Executive Affront on Legislative Rights

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Bolaji Adebiyi

It was sometime in June 1999. The business of the Senate was just shaping up and the various party caucuses were announcing the names of their principal officers. There were three dominant parties then: the Peoples Democratic Party, the All Peoples Party and the Alliance for Democracy. There was no problem until it came to the turn of the APP to real out the names of their officers. Senator Florence Ita-Giwa rose up under a point of order directing the attention of the President of the Senate, Evan Enwerem, to a court order, restraining the Senate from considering any list of principal officers from the APP. A quarrel had arisen in the opposition party over the matter and some members had gone to court to obtain a restraining order.

Kanu Agabi, learned silk and also PDP senator representing Cross River Central, raised another point of order and asked Enwerem if, under the 1999 Constitution, an arm of government can restrain another arm of government from performing its own duties or regulate its own procedure? Responding, Enwerem asked Agabi to elucidate his query. Agabi then said, “Can the judiciary, which is an arm of the Federal Government of Nigeria, validly ask the legislature, another arm of the government, not to perform its duties or regulate its own affairs?” The learned silk answered the question in the negative, citing the principles of separation of powers established by the constitution and the Legislative Houses (Powers and Privileges) Act 1990 that immunises a legislator against legal processes and proceedings for acts done in the exercise of their legislative duties. He, therefore, asked the Senate to disregard the restraining order as an intrusion by the judiciary into the affairs of the legislature, which is tantamount to an abuse of its rights and privileges.

Enwerem, also a senior lawyer, agreed with Agabi but advised caution, saying the legislature should not right one wrong with another wrong. “Let’s obey the order not because we are wrong, but because we must show maturity, particularly because we have a remedy,” the President of the Senate ruled.

It was the turn of the executive arm of government to borrow this principle in 2009. President Umaru Yar’Adua had travelled abroad on medical leave. He had left behind a letter to be forwarded to the National Assembly in compliance with section 145 of the 1999 Constitution to enable the Vice President act. But the letter was not delivered. The Senate complained about the obvious slight and violation of the Constitution. But given the power politics in the Presidential Villa no one could explain that a powerful special adviser had decided to not to transmit the presidential communication.

Asked by the Channels TV to explain the seeming breach of the Constitution, the Special Assistant to the President (Politics), Bolaji Adebiyi, argued that while it was not the practise of the Presidency to take issues with the legislature, the opinion of the Senate on the interpretation of S 145 of the Constitution did not bind the executive arm of the government and was, therefore, not bound to accept it. In any case, he argued, that the President had the discretion on whether or not to activate the said section. In his appraisal of the standoff, Sam Amadi, a Harvard trained lawyer, agreed with Adebiyi, saying the principle of separation of powers allowed each arm of government to regulate themselves and hug their powers donated by the Constitution exclusively. In extreme legal jurisprudence, he said, it had been argued that any of the other two arms might even resist the ruling of the judiciary, which stands as an arbiter between the executive and the legislature on the one hand, and the government and the people on the other hand.

So there has always been tension over the implementation of the principle of separation of powers among the executive, the legislature and the judiciary, with each of the arms jealously guarding its own jurisdiction. In the past there was maturity and understanding as every arm applied the brakes at the slightest resistance from the aggressed arm. The judiciary in particular has been careful with the exercise of its power of arbitration and has always urged restraint from interference in the internal affairs of one arm by another. Several times it has ruled against executive exercise of legislative powers and vice versa. The obvious reason for this is the need to preserve the essence of democracy, which emphasises rule under the law, without which good governance is imperilled.

In the last 12 months the executive under the watch of President Muhammadu Buhari has been extremely intrusive, recklessly interfering in the internal affairs of the legislature and refusing to obey valid order of courts directing it to release citizens incarcerated by its secret police and other security agencies.

After losing the leadership tussle in the legislature last year, it has refused to let up, harassing the winners with the coercive machineries of state entrusted to its care by the Constitution. First, the President would not grant audience to the President of the Senate Bukola Saraki and Speaker Yakubu Dogara. And when necessity forced him to so do, he has been antagonistic to them, refusing to understand his acts are capable of undermining the legislature, which is the symbol of democracy.

