When can the Senate be on trial?

The main actors in the 8th Senate have been in and out of courts in recent times, but the decision to put the duo of Senate President Bukola Saraki and his deputy Ike Ekweremadu up for alleged forgery trial is raising questions whether the lawmaking institution is practically not on trial? Group Politics Editor, Taiwo Adisa examines the issues.

IS the Senate on trial, going by the decision of the Federal Government to file criminal charges bothering on alleged forgery of Senate Rule Book, 2015? That is the question the Senators were confronted with on June 21, when it blew open that the President of the Senate, Senator Bukola Saraki and his deputy, Ike Ekweremadu were being charged before an Abuja Federal High Court.

The matter of alleged forgery has been on the table for some time now. Indeed, it was an issue raised early in the life of the current Assembly by members of the Senate Unity Forum (SUF), who are loyal to the hierarchy of the All Progressives Congress (APC) immediately they lost out in the titanic battle for the Presidency of the 8th Senate. Senator Kabiru Marafa, spokesman of the SUF had raised the allegation on the floor of the Senate in an attempt to nullify Senate’s inauguration of June 9, 2015 but was overruled as the chamber voted to adopt the 2015 Rule book as the document it would rely on for the conduct of affairs in the 8th Session. Speaking in an interview, Marafa hinted that he had no apologies over the move. His words:  “I have no regret at all. At my age and status, do you think I will do something wrong and be reluctant to apologise? I am of the conviction that what I did was the right thing. And for your information, I am trained to speak the truth.’’

Not satisfied with the ruling of the Senate, members of the SUF landed a petition before the Inspector General of Police (IGP) on the matter. The same members had filed two suits before the High Courts, seeking to pin down forgery charges on the leaders of the Senate.

In June, the Federal Government took a plunge into the feud when it filed alleged forgery charges against Saraki, Ekweremadu, the former Clerk to the National Assembly (CNA), Salisu Maikasuwa and the Deputy Clerk to the National Assembly, Ben Efeturi. It was an unprecedented measure. While the executive and the legislature had since the restart of democratic rule in 1999 been at loggerheads at different instances, at no time has the leadership of a chamber been dragged to the courts. Now, Saraki has to face not just one suit but two criminal trials, while his deputy, Ekweremadu is to join him in the other.

The Senate did not lose sight of the political implications of the above. Chairman, Senate Committee on Federal Capital Territory (FCT) Senator Dino Melaye immediately raised a motion calling attention of his colleagues to attempts to truncate democracy. His motion, which sought to summon the Attorney General of the Federation and Minister of Justice, Abubakar Malami, to appear before the Committee on Judiciary and Legal Matters was generally carried and the stage, was set for the confrontation that could define the shape of the politics of this era.

Melaye, in his motion, raised the alarm that the executive was playing anti-democratic games. He said that the suit at the Federal High Court in Abuja was a violation of the ruling of another Federal High Court in the Federal Capital which last year struck out the case of alleged forgery against the National Assembly on the grounds that the National Assembly was an independent arm of government and hence, it would be wrong for another arm to interfere in its affairs unless such matter is proved to be in violation of the constitution.

Melaye said: “The Nigerian Senate has observed the ongoing systematic degradation and abuse of the office of the leadership of the National Assembly by the executive arm of government through intimidation and harassment. This Senate notes regrettably that the executive arm of government as presently constituted is still to come to terms with the constitutional tenets of separation of powers and the independence of the legislative arm of government.

“This Senate notes also the lack of respect for judicial decisions and the resolutions of the National Assembly by the executive which is beginning to arrogate itself unifying powers of the federation.The Senate notes that the current attempt to arraign the leadership of the Senate over an internal matter of the Senate and claims spuriously a forgery that does not exist is a smokescreen for an impending attempt to overthrow the legislative arm.”

Following the outbursts in the Senate on the matter, the Secretary to the Government of the Federation (SGF) Babachir David Lawal, on June 30, expressed an opinion in the media to justify the charges against Saraki and Ekweremadu. The SGF was quoted as saying:  “It is important to emphasise that this case involves only the accused persons and should not be presented to the unsuspecting public as involving the entire Senate of the Federal Republic of Nigeria. To bring the National Assembly as a body into this court case is totally unwarranted. It can only be for other purposes and reasons outside the investigations and legal proceedings.”

He cited the case of the sacked Speaker of the House of Representatives,  Salisu Buhari, who was discovered to have forged his  certificate and age after emerging Speaker in 1999 adding: “What he did was to resign honorably…the individual involved did not drag the entire legislature into the matter. The provisions of the separation of powers are entrenched in our Constitution and should guide everyone in our conduct. The rule of law is indeed supreme. This particular case is before the judiciary and is not being decided by the executive arm of the government. We should allow the process to take its course in consonance with the dictates of the rule of law and total obeisance to the cardinal democratic principle of the separation of powers.”

That statement, in itself immediately made the SGF a marked man in the Senate and he has had to defend himself after being summoned before the lawmakers. But the question remains, whether the Senate is on trial. In the tradition of the Senate and Nigerian parliament, only few officers of the parliament can represent the institution. Whenever the Senate President, his deputy, the Senate Leader and the Senate spokesman express views, they are taken as the views of the Senate. They are the four seen as representing the Senate at all times. Outside that, the Senate also speaks at plenary, where motions and bills are ratified.  Thus, it could be deceitfully ingenuous to claim that anything involving the presiding officers of the Senate does not involve the Senate as a whole.  Indeed, the offices of the Senate President, his deputy and the Senate Leader can hardly be separated from the Senate. The Senate in itself, being an abstract power, only represented in flesh and blood by the elected officers.

