Published on May 29, 2012
The public hearing conducted by a committee of the House of Representatives on March 14, 2012 during which specific charges of corruption were made by the Director-General of the Security Exchange Commission, Ms. Aruma Oteh, against the chairman of the committee, Mr. Herman Hembe, raises fundamental questions about Nigeria’s system of government. According to the media report, “As part of its Oversight Functions, the House [of Representatives] Committee on Capital Market and Institutions set out last week to probe the manifest cause of [the] near collapse of the capital market” two years ago. The Nation March 20, 2012 (p. 1)
The report went on to state that Mr. Hembe had “.. .. told Ms. Oteh ‘you are not fit to regulate the sector.’ He accused Ms. Oteh of profligacy, telling her that she had ‘been spending money as if it is going out of fashion since assuming office one year ago’.
.. ..‘You stayed in a hotel for eight months and spent over N30 million. In one day you spent N85000 on food at the hotel. The other day you spent N850000 on food. These are the things we should look at to see how you will regulate a market that is collapsing” The Nation, March 21, 2012 (p. 2)
Completely taken by surprise, Ms. Oteh could not put up a defence on the spot. She was able to say, however:
‘Mr. Chairman, I question your credibility to preside over this probe. On 20th October last year, you were given a cheque to travel to the Dominican Republic to attend a conference. . . . yet you did not attend the conference.
This decision carries a lot of significance for our society and development. Firstly, there are numerous arguments as to why applying the death penalty carries risks. It is well established that there have been numerous cases of executions of innocent people. Unlike imprisonment, the death penalty is irreversible and irreparable. In addition, there is no evidence that the death penalty deters crime. Perhaps most importantly, it can be argued that the death penalty is incompatible with human rights and human dignity. The death penalty violates the right to life, which is the most basic of all human rights. This may explain why there has been a global decline in the use of the death penalty (657 executions in 2019 compared to 993 in 2017). This is why our government strongly believed that it was right and necessary to sign the Second Optional Protocol.
Can you tell Nigerians that you returned the money when you did not travel? . .. .. In asking SEC to contribute N39 million for this public hearing, don’t you think that you are undermining your capacity to carry out your duties?’ ”
She also accused Mr. Hembe of asking for N5 million for himself. Ms. Oteh was reported to have gone further to say:
She also accused Mr. Hembe of asking for N5 million for himself. Ms. Oteh was reported to have gone further to say:
‘This has been a Kangaroo court. Not even in Idi Amin’s Uganda did we have this type of public hearing. .. . . … …. I do not think that it is appropriate for you to have gathered information from the SEC and without even asking us to verify that information, to respond to that issue, you already made the judg ment that you made; we are trying to build a democracy [in Nigeria]. . .. .
I will like to say to the Nigerian people that I do not think that I am given a fair hearing.’
While bribery and corruption could seriously undermine any system of government, they are not as fundamental in the damage they can do to a system of government as the breach of the principle of separation of powers or as a disregard for fair hearing.
Both of these defects in Nigeria’s present system of government have come out glaringly in this episode had Mr. Hembe followed the requisite judicial requirement to give an accused person prior notice of the charges he is going to face at his trial, he would have found, as Ms. Oteh’s subsequent defence showed, that Ms. Oteh had plausible explanations for the allegations Mr. Hembe was making against her. However, the most important point at issue here is not whether Mr. Hembe’s accusations against Ms. Oteh are true or whether the truth lies on Ms. Oteh’s side.
The fundamental issues are that Mr. Hembe’s committee of the Legislature breached the principle of separation of powers by conducting judicial or quasi-jusicial proceedings and, in doing so, seriously violated the most fundamental rule of fair hearing. Mr.
Hembe obtained information from the SEC without giving that body or Ms. Oteh the opportunity of commenting on it before using it to arrive at his judgment. He did not let Ms. Oteh know in advance the charge or charges she was coming to meet during his committee’s investigation.
