes, the invitation was not proper.”
He also said the principle was stated in the decisions in Court of Appeal in El Rufai vs. House of Representatives (2003) FWLR (Pt. 173) 162, “wherein the present Governor of Kaduna State, then Director-General of the Bureau for Public Enterprises, BPE, upon being investigated by an ad-hoc committee of the House of Representatives, wrote and circulated certain offensive materials against the House. ”
He also cited Supreme Court’s decision in the case of Attorney-General of Abia State vs. Attorney-General of the Federation (2006) All FWLR (Pt. 338) 604 at 674.
According to Hon, the Supreme Court’s decision had circumscribed “the oversight functions of the National Assembly in the following words:
“Oversight functions can only be exercised within the lawmaking powers of the National Assembly. The functions are not at large and must be exercised within the provisions of the Constitution.”
He said the apex court’s position was in consonance with that of the United States of America’s Supreme Court and the Court of Appeal’s in Watkins vs. United States, 354 U.S. 178, 187 (1957); Townsend vs. United States, 95F 2d 352, 361 (D.C. Cir. 1938); McGrain vs. Dougherty, 716 Ed. 590, etc.
He said, “In conclusion, while I agree that Prof. Sagay’s comments against the Distinguished Senators were inappropriate, I make bold to state that the Senate lacks the constitutional competence to summon him to appear before it merely on account of those comments.
“Let me also add that the Legislature should be cautious in extending summonses to persons under its constitutional oversight functions. If it engages with personalities just because they have made snide comments against it, this will amount to the Legislature reducing its constitutional as an arm of government.
“The legislature qua the National Assembly should as much as possible conduct itself in such a way as not to be seen to be quarrelsome or petty.”