Sagay, a former Dean of the Faculty of Law, University of Benin and Obafemi Awolowo University, Ile-Ife, urged the Senate to shelve any plans to invite him, saying he would be forced to take legal action if the upper legislative chamber did not back down.
The Senate had, last week, proposed to invite Sagay over the comments he made during an interview with The PUNCH in which he described senators as childish and irresponsible for refusing to screen 27 Resident Electoral Commissioners because President Muhammadu Buhari had failed to sack the acting Chairman of the Economic and Financial Crimes Commission, Mr. Ibrahim Magu.
The Senate described Sagay’s comments as condemnable and subsequently referred the matter to the Committee on Ethics and Privileges for further action.
However, in a letter titled ‘Re: Resolution summoning me to appear before the Senate’ and addressed to the Senate President, Sagay maintained that the Senate lacked the authority to summon him.
The senior advocate said he has the right to freedom of expression and any attempt by the Senate to summon him would be an infringement of his rights.
The letter read in part, “My attention has been drawn to the well publicised resolution of the Senate, summoning me to appear before it to justify my criticism of the illegal call on President Muhammadu Buhari to sack Mr. Ibrahim Magu, the acting Chairman of the EFCC.
“My criticism was anchored on Section 171(1) of the Constitution, which has empowered the President to appoint any person to hold or act in the office of the head of any extra-ministerial department of the Federal Government.
“Although I have not been served with any summons from the Senate, I deem it fit to take issue with members of the Senate over the threatened violation of my fundamental right to freedom of expression guaranteed by Section 39 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Article 9 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9) Laws of the Federation of Nigeria, 2004.”
He said Section 88 of the 1999 Constitution only empowers the National Assembly to summon persons while conducting investigation into the affairs of the Federal Government with a view to promoting good governance and curbing corruption or while making laws.
“However, the power to conduct enquiries is not at large. Thus, by virtue of Section 88 (1) & (2) of the 1999 Constitution the National Assembly shall have power to direct or cause to be directed investigation into the conduct of any person, authority, ministry or agency of the Federal Government subject to the provisions of the constitution,” Sagay said.
The PACAC chairman cited three cases that had been settled in court as regards the power of the National Assembly to summon people.
He noted that Section 82 of the 1979 Constitution is in “pari materia with section 88 of the 1999 Constitution”.
While citing Mallam Nasir El-Rufai vs The House of Representatives, National Assembly of the Federal Republic of Nigeria & Ors. (2003) 46 WRN 70, Sagay noted that the Court of Appeal subjected Section 88 of the 1999 Constitution to a critical judicial interpretation.
Sagay recalled that Justice George Oguntade, who was at the time, a Justice of the Court of Appeal, read the lead judgment.
The judgment read in part, “The crucial question that follows is this: when the 1st defendant (House of Representatives) sent the letter of 20/3/2002 to the Plaintiff (el-Rufai) to appear before its Ethics and Privileges Committee, was it engaged in the making of a law within its legislative competence or to expose corruption and inefficiency in a public department?
“Clearly, the answer is in the negative. It is apparent that the 1st plaintiff was intent on taking further steps following its antecedent determination. That this was the intention of the 1st defendant, which is made clear by the opening paragraph of the letter which stated that the plaintiff had published defamatory matters concerning it.”
The senior advocate stated that members of the Senate, who were appalled by his interview in The PUNCH, could sue him for defamation but anything to the contrary would be in breach of the law.
Sagay said, “Applying the principle of law, enunciated in the above cited cases, I am fortified in my submission that the Senate lacks the constitutional power to summon me to justify my condemnation of the illegal actions of its members.
“The Senate cannot be accuser, prosecutor and judge in its own case. However, any aggrieved member of the Senate has the liberty to sue me for defamation in a competent court of jurisdiction.
“Consequently, I urge you to withdraw the resolution summoning me to appear before the Senate. If you fail to accede to my request, I will not hesitate to challenge the legal validity of the summons, once it is served on me.”