The time-honoured procedure for the conduct of judicial or quasi-judicial proceedings has long been well established by the courts in all the common law countries, including Nigeria. That procedure requires that any person against whom any allegation is made, or whose interest may be adversely affected by such allegation, or by any statement made, must be clearly and fully informed of such allegations or statements in advance of any trial or investigation involving him.
Before an accused person is required to make his defence or counter any statements adversely affecting him or his interest, the following requirements must be complied with: First, he must be given the details of all allegations or statements made against him; he must be told who made those accusations or adverse statements against him; then he must be afforded reasonable time and opportunity to prepare his defence effectively to all the matters at issue; finally, he must be able to confront and challenge his accuser or accusers at his trial or during any investigation. These requirements apply in all situations and to all proceedings involving any form of trial or investigation no matter who conducts the trial or carries out the investigation and for whatever purpose. [See Kanda vs The Government of the Federation of Malaya (1962) A C 322, 337.]
Based on the above principles, the Nigerian courts would not hesitate to condemn as ‘a procedure completely unknown to law’ the manner in which Mr. Hembe’s committee interrogated Ms. Oteh. Not only had Ms. Oteh not been informed of the charges against her in advance of the hearing, she had not been told the source or sources of the allegations leveled against her.
From the media reports, it came out clearly that Mr. Hembe was both the accuser, the prosecutor and the judge during the probe. The obviously flawed approach adopted by the House of Representatives’ committee in its conduct of the quasi-judicial proceedings makes it clear why, under the principle of separation of powers, judicial functions are assigned to the Judiciary in the Constitution.
Does the National Assembly, or either of its two chambers, have the constitutional power to conduct the kind of investigation into the Security Exchange Commission that the House of Representatives’ committee embarked upon? And even if the House has that constitutional competence, did it follow the procedure laid down in the Constitution? The answers to both of these questions are in the negative. Nevertheless, Nigerian legislators claim and exercise such powers. In 2007, the President of the Senate, Senator David Mark and Nigeria’s most powerful legislator to date, told his fellow Senators:
“.. .. it is our responsibility to review the circumstances of the recent list of indicted persons by the EFCC to ensure that the power exercised by the EFCC was not … contrary to the provisions of the EFCC Act. We need to inquire why some persons whom EFCC had charged to court for corrupt practices were not disqualified from elective office while persons [members of the Senate] not yet charged are now faced with disqualification.” The Nation, Feb 21, 2007 (p.47).
Surely, it should be the function of the Judiciary, and not that of the Senate, to determine whether or not the EFCC has acted outside the law that set it up.
The legislature has continually extended its exercise of these powers into all areas of governance. For example, the Senate committee on Aviation recently imposed fines on some foreign airlines allegedly for charging Nigerian travelers discriminatory air fares. A newspaper reported that after a public hearing conducted by the Senate Committee on Aviation: “British Airways, Virgin Atlantic, Air France, Emirate, and eight other airlines were allegedly found culpable in the payment demand (sic) by the Senate Committee on Aviation that investigated the matter… . . Apart from tax evasion, the airlines were also accused of arbitrary fixing of fares and colluding with dubious aviation officials to shortchange Nigerian air travelers. ..”
The Senate committee ordered the airlines to refund N230 billion to the Nigerian Civil Aviation Authority (NCAA). “The Hope Uzodinma-led Aviation Committee mandated the airlines to make the refund or risk necessary sanction. The committee also directed NCAA to review the British Airways Service Agreement (BASA) with British Airways. The committee is said to be angry with the foreign airlines and may summon them for another round of talks this week.” (Radio Nigeria)
Another committee of the Senate ordered the National Drug Law Enforcement Agency to withdraw its 2000 newly employed operatives of the Authority for alleged lack of training in the use of arms.
