…Says President Buhari Cannot Carry Out Operational Use of Armed Forces Without NASS

…President Has Inherently Discretionary Right to Appear Before NASS, Not at its Behest…AGF

Human Rights Lawyer, Mr Mike Ezekhome has strongly disagreed with the stance of the Attorney General and Minister of Justice, Mr Abubakar Malami (SAN), that the National Assembly (NASS) is not constitutionally competent to summon President Muhammadu Buhari over his “operational use of the Armed Forces,” contending that, “Under sections 217, 218 and 219 of the 1999 Constitution, the President cannot carry out the “operational use of the Armed Forces” without the NASS concurring or empowering him to do so.”

This is coming in the wake of the summon by the House of Representatives for the President to appear before it to explain reasons for the continued insurgency in the North East region of the country, where the terrorist group, Boko Haram killed 43 farmers in a gruesome manner in Zabarmari village in Jere Local Government Area of Borno State penultimate Saturday.

Ezekhome, also a Senior Advocate of Nigeria (SAN), in his viewpoint column in the Vanguard newspaper, argues that, “it is only the NASS that has the powers to make laws regulating how the President as Commander-in-Chief of the Armed Forces, carry out the operational use of the Armed Forces. The President can never do so alone.

“So, Mr. President is subject to the scrutiny of the NASS as to why the strategies so far employed by Mr. President to combat insecurity have abysmally failed Nigeria; and why he has continued to retain Service Chiefs, whose tenure of office has since expired, and who have since outlived their usefulness, efficiency and effectiveness.”

National Security

Malami had maintained that national security is not about publicity and the nation’s security architecture therefore cannot be exposed for the sake of getting publicity.

He said Mr. President has enjoyed constitutional privileges attached to the Office of the President including “exclusivity and confidentiality investiture in security operational matters, which remains sacrosanct.”

Malami added that the National Assembly has no constitutional power to envisage or contemplate a situation where the President would be summoned by the National Assembly on operational use of the Armed Forces, stressing that the right of the President to engage the National Assembly and appear before it is inherently discretionary in the President and not at the behest of the National Assembly.

“The management and control of the security sector is exclusively vested in the President by Section 218 (1) of the Constitution as the Commander in Chief of the Armed Forces including the power to determine the operational use of the Armed Forces.

“An invitation that seeks to put the operational use of the Armed Forces to a public interrogation is indeed taking the constitutional rights of law making beyond bounds.

“As the Commander in Chief, the President has exclusivity on security and has confidentiality over security. These powers and rights he does not share. So, by summoning the President on National Security Operational Matters, the House of Representatives operated outside constitutional bounds. President’s exclusivity of constitutional confidentiality investiture within the context of the constitution remains sacrosanct,” the AG insists.

Tremendous Success

Explaining that President Buhari has recorded tremendous success in containing the hitherto incessant bombing, colossal killings, wanton destruction of lives and property that bedeviled the country before attaining the helm of affairs of the country in 2015, Malami posits that “the confidentiality of strategies employed by the President as the commander in Chief of the Armed Forces of the Federal Republic of Nigeria is not open for public exposure in view of security implications in probable undermining of the war against terror.”

But in his piece titled, “National Assembly is constitutionally competent to summon President Buhari,” published on Friday, Ezekhome expressed his disgust at Malami’s views on the constitutional powers of the President.

“I have just read, with angst and trepidation, a statement credited to the Attorney General of the Federation and Minister of Justice, AGF, Mr. Abubakar Malami, SAN, to the effect that the National Assembly, NASS, has no power to summon the President over his “operational use of the Armed Forces”.

“I am more disturbed with the AGF’s stance because the President has already voluntarily agreed to appear before the NASS. Under sections 217, 218 and 219 of the 1999 Constitution, the President cannot carry out the “operational use of the Armed Forces” without the NASS concurring or empowering him to do so.

