By Emeka Duru
Nigeria’s foremost constitutional lawyer and Senior Advocate of Nigeria, Professor Ben Nwabueze, has faulted the move by the two chambers of the National Assembly to summon President Muhammadu Buhari over the state of the nation.
The Senate, on Thursday, concurred with the House of Representatives when it summoned President Buhari to appear before a joint session of the National Assembly to address it on the spate of killings in the country.
The Senate resolution was as a result of the outpouring of emotions at the latest killings in Benue State by suspected Fulani herdsmen.
Senate President, Bukola Saraki, who presided at the session, said the Senate leadership would meet with its House counterpart to fix an appropriate date and time for the President to appear and intimate the National Assembly on the security challenges in the country, even as a minute silence was observed by the red chamber in honour of the dead Thursday.
The summons followed a motion moved by Senator George Akume (APC, Benue North-West), in reaction to the killings.
But Professor Nwabueze on Friday poured cold water on the legality of the summons, arguing that the National Assembly does not have the power to summon the president.
Though he contended that “President Buhari by his actions and utterances, may have brought humiliation and degradation to himself as President,” he nevertheless cautioned that “he remains our Head of State, and should be treated as such, and accorded all the pomp and dignity appertaining to the office.”
In a letter to the National Assembly leadership, the legal luminary said while it is “true that section 89(1)(c) of the Constitution empowers the Senate or the House of Representatives to “summon any person in Nigeria, the President is not covered within the meaning of the term “any person” under the section because “he is also the “Head of State” so proclaimed by section 130(2). The term “any person” must therefore be viewed within the context of the concept of the State and the concept of Head of State.”
He however commended the National Assembly for checkmating what he called the “incipient dictatorship of President Buhari.”
Below is the full text of the letter to National Assembly leaders:
I commend you for the courage of the role you play in checkmating the incipient dictatorship of President Buhari. It is, to me, simply unpardonable that he should pay out of the Consolidated Revenue Fund of the Federation the sum of U.S. four hundred and ninety six million dollars ($496,000,000) for the purchase of military aircraft without the authorization of the National Assembly as specifically required by section 80 of the Constitution “in the expectation”, as he puts it in his letter, “that the National Assembly would have no objection”.
Yet summoning him to appear before the National Assembly to address it on the state of the nation and to answer questions in explanation of his actions raises questions as to whether the National Assembly has the power to so summon him, and whether it is proper for it to do so. The word “summon” is defined by the dictionary as a “command or order by authority to appear”.
It is true that section 89(1)(c) of the Constitution empowers the Senate or the House of Representatives to “summon any person in Nigeria” but the President is not covered within the meaning of the term “any person” under the section because he is also the “Head of State” so proclaimed by section 130(2). The term “any person” must therefore be viewed within the context of the concept of the State and the concept of Head of State. These are very complex concepts which I have tried to explain in one of my books. I quote from it as follows:
“The next development in the concept of a state was its linkage to the idea of sovereignty, a process of thought which was progressively developed to a point where the state itself was proclaimed sovereign. This is not unintelligible. Legal sovereignty is an attribute of government, and since the state is government transmuted into a corporation, the sovereignty associated with government must inure to the state.
Important implications flow from the conception of the state as a distinct corporate entity separate from the organs of government. It creates the necessity for someone to represent it or even to personify and embody it, although the idea of someone personifying and embodying the state is unnecessary and subversive of the concept. Secondly, invested, as it is, with perpetuity, the state does not derive its existence from the constitution of the government; it is independent of it, with the result that the destruction of the constitution and of the organs of government established by it leaves the state unaffected, but this is disputed in some quarters.[1] As the repository of the title and ceremonies of the sovereignty associated with government, the state has invested in it the symbolic authority and majesty that go with them.
The separateness of the state from government is underlined not only by the greater authority and majesty inhering in it (the state) but also by the fact that the headship of the state is a position distinct and different from that of head of government, and carries with it a certain inherent authority and dignity not possessed by the head of government. He embodies the majesty and authority of the state and , as some say, he incarnates the state, i.e. he is the state – a rather extravagant assertion.
The position of head of state has been aptly described by Oppenheim as follows:
‘As a State is an abstraction from the fact that a multitude of individuals live in a country under a sovereign government, every State must have a Head as its highest organ which represents it within and without its borders, in the totality of its relations….. The Head of a State as its chief organ and representative in the totality of its international relations, acts for his State in its international intercourse, with the consequence that all his legally relevant international acts are considered to be acts of his State.’[2]
The separateness of the state from the government has tended in practice to be blurred by the union of the two offices of head of state and head of government in the same person in most countries, and, in countries where they are not so united, by the virtual reduction of the head of state to a figurehead, implying that only the government, but not the state, has an effective, significant existence. This should not be so. A head of state is a position that implies more than a figurehead. It is a position that ought conceptually and logically to be, and function as, a moderating agency, as “a balance sheet to the constitution intervening when the political authorities or forces seem to be out of alignment with one another.”[3]
The concept of a head of state as a moderating agency is perhaps best effectuated by the provision in the Constitution of the French Fifth Republic (1958) and the Constitution of Romania (1991) under which the President of the Republic, as Head of State, is invested with power to “secure respect for the Constitution,” to “secure, by his arbitration, the regular functioning of the governing authorities as well as the continuity of the state,” and to serve as “guarantor of national independence and territorial integrity.”[4] To this end, he is to take all such actions as may be required for dealing with a grave and immediate danger threatening the integrity of the state or its institutions and authority.[5]
Besides, section 89 of the Constitution specifically provides that the power of the National Assembly to “summon any person in Nigeria” is “subject to all just exceptions”. The exemption of the Head of State from the power is surely one of the “just exceptions”. Whilst President Buhari by his actions and utterances, may have brought humiliation and degradation to himself as President, he remains our Head of State, and should be treated as such, and accorded all the pomp and dignity appertaining to the office. He is entitled to appear before the National Assembly whenever he chooses to do so in order to deliver a state of the nation address, but whenever he goes to the National Assembly for this purpose he does so in state.
Professor Ben Nwabueze
Lagos,
27th April, 2017
