The Senate on Trial

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Perspective

 

The ongoing trial of the Senate is untidy and unhealthy for the nation’s democracy, writes Seun Oluwanifesi
 
Although the ruling All Progressives Congress (APC) won slim majorities in the upper and lower chambers of the National Assembly in the 2015 general elections, many believe that its failure to manage its electoral success is at the heart of the rumpus that has beleaguered the 8th Senate.
While powerful forces within the ruling party favoured Senator Ahmed Lawan (APC, North East) and Senator George Akume (APC, North Central) as Senate President and Deputy Senate President, respectively, divisions within the party saw to the emergence of Senator Bukola Saraki (APC, North Central) and Senator Ike Ekweremadu, (PDP, South East) as the presiding officers of the upper chamber.
To add salt to the humiliation, majority of APC Senators refused the choice of Senator Lawan and others as principal officers of the Senate, but elected their preferred officers in a move, which they said was in defence of the independence of the legislature. Not long after that, the Economic and Financial Crimes Commission (EFCC) invited the wife of the Senate President for questioning, then followed by the arraignment of the Senate President before the Code of Conduct Tribunal over alleged false declaration of assets.
 
 
Enter the Police
It was Senator Kabiru Marafa, who first questioned the authenticity of the Senate Rules 2015 on June 10, 2015, but was ruled out of order by the Senate President. Deputy President of the Senate explained that he had been in the Senate since 2003, and that it had always been the practice for the National Assembly bureaucracy to produce new rules for each coming Senate, which it will then adopt and subsequently amend if need be. He said that no one ‘Rules’ serves two senates.
Following the petition, signed on behalf of the group by Senator Suleiman Othman Hunkuyi (APC, Kaduna), the police swung into action, mandating the Deputy Inspector-General of Police, DIG, in charge of Criminal Intelligence and Investigation Department, Dan’Azumi Doma, to investigate the matter. After about two weeks of “intensive investigations and intelligence gathering,” according the police, they came up with a 13-page report, signed by DIG Doma.
Curiously, however, from the report, it was observed that only pro-SUF group of Senators were interviewed by the Police. Also, only former APC Senators of the 7th Senate or those who had joined the APC from PDP before or after the elections were interviewed.
It was further observed that there was no single PDP Senator that was interviewed by the Police. And contrary to report by a section of the media, no member of the 7th Senate leadership such as Senate President, Senator David Mark; his Deputy, Senator Ike Ekweremadu or the former Senate Leader, Senator Victor Ndoma-Egba were questioned or interviewed by Police.
From the Police report, those interviewed, apart from the management staff of the National Assembly, were Senators Suleiman Hunkuyi, Secretary of the Senate Unity Forum (who signed the petition to the police), Ahmad Lawan, Abdullahi Gumel, Kabiru Marafa, Gbenga Ashafa, Robert Boroffice and Abu Ibrahim. Also questioned were some former members of the 7th Senate. They are Senator Ita Enang, who served as chairman of the Business and Rules Committee in the 7th Senate before defecting to the APC, Senators Babafemi Ojudu, and Solomon Ewuga.
Virtually all those questioned, with the exception of Mr. Ben Efeturi, who is about the longest serving legislative Bureaucrat in the National Assembly, and who also doubles as the Clerk of the Senate, denied knowledge of the amendment. The then Clerk of the National Assembly, Salisu Abubakar Maikasuwa, who presided over the June 9 election, was quoted in the report as saying “he did not refer to any Senate Standing Order/Rules but used the normal procedures for the opening of a new parliament.”
However, Efeturi, who is his deputy, Clerk of the Senate, and longest serving parliamentary staff dating back to the Second Republic, affirmed that the production of the 2015 Standing Rules was in line with convention, insisting that the same procedure was used in the production of the Standing Rules in 1999, 2003, 2007 and 2011.
Efeturi was quoted by the police report as saying, “In the parliament, amendment of Standing Orders is by practice and not necessarily by procedure. He further stated that the ruling of the Senate President on the June 24, 2015 that the Senate Standing Orders of the Senate 2015 is authentic is final, relevant and cannot be challenged. He attached a copy of the debates of the Senate on Wednesday, June 24, where the Senate President ruled that the Senate Standing Order 2015 was the authentic Standing Orders of the 8th Senate.”
But the Police in its findings dismissed Efeturi’s claim, insisting that so long as the said amendment did not take place during the 7th Senate, under Senator Mark’s leadership, such an amendment is “undemocratic.” 
From the report, the Police was able to establish clearly, the process of amending the Senate’s Standing Orders. But like SUF Senators, it could not, however, establish how new Senate’s Standing Orders come into effect. This is even as the Police failed to recommend anyone for prosecution, instead, it recommended that “the file be sent to the Attorney General of the Federation for vetting to determine if this conduct constitutes crime or should be treated as an internal affair of the Senate.”
 