“In fact, under section 219(b), the composition of the Armed Forces of the Federation must reflect the Federal Character of Nigeria, and it is only the NASS that has the powers to make laws regulating how the President as Commander-in-Chief of the Armed Forces, carry out the operational use of the Armed Forces. The President can never do so alone. So, Mr. President is subject to the scrutiny of the NASS as to why the strategies so far employed by Mr. President to combat insecurity have abysmally failed Nigeria; and why he has continued to retain Service Chiefs, whose tenure of office has since expired, and who have since outlived their usefulness, efficiency and effectiveness,” he posits..

Insecurity Situation

The popular human rights lawyer is of the view that, “There is nothing secret or confidential about the Nigerian security situation, as the AGF wants us to believe. The AGF must be living in another utopian world, not the same world of reality, where the entire Governors of the North East, and the entire Northern establishment and elite, including the Sultan of Sokoto, the ACF and the NEF, who have all decried the terrible insecurity situation in the North. Indeed, the Sultan said, without contradiction, that the North is the most hazardous and perilous place to live in Nigeria today. So, where is the AGF getting his information about reclaiming of over 14 local government areas allegedly previously controlled by the Boko Haram from? Is there anybody in Nigeria today, including even the toddlers, who do not know that the entire security architecture and apparatchik of Nigeria is over 98 per cent controlled and located in one section and one religion of this pluralistic, multi-ethic, multi-religious and multi-linguistic country called Nigeria?

“I, therefore, whole heartedly and most vehemently disagree with the said statement credited to the AGF, to the effect that the National Assembly is not constitutionally competent to invite Mr. President to come and address it on national security issues. That piece of advice is wrong, wrong and wrong. I am amazed that the presidential aides and spokespersons to Mr. President, such as Minister of Information, Mr. Lai Mohammed, the AGF, Mr. Femi Adesina and Mr. Garuba Shehu, do not give Mr. President the right and correct advice as to how to move the nation forward. They constantly engage in sophistry, inanities and ineffective liberal disquisition, which do not in any way help to re-engineer the national weal; what the late K. O. Mbadiwe, would refer to as “national resurgimento”.

Ezekhome says, the “President Muhammadu Buhari must realise that history will judge him for good or for bad; not his Attorney General or spokespersons. What Nigerians will remember in the future will be “the Buhari Administration”, not the Abubakar Malami, Lai Mohammed, Femi Adesina, or Garuba Shehu administration. This is because, as former American President, Harry Truman, once put it, “the Buck stops here”.

Historical Excursion

Leaning on historical excursion, he reacalls that, “The Nigerian presidential system of government is modelled after the American Presidential system of government. And since 1776, when America became independent from the British Empire, and up to April 30, 1789, when George Washington stood on the balcony of Federal Hall on Wall Street in New York, and took the oath of office as the President of the USA, every American President has always given an annual “State of the Union Address”.

“And this is actually prescribed in the American Constitution, in Article 2, section 3, clause 1. Although such a specific provision is not found in the Nigerian Constitution, it is, however, clear that under section 4 of the 1999 Constitution, it is the National Assembly that is vested with the constitutional powers to “make laws for the peace, order and good government of the Federation, or any part thereof with respect to any matter included in the Exclusive legislative list…..”.

“It, therefore, means that the President can only execute laws made by the National Assembly, by virtue of section 5 of the same Constitution, either by himself directly, or through the Vice President, Ministers or Officers of the Public Service of the Federation. Similarly, under section 81(1), the President is expected, every financial year, to prepare and physically lay before the National Assembly, estimates of the revenues and expenditure of the Federation for the next financial year. This is commonly called the National Budget.

Joint Sitting

“In such a situation, the Red and Green Chambers of the NASS, meet together at a joint sitting, which is presided over by the Senate President, and in his absence, the Speaker of the House of Representatives, under section 53(2) of the 1999 Constitution. Can anyone, including the AGF, rightly argue that the NASS cannot constitutionally, not only invite, but also command, the President to, appear before it? I think not.

