Chairman of the Presidential Advisory Committee Against Corruption
(PACAC), Professor Itse Sagay (SAN), has written to the Senate President,
Bukola Saraki, asking that the Senate resolution summoning him to appear before
it be withdrawn.
He further said should the Senate fail to do so, he would challenge the
summons in court once they were served on him.
In the letter dated 3rd April which he personally signed, Sagay said his
criticism of the Senate was founded on Section 171(1) of the Constitution,
which gives power to the President to appoint any person to hold or act in the
office of the head of any extra-ministerial department of the Federal
Government.
He explained that though he was yet to be served with any summons from
the Senate, he was willing to join issues with the red chamber over what he
considers a potential violation of his constitutionally-guaranteed freedom of
expression.
The PACAC Chairman noted that the National Assembly was empowered by
Section 88 (1) and (2) of the Constitution to conduct investigations into the
affairs of the Federal Government, with a view to promoting good governance and
curbing corruption.
He, however, argued that such powers were not limitless.
He contended that the wide-ranging investigative powers of the National
Assembly were circumscribed as they were exercisable subject to other
provisions of the Constitution.
Sagay cited a number of cases to support his position.
“In Innocent Adikwu v. Federal House of Representatives (1982) 3 NCLR 394
at 416, the applicant, a journalist, was summoned by the respondent to disclose
the source of a report published by him. The plaintiff challenged the order of
the defendant,” wrote Mr. Sagay.
“To set aside, the summons served on the applicant, noted Sagay in the
letter, the Lagos High Court examined the limit of the investigative powers of
the respondent under section 82 of the 1979 Constitution.
“The trial judge, Balogun J., Sagay said, held: “…it seems to me that an
investigation directed by the National Assembly to probe into irregularities in
election procedure with a view to amending the Electoral Act cannot be used to
summon a secretary or leader of a registered political party to appear before it
and produce the register of the members of that political party or the list of
all persons who had made contributions to the fund of that political party. Nor
could any person summoned to appear before such committee (whatever its terms
of reference) be asked to state what political party he voted for at the last
general election or any election. Such questions will infringe on fundamental
rights of freedom of idea, speech, and expression. The examples of
non-permissible usage of the legislative power of investigation could be
multiplied to show that the powers of an investigating committee of the
National Assembly or the House of Assembly of a State are not limitless but
must be exercised in conformity with the Constitution.”
He also referred to the case of the Senate vs. John Momoh (1983) at the
Federal Court of Appeal, which held that the Section 82 of the 1979
Constitution was not designed to enable the legislature to usurp the general
investigative functions of the executive nor the adjudicative functions of the
judiciary.
“Section 82 of the 1979 Constitution enables either House to exercise
power only on any matter or thing with respect to which it has the power to
make laws and ‘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’ – ‘executing or administering laws enacted by the National
Assembly’ and ‘disbursing and administering monies appropriated or to be
appropriated by the National Assembly’.
“In other words, the section does not constitute the House as a universal
‘ombudsman’ inviting and scrutinizing the conduct of every member of the public
for purposes of exposing corruption, inefficiency or waste,” the Federal Court
of Appeal held.
On the basis of the cases cited, Sagay said he was convinced that the
Senate lacks the power to summon him to justify his condemnation of the illegal
actions of its members.
The letter reads in part: “As you are no doubt aware, Section 88 of the
Constitution, under which you have purportedly summoned me, is subject to other
provisions of the Constitution, including Section 39 thereof.
“In other words, my freedom of expression cannot be abridged or violated
in the course of exercising the oversight functions of the Senate.
“Senate cannot be the accuser, prosecutor, and judge in its own case.
However, any aggrieved member of the Senate has the liberty to sue me for
defamation in a competent court of jurisdiction.
“Consequently, I urge you to withdraw the resolution summoning me to
appear before the Senate. If you fail to accede to my request I will not
hesitate to challenge the legal validity of the summons, once it is served on
me,” Sagay concluded.
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