The Legal Brickbats
Once the SUF group got wind of the fact that the outcome of the Police “investigations and intelligence gathering” may after all not favour it, it again approached a Federal High Court, in Abuja, seeking an ex parte motion to stop the Saraki-led Senate from constituting the Senate’s Standing Committees. The suit was filed by one Mamman Osuman on behalf of five Senators, led by Senator Kabir Marafa, spokesperson of the SUF.
Ruling on the matter then, Justice Gabriel Kolawole, held that there was nothing urgent in what the plaintiffs were asking for, adding that the Senate Standing Orders of 2015, upon which the plaintiffs predicated their ex parte motion, had been in existence since June 9, when the President of the Senate and his deputy were elected, and as such, the issue of urgency raised by the five Senators was self-inflicted. Justice Kolawole wondered why just five out of 109 Senators came to court to challenge the internal affairs of the Senate, carried out on June 9.
He further argued that the court was not created to oversee the internal affairs of the National Assembly, except if, in the conduct of its internal affairs, there was an infraction of the constitution, saying the courts must be “more wary when the intervention is sought as an ex parte…The dispute that arose from the outcome of the elections that produced the Senate President and its deputy was the internal affair of the Senate and that court will hardly intervene,” Justice Kolawole said.
In refusing the application, he added: “I find myself unable to exercise my discretion to grant the injunction being sought by the plaintiffs to stop the defendants from carrying out their constitutional legislative duties”.
Also, ruling on another ex-parte application, this time brought before him by Senator Gilbert Nnaji, seeking to stop the police from prying into the internal affairs of the legislature, Justice Kolawole noted: “Whilst one may find the involvement of the first Defendant (IGP) being an agent of the executive arm of government dabbling, albeit on an invitation of certain members of the Senate, into the internal affairs of the Senate a little bit worrisome, the court is a bit wary on an ex parte proceeding, to allow the Plaintiff to have his day in court.
“Courts are not created or established to supervise the National Assembly in the way and manner it will run its own constitutional duties except where its acts, as I had earlier remarked, border on a substantial infraction of the Constitution, which goes beyond its own internal “rules” of procedure or application of its ‘standing order’.
The court, however, went further to warn that “where the first Defendant conducts its investigation and prepared its report, it is still within the judicial powers of this court pursuant to Section 6(6) (a) of the Constitution to take a decision to set aside such report where the Court was of the view that it was prepared in defiance of the proceedings of the Court, which the Defendants are already aware of its pendency at the time the first defendant may prepare its report.
“I am wary that a dangerous precedent is not being set for the 8th National Assembly to have its internal proceedings, being regulated, and perhaps supervised by other arms of government of the federation, i.e. the Executive and Judicial arms.”
The learned justice went further to say that “where allegation of forgery is made, it is for the Court to reflect deeply whether it is not an allegation, which the Senate Committees on Rules and of its Ethics, can validly investigate and to take steps within its own internal proceedings to nullify any of its Standing Orders found to be irregular and to also sanction any of its members that may be found culpable.
“One of the sanctions it may prescribe is to recommend such member or members to the defendants (Police) for prosecution. All of these are my thinking as a way to protect the integrity and independence of the National Assembly, so that neither the Executive arm as constituted by the Defendants nor by the Judiciary should be allowed to pry into a matter which the National Assembly as the Legislative arm of government can deal with applying its own Rules and Standing Orders.”
 
A Controversial Arraignment
In spite the above sound reasoning by Justice Kolawole, the Attorney-General of the Federation, AGF and Minister of Justice, Abubakar Malami, SAN, in defiance to Justice Kolawole’s order, has since dragged the President of the Senate, Senator Bukola Saraki, Deputy President of the Senate, Senator Ike Ekweremadu, and two others, before an FCT High court over the matter.
This has expectedly put the National Assembly and the presidency on the path of political warfare. While the Senate and the House of Representatives in their tersely worded separate resolutions of June 21, 2016, roundly condemned what they termed the endangerment of democracy by executive interference in the internal affairs of the Senate, adding that the institution of the Senate was being put on trial, both the statements issued by the office of the AGF and the Secretary to the Government of the Federation (SGF) denied the allegation, insisting that it was Saraki and Ekweremadu that were on trial. The AGF said the criminal charge was based on the recommendation of the Police.
The suit marked CR/219/16, is between the Federal Government of Nigeria (Complainant) and Salisu Abubakar Maikasuwa, Benedict Efeturi, Dr. Olubukola Saraki, and Ike Ekweremadu (Defendants). They are facing a two-count charge of “Criminal Conspiracy, contrary to Section 97 of the Penal Code Law” and “Forgery contrary to 362 of the Penal Code Law,” against Ekweremadu and others. The case is before Justice Yusuf Haliru.
The defendants were arraigned on June 27, 2016, with both Saraki and Ekweremadu giving the presidency some hard knocks. While Saraki insisted the presidency had been hijacked from Buhari by a “government inside the government”, Ekweremadu who declared that “mere anarchy had been unleashed on the land”, described the trial as political and “meretricious trash”. He has since written to members of the international community, notably, the UN, EU, USA, US Congress, etc.
 