Furthermore, he argues, “by virtue of section 88(1) of the 1999 Constitution, the National Assembly has the powers, by resolution published in its journal, or in the Official Gazette of the Federation, to direct or cause to be directed, investigation into any matter that it has powers to make laws on, as such matters include the conduct of affairs of any person, authority, ministry or government department, which is in charge of executing or administering Laws enacted by the NASS, and also disbursing or administering monies appropriated or to be appropriated by the Executive under sections 80, 81, 82, 83, 84, and 162 of the 1999 Constitution.

“And these powers of the NASS are exercisable to “correct any defects in existing laws”, and to “expose corruption, inefficiency or waste in the execution of laws made by the NASS”, and in the disbursement of funds appropriated by it. “Any person” stated in section 88(1)(b) above, of course includes President Muhammadu Buhari himself. No more, no less.

Moral & Ethical

The senior advocate opined that the AGF should never advise Mr. President not to appear before the NASS because “It is not only moral and ethical to do so; it is also legally and constitutionally mandatory for Buhari to honour NASS summons.”

“President Buhari should go and face the NASS and answer questions why his government has failed Nigerians so abysmally. Buhari should not be protected. He should not be masqueraded. He should not be screened. He should face Nigerians, eye-ball-to-eye-ball, and account for his stewardship of nearly six years. It is not only a duty to do so; it is also an obligation he owes the Nigerian people. And this is constitutional. This is also moral. This is also ethical. This is also decent,” Ezekhome counsels.

Recall that the President consented to appear before the House as revealed by Speaker Femi Gbajabiamila and was scheduled to appear at a joint sitting of the Senate and the House of Representatives on Thursday, according to a tweet by one of his aides, Ms Lauretta Onoche, but he did not appear at the plenary of the House yesterday.

Senate Distances Itself

The Senate has however distanced itself from the invitation extended to President Buhari by the House of Representatives.

Distancing itself from the controversy, the Senate, through the Chairman, Committee on Media and Public Affairs, Senator Ajibola Basiru (Osun Central), said the upper chamber has nothing to do with the invitation.

“I’m a spokesperson of the Senate. There was no resolution of the Senate that the President should come and address it on the issue of national security.

“I expect that every enquiry as to the summoning and coming of the President should be directed to the House of Representatives.

“We operate a bi-camera legislature. That’s why our rules and procedures are different and that is why also we need concurrence from the two Houses on passing of legislation.

“On this matter, there has not been an issue of a joint resolution. What you have is resolution of the House of Representatives.

“And I believe, the House of Representatives should be able to tell you why the resolution was passed, and what will happen to that resolution.

“As far as the Senate is concerned, we have not summoned the President and we don’t want to get ourselves involved in any controversy as to whether the President will appear or not.

“To the best of my knowledge I’m not aware of any planned joint session of the National Assembly tomorrow (today),” he said.

Also, the Deputy Senate President, Ovie Omo-Agege kicked is miffed on the resolution to summon the head of another arm of government to appear before it.

Omo-Agege said: “I am a constitutionalist. I believe that we are operating a presidential system of government. I believe in the concept of the separation of power. We have three equal arms of government.

“The framers of our constitution did not envisage that one branch of an arm of government will be summoning the head of another co-equal arm of government to come and offer explanation on the floor.

“I think those of you who are familiar with the constitutional process, I don’t think you’ve ever heard that the US parliament had ever invited their President to appear before the House of Representatives or the Senate, unless for the purpose of budget or to give an address on the state of the nation.

“In any event, we also have the concept of executive privilege. The executive arm of government has the power to claim executive privilege at any time any of such invitation is extended.

“It is not envisaged by the framers of the Constitution that a day will come where the President of the Federal Republic of Nigeria, who heads the executive arm, would be asked to come and testify in the House of Representatives or the Senate. I do not also support that. I don’t believe that the President should come.”