Posted by By Emmanuel Aziken on
PROFESSOR Maurice Iwu, Chairman of the Independent National Electoral Commission (INEC), has spurned the Senate probe of the commission's funds, declaring that the legislature is not in a position to question his use of funds appropriated by it to the commission.
*Says: You can't probe INEC
ABUJA - PROFESSOR Maurice Iwu, Chairman of the Independent National Electoral Commission (INEC), has spurned the Senate probe of the commission's funds, declaring that the legislature is not in a position to question his use of funds appropriated by it to the commission.
In a letter delivered to the Senate Ad-hoc Committee on the disbursement of funds appropriated to INEC yesterday, Prof. Iwu said the Senate should wait for the Auditor-General's yearly report on the organisation.
Prof. Iwu who said he was acting on legal advice received from the commission's lawyers said the constitutional provisions empowering the National Assembly to investigate corruption could only be exercised in the process of law-making. The Senate, according to him, is not in the process of making any law relating to INEC, and consequently, he is not obliged to submit to the body.
He added that he could not respond to the Senate demand for his books on the basis that the books could be requested by some of the tribunals adjudicating petitions arising from the recent elections.
The letter dated May 22, 2007 with reference number INEC/CH/CC/015/V.ll/495 was signed by Prof. Iwu and came ahead of today's public hearing by the Senator Emmanuel Agboti-led ad-hoc committee mandated to investigate the commission's utilisation of funds appropriated to it by the National Assembly.
The investigation arose from the Senate adoption of a motion sponsored by Senator Mukthar Aruwa (ANPP, Kaduna Central) where he alleged that funds appropriated to INEC for the smooth conduct of the elections were not utilised.
The Senate had followed up by appointing an ad-hoc committee comprising the Committees on Appropriation, Public Accounts and INEC to conduct the investigations with Senator Agboti as chairman.
The committee had in a letter to Prof. Iwu on May 21, 2007 requested him to provide the committee with details of expenditure and contracts awarded within his term of office.
Responding to the demand on him, Prof. Iwu said: 'We have referred the Senate Resolution and your request to our solicitors who advise that we are not obliged to accede to your request on the ground that the power of the National Assembly to investigate under section 88 of the Constitution is incidental to legislation and since the resolution, on the face of it, does not indicate that any legislation is contemplated or that you are about to correct any defect in existing legislation, we are not obliged to supply the information now demanded by your committee, as that would unduly compromise the commission whose independence is guaranteed by the constitution.
Section 88 of the 1999 Constitution, which stipulates the powers of the legislature to investigate provides as follows: '88(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 powers 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: (i) executing or administering 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 defects 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.
'If the objective is to expose corruption, inefficiency or waste, that power cannot be exercised unless at the same time the National Assembly is making laws with respect to a matter within its legislative competence or is correcting any defect in existing laws. This is achieved by the use of the conjunctive ‘and' in section 88(2)(a) rather than the disjunctive ‘or'.
'Even when the legislature is conducting an investigation for purposes incidental to legislation, the Committee to be charged with responsibility for such investigation must be properly constituted and its terms of reference well defined," he said as he went on to quote legal opinions in the United States.
'In the light of the above provision; assuming that your objective is to expose corruption, inefficiency or waste, our solicitors advise that the National Assembly can only do so in the course of making laws with respect to any matter within its legislative competence or correcting any defects in existing legislation.
The resolution of the Senate reproduced above does not indicate that the objective of the National Assembly is to make laws relevant to the work of the Commission or correct any defects in the laws governing the commission.
The resolution is also defective in failing to meet another requirement of the constitution. Under section 62(2), the number of members of a committee appointed under the section, their terms of office and quorum shall be fixed by the House appointing it.
'The Legislature derives its authority from the Constitution. Its powers do not reside in the members but only in the Constitution. Those powers do not derive from expediency or discretion and do not depend on urgency or need. Once power has not been expressly vested, it cannot be assumed.
The duty of the National Assembly is to make laws and it has no authority to execute the laws it enacts. The Constitution does not contemplate an active role for the National Assembly in the supervision of officers charged with the execution of the laws it enacts. Once the National Assembly has enacted legislation, its participation ends. Civil or criminal investigation and prosecution is an executive function.
'The Constitution has made adequate provisions for investigation or audit of public accounts and there is no gap to be filled in this regard by the legislature."
Section 85(2) of the Constitution relating to the audit of public accounts provides as follows: 'The public accounts of the Federation and of all offices and courts of the Federation shall be audited and reported on by the Auditor-General who shall submit his reports to the National Assembly; and for that purpose, the Auditor-General or any person authorised by him in that behalf shall have access to all the books, records, returns and other documents relating to those accounts."
'The National Assembly cannot conduct the audit itself. It can only act on the report presented to it by the Auditor-General of the Federation.
The person who is entitled to have access to all the books, records, returns and other documents relating to those accounts is the Auditor-General or any person authorised by him. Under section 85(4), the Auditor-General has power to conduct periodic checks of all government statutory corporations, commissions, authorities, agencies including all persons and bodies established by an Act of the National Assembly.
The Auditor-General is not subject to the authority of the President. This is made clear by section 85(6) which provides as follows: ‘In the exercise of his functions under this constitution, the Auditor-General shall not be subject to the direction or control of any other authority or person.'
'Under Section 85(5), the Auditor-General is required to submit his report to each House of the National Assembly within 90 days of receipt by him of the Accountant-General's financial statement.
Each House shall cause the report so received to be considered by the Committee responsible for Public Accounts. In the light of this, the National Assembly may wish to await the report of the Auditor General.
'Finally, let me add that various election tribunals have made orders concerning our records and we must be able to comply with those orders at short notice. We are also advised that the investigations now ordered by you at a time when the tribunals are examining the elections may undermine the jurisdiction of the courts and may be construed as aiding the cause of some of the litigants," he said.