Illegality Of Osinbajo Panel-A Rejoinder To Sam Amadi By Fred Emeka

Since he was fired as the head of the Nigerian Electricity Regulatory Commission by President Muhammadu Buhari Dr. Sam Amadi has never seen anything good in the Buhari administration. Before now, he has been supporting corrupt people and other criminal elements who are on trial. That should not surprise the Nigerian people since he served in the most corrupt government in the history of Africa. But out of sheer mischief,  he has decided to twist the law by challenging the powers of President Buhari to set a panel of inquiry. Although it is common knowledge that every head of government has since 1960, set up panels of inquiry to investigate the conduct of public officers, civil disturbances, electoral violence and human rights abuse it has now suddenly become illegal and unconstitutional in the wild imagination of Dr. Amadi.


In his write-up, Dr. Sam Amadi decided to question the legality of the power of President Mohammadu Buhari to set up a Special Investigation Panel headed by the Vice President to inquire into the Ikoyigate and the allegations that the suspended Secretary to the Government of the Federation, Mr. David Lawal failed to execute contracts awarded to his company. In a desperate bid to mislead the Nigerian people Dr. Amadi cited the case of Garba v University of Maiduguri (1986) 2 2 NWLR (Pt 18) 559 to back up his submissions. But contrary to Amadi's submission the case is not an authority for questioning the powers of the President to institute a panel of enquiry. In that case the  Supreme Court decided that the report of a board of enquiry cannot be a basis to punish students who committed criminal offences.

It is worrisome that Dr. Amadi pretends that he is not aware that the powers of the President to set up a panel of inquiry was challenged in the celebrated case of Doherty v Balewa (1963$ 2 SCNLR 166 during the first republic. Even under the current political dispensation the matter was again contested in the case of Fawehinmi v. Babangida(2003) 3 NWLR (PT 808) 604 at 655 where the Supreme Court held that the power of the President to set a commission of enquiry under the Tribunal a Commission of Enquiry Act is limited to the Federal Capital Territory. It was also held by the apex court that an investigation panel set up by the President without an appropriate legislation backing it, would have no inquisitional powers, but could  be set up by ordinary ministerial act to seek and receive information from anyone willing to offer it.

In this case on hand, the Osinbajo panel was instituted by the President and is sitting in Abuja in the Federal Capital Territory. It can therefore be said to have been set up by the President under the Tribunal of Enquiry Act. Alternatively, it can also be said to have been set up under a ministerial act to receive information from appropriate government officials within the terms of reference of the panel.

Since the law is very clear on the constitutionality of the 3-man panel of enquiry chaired by Vice President Yemi Osinbajo the article of Dr. Amadi on the matter was written out of pure malice.

Incidentally, Professor Yemi Osinbajo SAN as Attorney-General of Lagos state took part in the case of Bamaiyi v The Attorney-General of the Federation (2000) 6 NWLR (PT 601) 421 at 461. In that case the appellants had argued like Dr. Amadi that only the Inspector-General of Police could investigate a criminal case in Nigeria and that the Attorney--General of the Federation lacked the power to set up a Special Investigation Panel to investigation the unlawful killing of innocent citizens under the Sani Abacha military regime. In dismissing  the frivolous objection the Supreme Court held:

"As everybody knows, the first duty of every government, be it democratic, Military or otherwise, is the maintenance of public order and protection of the lives and properties of its citizenry. In this connection I think the Attorney-General of the Federation has inherent powers to liaise constantly not only with the President of the Federation but also with the Inspector-General of Police, and give discretions on how to nip possible or incipient hostilities in the bud, and possibly bring offenders to book. Even the learned Counsel for the Applicant conceded in his oral argument that the SIP or its concept was not a new thing, and that the Military Governments were using it…

In view of the wide powers of the Honourable Attorney-General of the Federation contained not only under Ss. 174 and 150(1) of the 1999 Constitution, but also under Common Law and inherent powers, I am of the respected view that the Honourable Attorney-General of the Federation has power to set up an SIP if he needed one.

It is trite law that what a judicial or administrative commission of inquiry set up by the President or governor of a state cannot do is to try criminal offences. In Military Governor of Imo State v. Nwauwa (1997) 2 NWLR (PT 490) 675 the Appellant set up a Commission of Inquiry which investigated and found the Respondent guilty of the misappropriation of sundry public funds.  In setting aside the findings of the Panel on the criminal allegation the Supreme Court held:

 “It seems to me that what the State Government should have done was to refer the criminal allegations of misappropriation of sundry public funds to the Nigeria Police for investigation and prosecution if necessary but not to vest the panel with any authority to deal with the same.”

It is not too difficult to appreciate Dr. Amadi's inconsistency in his latest intervention. For instance, he has not questioned the powers of the President to set up the  Electoral Reform Panel headed by former Senate President Ken Nnamani. But since Senator Nnamani is Dr. Amadi's former boss the panel is very legal notwithstanding that it was set up by to investigate electoral malfeasance and make appropriate recommendations to President Buhari. Since the Osinbajo panel is a fact finding panel and make appropriate recommendations it cannot be said to have usurped the powers of the police or the anti graft agencies.