To What Extent Should The National Assembly Exercise Its Investigative Functions Under Section 88 of The Constitution of the Federal Republic of Nigeria, 1999 (As Amended)?
It is not in doubt that the pivot of the legislative arm of government in any federalism is to make laws for the peace, order and good governance of the country.
In Nigeria, this power is conferred on the National Assembly by virtue of section 4 of the Constitution of the Federal Republic of Nigeria, 1999 as amended (hereinafter referred to as CFRN). The list of items to which the legislature has power to make laws are well enunciated and entrenched in the Second Schedule to the Constitution and the items in that list are so enormous.
Nevertheless, apart from these powers/functions conferred on the National Assembly by section 4 of the CFRN, it also relishes investigative flavour under section 88 of the same law.
By the provision of the latter section, the National Assembly is bestowed with the power to investigate or cause to investigate into the affairs of any person, authority, ministry or department of government. However, this power is not general as the law provides the extent to which it can be exercised.
For the seek of being apt to the point, I will be furnishing you with the imports of section 88 below;
Subsection (1) paragraph (a) is to the effect that the National Assembly, be it the Senate or the House of Representatives shall have power to investigate or direct to investigate any matter or thing with respect to which it has power to make laws. Paragraph (b) of the same section empowers the House or the Senate to carry out investigation into the conduct of affairs of any person, authority, ministry or department of government charged with or intended to be charged with the duty of executing laws enacted by the National Assembly disbursing moneys appropriated or to be appropriated by the National Assembly.
Subsection (2) gave a stern warning to the effect that the powers conferred to the National Assembly by section 88 shall be for the purpose of enabling it carry out its legislative roles as well as to expose corruption, inefficiency or waste in the execution of laws within its legislative powers and in the disbursement or administration of funds appropriated by it. By extension, section 89 stipulates the procedures for carrying out the investigative functions.
From the above, it can be gleaned that the National Assembly in the exercise of its investigative power is not clothed with such power(s) as to investigate the activities/affairs of any person or seek for disclosure of certain information from any person for
any reason whatsoever SAVE when such investigation or disclosure will help it in its law making function – i.e. it will help it to make new laws or amend the existing laws or even repeal the the laws.
Therefore, going outside these provisions is not only tantamount to breaching the fons et origo of our laws – the constitution but will also lead to an abuse of power. The hallmark of separation of power which allows each arm of government to perform within its jurisdiction and never to work ultra vires will be grossly undermined if the National Assembly should be allowed to probe the affairs or activities of any person beyond the extent to which the Constitution particularly section 88 has provided.
By doing so, the legislature will abruptly metamorphose to a demi-god who will illegally coronate itself the title of executive arm government and at the same time arrogate to itself the powers of the judiciary, judging their own cases and giving judgement in their own favour with an overreaching effect of undermining the principle of nemo judex in causa sua.
The court had in litany of cases given its judicial recognitions and blessings to this all important position of the law and thus, tamed the propensity of the law making arm of the government moving beyond borders.
First of these cases is that of Momoh v Senate of the National Assembly & Ors1. In this case, the Senate of the National Assembly led by Joseph Wayas had in response to Tony Momoh’s Daily Times Publication made on the 4th of February, 1980 which alleged that the legislators have become contractors – an article which the Senate of the Second Republic viewed as detrimental to its reputation summoned the journalist to appear before it to clarify those press comments and as well disclose his source of information. The renowned journalist, Tony Momoh challenged the invitation to court.
In the ruling of the case, the trial court relying on section 88(2)2) held that no power exists under the section for general investigation and that the freedom of expression protects a journalist’s right not to disclose his source of information, as to do otherwise would amount to infringement of such a journalist.
On appeal, the Court of Appeal laid down the general principles guiding the oversight functions of the National Assembly particularly with respect to its Investigative powers/functions. The Court of Appeal held that the press is not a fourth arm of government or a constitutional sanctuary foreclosed for probes concerning inquiries on the legislative domain. Thus, a newspaper publisher has no special immunity and the press can be ordered to disclose his sources in “exceptional cases.”
The appellate court further held that the powers of the National Assembly to investigate are not general but are limited to the executing and administering laws enacted by the National Assembly and in the disbursement of money appropriated by it.
The second case is that of El-Rufai v House of Representatives3), the Court of Appeal in this case held that the provision of section 884 is not designed to enable the legislature usurp the general investigative functions of the executive nor the adjudicative functions of the judiciary rather the section enables it either to exercise the power only with respect to any matter or thing with respect to which it has 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 or administering money appropriated or intended to be appropriated by the National Assembly.
The appellate court held that section 88 does not constitute the National Assembly as an Ombudsman inviting and scrutinizing every member of the public for the purpose of exposing corruption, inefficiency and waste and that subsection (2) limits the power of the National Assembly.
The Court of Appeal went further to state that it is not enough that the matter for investigation is within the legislative competence of the House, a proper and lawful investigation must have been constituted.
Lastly, the extent to which the National Assembly should carry out its investigative functions/powers was keenly captured in the foreign case of Walkins v US5). In this case, the learned Law Lord held that the power of the congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the congress to remedy them.
But, broad as this power of inquiry is, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress nor is the Congress a law enforcement or trial agency. No inquiry is an end in itself; it must be related to, and in furtherance of a legitimate task of the congress. Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.
Conclusion
Stemming from the provisions of the Constitution and judicial decisions, it is my submission that summons on persons, authorities, departments or agencies of government by the National Assembly should not be propelled by emotions and sentiments neither should it be for the purpose of making itself a judge deciding the activities of any person (s), agencies, etc. they think did not go down well with it; rather it’s summons should be within the bounds and confines of section 88 of the CFRN, 1999 (as amended). No matter the extent to which the National Assembly may think that person(s) in question has disparaged it, it is obliged to stick to what the law says.
Image Credit: nabro.gov.ng
About Author
Ega Chinedu Bright is a final year student in the Faculty of Law Ebonyi State University Abakaliki. He is a proud member of the Ebsu Law Clinic; a clinical legal education organ in the University’s Faculty.
He’s is currently the Principal Partner, Platinum Chambers, one of frontier and homegrown Chamber’s in the University’s Faculty of Law. Ega Chinedu Bright is a research enthusiast and a legal writer. Being a law student, he has special bias in Commercial Law, Corporate Law and Constitutional Law.