But Lagos lawyer, Femi Falana, while speaking  on The limit of executive immunity in Benin, Edo State, alleged that Saraki and Ekweremadu were playing politics with the issue. He claimed that the Senate was merely alleging political victimisation, but not that the offence was not committed. “As leaders of the National Assembly, you are supposed to be above board and that is even the more reason you must be careful. But I want to remind the senate that the Attorney General of the Federation is only answerable to his boss, which is the President and not body else,” he said.

Another legal practitioner, Mr Remi Agwuezie, toed Falana’s line of argument, urging the Senate to face the business of lawmaking rather than dissipating energy on the trial. “They should allow the Senate President to face his trial as an individual not as Senate of the Federal Republic of Nigeria. We have 109 Senators and when one is facing trial, others should continue to make laws for the country. It is not the senate as an institution that is on trial but Saraki as an individual; so, the law should be allowed to run its full cause, while the senate as an institution moves on,” he said.

A fresh dimension was however added to the saga by the Abuja Division of the Federal High Court, which faulted the two-count forgery charge. Ruling on a motion ex-parte filed by Senator Gilbert Nnaji, Justice Gabriel Kolawole held that the charge which was endorsed by the Attorney General constituted a gross abuse of judicial process, as it was initiated despite the pendency of a suit challenging the police report on the alleged forgery of the Senate Standing Rule 2015. He added  that both the AGF and the Inspector General of Police are not only defendants in the matter, but have also joined issues with plaintiff.

Justice Kolawole said he would have nullified and set-aside the forgery charge for being a gross abuse of court and legal process if it had been filed before his court. He said:  “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 as the substantive suit before this court, had by consent of both the Plaintiff’s Counsel and the 1st defendant’s Counsel, been scheduled for 6/7/16 for hearing. It is the event of the steps taken by the defendants in utter defiance of this pending suit, that in my view, unobtrusively betrayed the possible genuineness of 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.

“By the extant Supreme Court’s decisions, once a court comes to the decision that a particular process before it constitutes abuse of judicial or legal process, the appropriate orders it can make, is to put an end to the continuation of such proceeding. But as it is, it is pending before my learned brother, the Hon. Justice Yusuf Halilu of the FCT High court, which is a court of co-ordinate jurisdiction and who has become seized of the charge as at 21/6/16 when he adjourned it to 27/6/16 for the arraignment of the defendants listed in Exhibit “B” attached to the Plaintiff’s “Motion Ex parte.”

Elder statesman and erudite lawyer, Professor Ben Nwabueze (SAN) was to drive home the point about the inseparability of the Senate leadership from the Senate in a piece published last week and made available to the leadership of the National Assembly. He wrote: “First, the Senate, as an institution, cannot be divorced from its President and his deputy. The two presiding officers personify the Senate which is an abstraction, an artificial entity endowed by law with a legal personality as expounded by the highest court in England, the House of Lords. In an authoritative pronouncement in Lennard’s Carrying Co. v Asiatic Petroleum Co. Ltd [1915] A.C 705, a case in which the managing director of a company was being prosecuted for an offence committed by the company, Viscount Haldane, Lord Chancellor, delivering the judgment of the House of Lords, said:

“The Senate President and his deputy are therefore the alter ego, the personification, of the artificial entity, the abstraction, called the Senate which cannot in law be divorced or separated from its President and his deputy. It is therefore the Senate that is being dragged to court in this case. Second, the prosecution of the Senate President and his deputy for forgery clearly offends and violates the principle of the separation of powers. The statement by the Secretary to the Government of the Federation speaks glibly about the separation of powers without appreciating its implications and incidents.

“The pronouncement by the United States Supreme Court is very significant in relation to the prosecution of the Senate President and his Deputy for forgery which is an attempt by the Executive to exercise coercive influence over the Senate as personified by its President and his Deputy. It is therefore a blatant assault on the separation of powers whose implications and incidents are expounded in the above quoted pronouncement by the Supreme Court of the United States.

“Third, the effect of the prosecution as an assault on, and violation of, the principle of the separation of powers is brought out emphatically by the fact that the prosecution is, not for forgery of the certificate of the individuals being prosecuted, as in the Salisu Buhari case, but of the Standing Rules of the Senate, made pursuant to its power under section 60 of the Constitution to make rules “to regulate its own procedure.”

“The Standing Rules are therefore a matter relating to the internal affairs of the Senate. To quote the US Supreme Court again “the sound application of the 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 principle of the separation of powers recognizes the Senate as master in its own house, with the power to regulate its internal proceedings by means of the Standing Rules. It makes hardly any sense for the Standing Rules to have been forged by Dir. Saraki and Dir. Ekweremadu otherwise than in their capacity as President and Deputy President of the Senate respectively.

“If those Standing Rules have been forged, as alleged, it is for the Senate, as master in its own house, to decide and, if it so decides, to say what sanctions to impose on the culprits. It is the Senate that elected the President and his Deputy and can vote to remove them from office. The Executive has no right to interfere by using the coercive process of the judiciary which is another arm of the government of the Federation, separate from both the National Assembly and the Executive.”

“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.”

It is obvious to the senators engaged in the fight at hand that the battle is an admixture of politics and law. In fact it has little to do with the latter. The fear among the lawmakers is that the Federal Government decided to flag off the planned clean sweep of Senate leadership following the delay being experienced in the suit against Saraki at the Code of Conduct Tribunal (CCT). They believe that the plot this time is to keep Saraki and Ekweremadu out of the chamber on criminal trial such that a leadership change could be effected.

Even if that is the target, it is certain that the dynamics of Senate’s composition would still pose huge challenges. The APC is divided between the Saraki loyalists and those loyal to the APC, while the Senators of the Peoples Democratic Party (PDP), who are more than one third of the chamber, see Saraki as a victim of power play rather than an offender of the law.