On May 11, 2012, The Nation (p.6) reported that “Senate slashes cost of [vehicle] number plates and drivers’ licences”. On May 16, 2012, Radio Nigeria reported that the Senate had ordered the Inspector-General of Police to arrest the managing director of Industrial and General Insurance Company and bring him to the Senate “in hand-cuffs” for failing to meet some claims made on the company by a number of government parastals.
The Nation of May 17, 2012 (p.. 17) reported that in reaction to a planned House of Representatives’ “investigation and tax audit of about 180 companies,” the chairman of the Nigerian Association of Chambers of Commerce Industry and Agriculture [NACCIMA], Dr. Ademola Ajayi, condemned the move as “unconstitutional,’ saying that industrialists were disturbed by the move and had gone to court to challenge it..
Are these proper functions of a legislative house? The principle of separation of powers is the most fundament element in the jigsaw of a modern system of democratic government. Under the Nigerian Constitution, the Legislature is not given the power to carry out what the Legislators now call “Oversight Functions” which often involves both the performance of judicial and executive functions.
With respect to any kind of investigations which the Legislature may consider necessary, the Constitution gives the National Assembly only the power “to direct or cause to be directed”, that such inquiry should be carried out. The provision is contained in section 88 of the Constitution for the National Assembly and section 128 for State Houses of Assembly.
Section 88 of the Constitution provides as follows:
“(1) Subject to the provisions of this Constitution, each House of the National Assembly shall have power by resolution published in its journal or in the Official Gazette of the Government of the Federation to direct or cause to be directed an investigation into –
a. any matter or thing with respect to which it has power to make laws; and
b. 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
i. laws enacted by the National Assembly; ii. disbursing or administering moneys appropriated or to be appropriated by the National Assembly.
(2) The powers conferred on the National Assembly under the provisions of this section are exercisable only for the purpose of enabling it to – a. make laws with respect to any matter within its legislative competence and correct any defect in existing laws; and
(b) expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.”
It is clear from the above that the powers granted to the National Assembly under the Constitution are “to direct or cause to be directed an investigation into .. ..” the various matters enumerated in subsection (1) of section 88 and that they “are exercisable only for the purpose of enabling” the Legislature (a) to make laws with respect to certain specified matters and (b) to expose corruption, inefficiency and waste. The power is required to be exercised “by resolution published in its journal or in the Official Gazette of the Government of the Federation”.
An episode in the Enugu State House of Assembly in February 2008 illustrates the manner in which the power is meant to be exercised in accordance with the above provison of the Constitution. According to the newspaper report, the House set up a committee to probe the former Governor of the State, Chimaroke Nnamani “following a request from the Association of Local Governments of Nigeria [ALGON] which demanded an audit of the accounts of the [State’s Local Government] councils between 1999 and 2007 when Nnamani was in power.” The committee, having done its job, its chairman, Johnny Obidinma, informed the House “that the findings of the committee indicated that there was substance in the allegations by ALGON that local government council funds were mismanaged and diverted by the previous government” and that “the accounts of the councils had not been audited for a long time, which left them open for (sic) mismanagement.”
In its report to the House, the committee “recommended that a judicial panel should be set up by the State Government to conduct full-fledged investigations into how the council funds were misapplied.” Upon receiving the report of the committee, the Speaker of the House declared that “it was the duty of the Assembly to ensure accountability and transparency in the use of public funds and directed that the State Government should study the findings of the committee and take the necessary action.” The Punch, February 20, 2008.
The above example shows that the particular Legislature understood that its power under the Constitution was only “to direct or cause to be directed” an investigation by the Executive arm of government into the alleged mismanagement of public funds. Upon receiving the resolution of the House of Assembly, it then became the constitutional duty of the Governor to set up a judicial panel of inquiry into the matter. Such a panel, being judicial or quasi-judicial in nature, has to be given clear terms of reference, stating clearly the various issues to be examined and reported upon.