When the Buhari administration is not blackmailing the legislature, accusing them of padding the budget, he is harassing them with criminal prosecution of alleged misdemeanour that it has being having extreme difficulties in proving in court. In the last 10 months it has put Saraki on trial for alleged breach of the code of conduct for public officers. Ordinarily there is nothing wrong with that for if a public officer infringes on the law he should have his day in court. But events at the Code of Conduct Tribunal of Mr. Danladi Umar has given little to cheer that justice would be dispensed as the chairman appears bent on summarily convicting Saraki.

At the inception of the trial, Saraki alleged that he was before the tribunal because he became the President of the Senate against the wishes of the powers that be. And that his trial was to force a leadership change in the upper chamber of the National Assembly. As the trial progressed the conduct of the tribunal chairman tended to buttress the Senate president’s accusation that the whole thing was more political than any attempt to fight official misdemeanour.

Umar’s exuberance to convict Saraki led the chairman to warn the accused’s lawyers in open court that their delay tactics would not reduce the consequences that would be meted out to their client at the end of the trial. That might have been a Freudian slip but Saraki has picked that up as the most singular evidence that he would not get justice. He is fighting that at the tribunal. Whatever the outcome of that preliminary request for Umar to recuse himself, it would end up at the higher courts. Sound lawyers say with that type of statement coming from an adjudicator, no higher court minded to do justice would not ask him to step down.

Perhaps sensing that its first plan to supplant the Senate leadership was crumbling, the Buhari administration last week brought out its plan B, preferring a two-count criminal charge against Saraki, his deputy, Ike Ekweremadu, and two others. The charges filed by the Attorney-General and Minister of Justice, Abubakar Malami, accused the Senate leadership of forging the Standing Rules of the Senate used for its election of 9 June, 2015. Although Saraki has approached the courts again to quash the charge, it has sparked off an executive-legislative row with the National Assembly rising up to the obvious executive excesses of the Buhari administration.

Both the Senate and the House of Representatives have at separate plenaries dismissed the charges as a provocative attempt to intimidate the legislature and enforce, in the upper chamber, a leadership change that would pander to the dictates of the executive. They said it was an intolerable blatant interference in the internal affairs of the legislature and pledged to resist it. They are right.

The preferment of charges against Saraki and Ekweremadu over alleged acts purportedly committed in the exercise of their legislative functions is a clear violation of the Legislative Houses (Powers and Privileges) Act 1990 which immunises a legislator from any legal proceedings for any action he takes in the conduct of his legislative duties. So, assuming but not conceding that they forged the rules, the law says they cannot be prosecuted. That is law. But we know that the preferment of charges arose from politics. Again it was the obstinacy of the Buhari administration that has led it to this sorry pass of persistent belligerence.

The issue of alleged forgery of the Senate rules was part of the strategic plan of Buhari’s Unity Forum senators to pull down the Saraki leadership. When the matter came up at plenary, they were defeated by the Saraki forces. By the rules of the Senate, that ought to be the end of the matter. But the Unity Forum senators decided to externalise the issue, reporting to the police as well as taking a civil suit. Justice Ademola Adeniyi who heard the case preserved the right granted the legislature under the Constitution to regulate its own procedure and told the disgruntled senators that the court would not interfere in the internal affairs of the legislature.

It is curious that in spite of this ruling of the court which was not appealed, the executive has now decided to activate an alleged recommendation of one of its organs, the police, which investigated the matter and submitted its report to the Office of the Attorney General and Minister of Justice a year ago. If anyone doubts the suspicion that the action is actuated by a desire to embarrass the Senate leadership rather than law enforcement, that doubt should be cleared by the fact that Malami, the AG, was a lawyer to the disgruntled Unity Forum senators. This actually is also an abuse of office.

As the legal fireworks begins on Monday it is necessary to warn that the growing intolerance of dissent by the Buhari administration and its meddlesomeness in the affairs of the legislature as well as its penchants for abuse of citizens’ rights under the guise of fighting corruption are tendencies towards dictatorship. Many social critics have actually warned that dictatorship is possible even in a democratic setting and that it is necessary for citizens to be vigilant.

We think more and more Nigerians are waking up to this emerging dictatorial tendencies of the Buhari administration. And it would appear that the President and his minders are taking the calm and reflective approach of Nigerians to his regime’s systematic decimation of their social and economic wellbeing for granted. The people who have in the past wrestled military dictators to the ground should not be underestimated by an emerging democratic dictator!