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. Continue reading from source