All persons and organisations likely to be affected by any allegations or statements made available to the panel, and all persons who may be affected by the outcome or recommendations of the inquiry must be informed of such allegations and statements in advance of the investigation. This would enable such persons to put their points of view to the panel fairly and effectively. Any departure from this procedure would be a perversion of justice. Most of the time, such perversion of justice has been the outcome of so-called “oversight functions” carried out by legislative arm of government in Nigeria.
In the purported performance of these functions, committees of both the Senate and the House of Representatives constantly summon officials of the Federal Government (who are not ministers) and employees of government parastatals to the National Assembly, reviewing and supervising their routine work. They even go to private companies to carry out “oversight functions” or summon the directors of private companies such as foreign airlines to appear before them. Under the Constitution, the Legislature is only empowered to summon “a minister of the Government of the Federation .. . .to explain to the House the conduct of his Ministry and in particular when the affairs of that Ministry are under discussion” [Section 4(2)]. The Legislature has no power under the Constitution to summon any official who is not a minister to the House.
Apart from the fact that these oversight functions seriously disrupt the work of the officials being visited or summoned to the House, they and the numerous public hearings now in vogue also involve the expenditure of huge amounts of public funds. Besides, in conducting their visitations, the legislators often ignore, as shown above, the basic requirements of fair hearing.
The performance of “oversight functions” seems to be very popular with the Legislators. There are now no fewer than 84 committees in the House of Representatives while the Senate has at least 57 committees carrying on these investigations. Each committee in either House consists of many members with each Senator or Member of the House of Representatives belonging to several committees at the same time. The legislative work of the National Assembly is adversely affected by these non-legislative functions, resulting in the enactment of poorly drafted legislation. An example is the extremely poorly drafted Electoral Act 2006 [See my article on this topic in The Punch of December 31, 2007 at p61, which the newspaper entitled Why Electoral Reform Committee Must Amend Electoral Act 2006].
Even if legislators do not make the kind of improper demands, or receive improper gratifications, such as those alleged by Ms. Oteh (and it is commonly believed that they do), the cost of this approach to governance is prohibitive. The Legislators make sure that the necessary funds for their oversight functions are provided for in the Budget. After a six-month struggle with the National Assembly in the 2000 financial year, the then President Olusegun Obasanjo was able to bring down the National Assembly’s budgetary demand for running its affairs from around N28 billion to N14.9 billion. The Budget was not passed until June that year.
The following year, the National Assembly quietly accepted the same figure of N14.9 billion and passed the budget in January. Then came the National Assembly’s impeachment process to remove Obasanjo from office in 2002. He narrowly escaped being removed from office as President. That episode showed who is more powerful under the Nigerian political system: The President or the Legislature? Thereafter, the budgetary allocation for the National Assembly for running it affairs has sky-rocketed, reaching N116 billion in 2008. The Legislature now has such control over the Executive that it will secure almost any amount of budgetary allocation it demands.
Democratic government in Nigeria is now seriously undermined by the Legislature’s usurpation of both executive and judicial functions. Even if such omnibus powers were to be granted to the legislative arm of government by the Constitution, it would, nonetheless, be highly damaging to the country’s system of government.
The damaging effect of the Legislature’s totalitarian approach to governance is made worse by the very high level of corruption prevailing in the country; the political leaders’ rampant manipulation of the process of selecting candidates for elections and the fact that the chairmen and councilors of local government councils are appointed by the Governors in no less than two-thirds of the States of the Federation in flagrant violation of section 7(1) of the Constitution which provides as follows:
”(1) the system of local government by democratically elected local government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall subject to section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils.”
For as long as the above factors remain unaddressed, and are allowed to continue to work in combination to undermine the Nigerian system of government, political stability and socio-economic development in Nigeria will be difficult to secure or maintain.
Hon Justice O. Oluwadare Aguda (rtd) formerly Judge of Ondo State High Court Chairman, Ondo State Law Commission (2001 – 2005) is a consultant in Nigerian Law. He is the author of Understanding the Constitution of Nigeria 1999 Lagos: MIJ (Professional Publishers) 2000.