By Sam Amadi
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 National Intelligence Agency (NIA), Ambassador Ayo Oke over 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, “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 the statutory responsibilities of the Nigeria 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 Services (DSS) and the attorney general of the federation.
These officers of Mr. President do not have constitutional or statutory responsibilities to investigate allegations of corrupt practices and violations of the due process of law. Even the attorney general of the federation (a constitutionally recognised office) has no responsibility to investigate violations of law or corrupt practices.
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 or 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 an internal affair 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 the findings of facts, with regard to the liability of the two officers. Furthermore, the responsibility of the committee, with respect to 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.
In 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 the commission of an offence or corrupt practice, as with 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 authorise 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, created 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 of NIA to the ICPC and the EFCC, respectively, for investigation and other consequential actions.
Amadi is a lecturer in law at Baze University, Abuja
