Osinbajo Committee is unconstitutional and should be disbanded

On Wednesday, April 19, 2017 the Special Adviser on Media to the President issued a press statement announcing the suspension from office of the Secretary to the Government of the Federation, Mr. David Babachir Lawal and the Director of the Nigerian Intelligence Agency (NIA), Ambassador Ayo Oke on allegations of corrupt practices. The press statement reports that, “President Muhammadu Buhari has ordered an investigation into the allegations of violations of law and due process (emphasis is mine) made against the Secretary to the Government of the Federation, SGF, David Lawal, in the award of contracts under the Presidential Initiative on the North East, PINE”.

The statement further states that “the President has ordered a full scale investigation into the discovery of large amounts of foreign and local currencies by the Economic and Financial Crimes Commission, EFCC, in a residential apartment at Osborne Towers, Ikoyi, Lagos, over which the National Intelligence Agency (NIA) has made a claim. The investigation is also to enquire into the circumstances in which the NIA came into possession of the funds, how and by whose or which authority the funds were made available to the NIA, and to establish whether or not there has been a breach of the law or security procedure in obtaining custody and use of the funds”. According to the statement the President has set up a “A three-person committee comprising the Attorney-General of the Federation, the National Security Adviser, and headed by the Vice President, is to conduct both investigations”.

The setting up of a special committee chaired by the Vice President to investigate these allegations is an impermissible usurpation of the constitutional and statutory responsibilities of properly designated agencies and therefore a violation of the constitution. By setting up the committee, the President has taken away statutory responsibility of the Nigerian Police Force, the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practice Commission (ICPC) and illegally conferred it on his Vice President, the Director of Department of State Security (DSS) and the Attorney General of the Federation. These officers of Mr. President do not have constitutional or statutory responsibility to investigate allegations of corrupt practice and violation of due process of law. Even the Attorney General of the Federation (a constitutionally recognized office) has no responsibility to investigate violations of law or corrupt practices.

The Nature and Extent of Power of the President

The President ostensibly set up the Osinbajo Committee pursuant to his executive power. By Section 5 of the constitution the executive power of the federation is vested on the president who may exercise such powers directly or indirectly through his Vice President, Ministers or other public officers. This power is for “execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, powers to make laws”. Under the design of the constitution the various branches of government share power in a manner that guarantees the freedom and liberty of the citizens and the continuation of the Federal Republic of Nigeria. Although the power of the president, as the embodiment of the executive branch, is enormous and plenary, it is limited to the extent that it is ‘subject to the provisions of the Constitution” and “the provisions of any law made by the National Assembly”. Therefore, the exercise of presidential power under the constitution is only valid if it is based on the express provisions of the constitution or any law made by the National Assembly. Any exercise of the executive power of the president that violates the constitution or a provision of any law made by the National Assembly is invalid and unconstitutional by virtue of Section 1 (1) of the constitution. (See A.G. Abia State v. A.G. of the Federation (2006) 16 NWLR (Pt. 1005) 265 and P.D.P. v. C.P.C (2011) 17 NWLR (Pt. 1277) 485)

With respect to the President’s exercise of executive power the views of the United States Supreme Courts in Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952) that, “The President power to issue the order, if any, must stem either from an act of Congress or from the Constitution”, applies with force of logic to Nigerian president. The Nigerian President cannot act outside the clear provisions of the constitution or the Act of the National Assembly and clearly, not in violation of the Constitution or Act of the National Assembly. Although the Constitution commands the President to execute and maintain the constitution and all laws made by the National Assembly, it does not authorize the president to exercise the power to investigate a crime or offence or grant any of his officers or any other person the power to investigate such offences or crimes apart from those agencies that the constitution or the Act of the National Assembly has granted such powers, and in the manner the constitution or the Act of the National Assembly has granted it.

Section 214 of the Constitution establishes the Nigerian Police Force. Pursuant to the constitution the National Assembly provides for the function of the Nigerian Police Force in Section 7 of the Nigerian Police Act, which includes responsibility for enforcement of law. Furthermore, Section 6(b) of the Economic and Financial Crimes Commission Act grants the EFCC the statutory responsibility to investigate all financial crimes in the country. In the same vein, Section 6 of the Independent Corrupt Practices Commission (ICPC) Act empowers the ICPC to investigate allegations of corrupt practices and prosecute offenders. By these laws, the National Assembly has provided for how the power of the executive branch to investigate and enforce violation of law and commission of crime will be exercised. It is the EFCC that should investigate financial offences against any person or authority in Nigeria. If it is allegation of corrupt practices the Independent Corrupt Commission (ICPC) has the responsibility to investigate and prosecute.