Abuse of Legal Process
Ruling June 28, 2016, barely two days after the Saraki and Ekweremadu’s arraignment, on yet another move to stop the trial for contempt of court (the charges relied on the police report, which validity is not yet determined), Justice Kolawole expressed worry that the AGF could not exercise his powers in Section 174(1) of the Constitution to stop the criminal charge against the accused – Saraki and Ekweremadu, saying “Although when this Section (174[1]) is read communally with Section 174(3), it is arguable that Section 174(1)(c) is to be read with the ‘need to prevent abuse of legal process’ in section 174(3) of the constitution.
“The converse situation, which the drafters of the constitution, perhaps never envisaged appears to have occurred in this case as the 2nd defendant (Abubakar Malami) who is required by Section 174(3) of the Constitution, to ‘discontinue at any stage before judgment is delivered in any such criminal proceedings instituted or undertaken by him or any other authority or person’ where such proceedings constitute ‘abuse of legal process’, is in fact the very person, who initiated a criminal proceedings in a matter in which he had, as a private legal practitioner, acted for the one of the ‘interested’ Senators who had petitioned the 1st defendant on 30/6/15.
“But, having regard to the peculiar facts which I have analysed, the said criminal charge dated 10/6/16 and attached as exhibit ‘B’ to the Plaintiff’s ‘motion ex parte’ dated 23/6/16, given the course of these proceedings as I had in detail, highlighted, can only be seen as one that constitutes an ‘abuse of legal process’ to use the very words in section 174(3) of the constitution.
“In all of these facts and issues, having regard to the pendency of this suit in which the defendants have both filed processes, one question that did not cease to resonate in my thoughts is why this desperate haste’ to prefer the criminal indictments in exhibit ‘B’ the investigation of which is at the heart of this suit and of the parallel suit in exhibit ‘E’, and which indictments, by law are not time barred,” Justice Kolawole, added.
He went further to say “It is the event of the steps taken by the defendants (Abubakar Malami and IGP) in utter defiance of this pending suit, that in my view, unobtrusively betrayed the defendants’ intention and of the 2nd defendant’s motives as steps taken which are beyond serving the ‘public interest’ by the commencement of a criminal trial in the FCT High Court in order to subvert the pending suits in the Federal High Court, one of which has been fixed for 6/7/16”. He concluded by saying where the criminal charge was to be filed in his court, he would not think twice, before throwing same to out.
 
Ben Nwabueze Intervenes
Foremost constitutional lawyer and Senior Advocate of Nigeria, Prof. Ben Nwabueze had since come out of his retirement to rebuke what he considered an absurd arraignment and executive interference. While stressing that the prosecution of the leadership of the Senate in a court of law under the Executive amounts to use of coercive influence to interfere in the internal proceedings of the Senate, he said: “It is a flagrant breach of separation of powers caused by ignorance as can be seen in the incompetent statement by the AGF.”
He said the AGF was wrong in saying that the forgery case had nothing to do with separation of powers and that he has powers to initiate proceedings in any court of law. Nwabueze argued that the Executive arm of government has contravened Section 5 of the Constitution of the Federal Republic of Nigeria.
He cited the U.S.’ Supreme Court in Humphrey v. United States (1934) thus: “The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question.
“So much is implied in the very fact of the separation of the powers of these departments by the constitution, and in the rule, which recognises their essential co-equality. The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another, who is master there. The independence of each department requires that its proceedings ‘shall be free from the remotest influence, direct or indirect, of either of the other two powers.”
Nwabueze took a swipe at the SGF for asking Saraki and Ekwermadu to resign or face trial and for insisting that the Senate as an arm of government should be separated from its principal officers in the matter.
“The prosecution of the President of the Senate and his Deputy for forgery of the Senate Standing Rules cuts a very sad and degrading image of Nigeria in the eyes of the international community. It is a bad reflection on the country, as the leading light in the African Continent that prides itself to be practising democracy.
“Considering the high degree of moral turpitude and obloquy it involves, publicised allegation of FORGERY against the President of Nigeria, the President of the Senate or the Chief Justice of Nigeria, as the respective heads of the three arms of government, disgraces, degrades and diminishes all of us as patriotic Nigerians in the eyes of the world, which therefore counsels caution, circumspection and respect for national dignity on the part of us all.
“This matter transcends partisan politics and has nothing to do with the war against corruption, which we all stand for. The matter demands of the National Assembly, irrespective of party affiliations, to appreciate that what is involved in this case is an attempt to erode not only its powers but also the cardinal principles of the Constitution; it touches indeed the heart of our democracy, and imperils our engagement with it.”
 
Which Way Forward?
Considering series of court rulings, including the latest ruling, which described the trial as “an abuse of court process”; considering the allegations of conflict of interest against the AGF, it is left to be seen, how this case will play out. One thing is, however, clear – most lawyers such as Chief Mike Ozekhome, SAN, have so far aligned with the learned Justice Kolawole and Professor  Nwabueze by submitting that the internal affairs of the Senate was not the business of the executive.
-Oluwanifesi writes from Abuja