The legislative intent of vesting the responsibility to investigate and prosecute offences and corrupt practices on agencies rather than leave it for the President is to protect the liberty and freedom of citizens and promote independence and objectivity required for the enforcement of law. By these Acts, the National Assembly has transferred the executive power to investigate offences and corrupt practices on these agencies and the President cannot take these power back except through an Act of the National Assembly. These laws therefore has subjected the executive power of the President to constitutional limitation and it cannot be exercised any other manner howsoever.

It is important to understand the contexts of these events in order to understand the unconstitutionality of the investigation committee. For months there has been allegations of breach of due process in award of contracts against the Secretary to the Government of the Federation. The Senate, in pursuance of its oversight function under Section 88 of the Constitution, reviewed documents and concluded that the SGF acted corruptly and abused its powers in the respect of contracts awarded for the Presidential Initiative on North East. The Senate recommended to the President through a formal resolution to sack the SGF. The Senate has also refused to confirm presidential nominees until the President acts on the resolution. In response to this situation, the President asked the Attorney General of the Federation to investigate the allegations. The Attorney General after investigation reportedly submitted a report to the President whereupon the President wrote to the Senate clearing the SGF of any wrongdoing on the issue. The Senate rejects the letter and insists that the SGF should be removed for corruption.

The issue for which the Director of NIA is being investigated by the presidential committee is in respect of an ongoing operation by the Economic and Financial Crimes Commission. In that operation the EFCC discovered millions of dollars presumed to have been unlawfully taken from public treasury. The Director of NIA claimed that the money, kept in a safe vault in a private residence, is for NIA’s covert operation. The presidential committee is now investigating him for possible “breach of law or security procedure”. Investigation of crimes is part of law enforcement responsibility of the Nigerian Police Force, the EFCC and the ICPC. Law enforcement proceedings begin with investigation of the allegations. The issues involved are not mere administrative infractions that require internal administrative inquiry to establish. These are allegations of crimes in the public domain where another branch of government (the legislature) and a statutory agency (the EFCC) have commenced actions and are now being either frustrated or stalled by this presidential intervention.

It is important to note that where the National Assembly has acted to assign a task on an agency- even an executive agency, the President cannot dictate how the task is to be performed (Bowsher v. Synar 478 U.S. 714 (1986). That will be an invalid aggrandizement of presidential power and a breach of the principle of separation of power implicit in the constitutional design. As a matter of fact, it is not just that the President cannot take over the task conferred by law on the police and the EFCC but he cannot validly even dictate the substance of the exercise of such task in the guise of exercising of his executive power.

The president may argue that the Osinbajo Committee is an internal matter of the presidency. The president surely can exercise his executive power howsoever he wishes provided he does not violate the constitution or breach the law. By the wordings of Section 5 of the Constitution the President can exercise executive power by himself or through his Vice President, Ministers. But he cannot directly exercise a power that has been vested on an agency by the constitution (as in the case of the police) or by an Act of the National Assembly (as in the case of the EFCC and the ICPC). It is clear that by the guideline rolled out by the Osinbajo committee that it is not a case of internal affairs of the presidency. The Committee will take evidence from the SGF and the Director of NIA and other relevant officers and the public. The Committee will make findings of facts as regard the liability of the two officers. Furthermore, the responsibility of the committee in respect of the SGF is “investigations into the allegation of violation of law and due process”. The nature of the investigation raises the bar of the proceedings to criminal proceedings and in line with the Supreme Court’s decision in Garba v. University of Maiduguri, the proceedings of the committee are beyond the powers of an internal administrative committee.

There is no doubt that the President retains the power to hire and fire members of the executive branch of government. In the case of the SGF and the Director of the NIA, their continuance in office is at the pleasure of the president. The concept of a unitary and effective executive branch, the constitution empowers the President to remove an office if the President no longer trusts his or her judgment, especially if such officer is tainted with allegation of corruption. The President can exercise this power at any time.

But where an officer of the President has been accused of commission of an offence or corrupt practice as the case of the two officers, only the Police, the EFCC and the ICPC have constitutional and statutory powers to investigate the allegations. Already the EFCC is engaged with the investigation of the NIA case and the National Assembly has already indicted the SGF. The best the President can do in these circumstances it to authorize the EFCC and the ICPC to investigate the allegations in line with their statutory responsibilities. By setting up the Osinbajo Committee, the President has, perhaps unwittingly, preempted the ICPC and EFCC, create a situation of fait accompli and violated his responsibility to ensure “execution and maintenance of the law”. The President’s action in establishing a committee unknown to law to investigate allegations of corruption and violation against his officers is a violation of the constitution. Any action or proceeding by the committee in respect of these allegations violates the constitution

For the interest of protecting the constitution and not violating the separation of power in the constitution, the President should disband the Osinbajo Committee and refer the allegations against the SGF and the DG NIA to the ICPC and the EFCC respectively for investigation and other consequential actions.

Dr.  Amadi, (LL.B, (Calabar), B.L; LLM, MPA, SJD (Harvard)), is senior lecturer in law, Baze University, Abuja