The forthcoming trial of Bukola Saraki, senate president and Ike Ekweremadu, deputy senate president appears very interesting as it will be a clash not necessarily about the immunity clause provided in the 1999 Constitution but a battle of supremacy between the Legislative Privileges Act and Police Act
FRICTION between the executive and the legislative arm of government is always a constant in a democracy which thrives on conflicts and conflict resolution. This is why right thinking people in a democratic setting will not raise an undue eyebrow in any face-off between the two arms of government over issues that are seen to deepen the democratic process in Nigeria. Since 1999 when the country returned to democracy, the two arms of government have always had a cat and mouse relationship with the executive trying to lord it over the National Assembly and the later fighting hard to assert its independence. Usually the bone of contention in the quarrel between the duo is over sundry issues such as who assumes leadership of the Legislative arm of government and budgetary matters much to the chagrin of other members the society. Most times the issues are resolved without breaching the Constitution which provides the rules that govern a democratic country and the Legislative Privileges Act, which guides proceedings in the house.
However, it appears that with the current face-off between the executive and the legislature over the forthcoming trial of Senate President Bukola Saraki and Ike Ekweremadu, deputy senate president and others, the fight will not bother on the Constitutional provisions with regards to immunity clause but between the Legislative Privileges Act and the Police Act. This is why most Nigerians are worried about the current war of attrition between the Executive and the Legislature, hoping that common sense should prevail to save the country unnecessary stress.
The trial of the leadership of the Senate started with the procedure that led to election of Saraki and Ekweremadu, who belonged to the opposing political party, Peoples Democratic Party, PDP, against the wishes of the chieftains of the All Progressives Congress, APC, who favoured a different candidate. After the election, the stunned APC Stalwarts vow to get even with Sakari, seen as the black sheep of the APC family. This led to allegations that both Saraki and Ekweremadu secretly amended the Standing Rules of the National Assembly to enable them hold the election that brought them into office.
After the election, a group of APC lawmakers under the aegis of the Senate Unity Forum, SUF, alleged that the Standing Order used for the July 9, 2015, election of principal officers for the 8th Senate was doctored. The five members of the All Progressives Congress, APC, in the Senate, Abu Ibrahim, Kabir Marafa, Ajayi Boroffice, Olugbenga Ashafa and Suleiman Hunkuyi, had petitioned the police over the matter. There petition made the Nigeria Police Force to initiate an investigation into the allegation.
They lawmakers also took the matter to court in a suit marked FHC/ABJ/CS/651/2015, seeking the removal of Saraki and Ekweremadu. The plaintiffs prayed the court to sack the duo on the premise that the version of the Senate Standing Orders that was used for their election was forged. In their suit dated July 27, 2015, the plaintiffs, contended that allowing Saraki and Ekweremadu to continue to pilot the affairs of the Senate regardless of the fact that they emerged through an act of illegality, would on itself amount to corruption.
After the court had concluded hearing on the matter, Ekweremadu, filed a petition before Justice Ibrahim Auta, chief judge of the High Court, alleging bias against the judge that handled the case, Justice Ademola Adeniyi. In his petition dated December 18, 2015, Ekweremadu, insisted that Justice Adeniyi was closely related to some chieftains of the APC. He specifically identified Ahmed Bola Tinubu, national leader of the party and former governor of Lagos State, as one of the people he said has personal relationship with the Judge. Ekweremadu queried the ability of Justice Adeniyi to deliver an objective verdict on the matter in view of his alleged closeness with the APC – the party the plaintiffs belong to.
Following the petition, which was filed four days after the suit was fixed for judgment, the CJ, re-assigned the case to another Judge, Justice Evoh Chukwu. Unfortunately, Chukwu died earlier this month, thus leaving the case hanging, waiting to be re-assigned to another judge.
With the case being bugged down, the executive arm of the government through the office of the Attorney General of the Federation and Minister of Justice, Abubakar Malami, SAN, dusted up the 13-page report of the police investigation of the alleged forgery of the Senate Standing Rules document to take Saraki and Ekweremadu to court.
According to the police report, on June 9, 2015, a document entitled “the Senate Standing Order 2015 as amended” was distributed to senators of the 8th Senate for their inauguration as members. The contents of the Senate Standing Order 2015 as amended are substantially different from the Senate Standing Order 2011 as amended. Sections 2(iv), 3(3)E, I,ii,iii, G and H, 5 and 7 of the Rules are different in the two Orders. The police also found that the Senate Standing Order 2015 as amended was used by the clerks of the National Assembly and the Senate as the Senate Standing Orders to inaugurate and conduct elections into the offices of the presiding officials of the Senate viz the Senate President, the Deputy Senate President etc.
“The testimonies of some members of the 7th Senate including that of the chairman of the Business and Rules Committee and Senators of the 7th Senate indicate that the Senate Standing Order 2011 was not amended during the tenure of the 7th Senate which ended on the 8th of June, 2015,” the police report said. It also found that “the procedure for the amendment of the Senate Standing Order as contained in Section 110 of the Senate Standing Order 2011 as amended stipulates that any amendment to the Senate Standing Orders should be in line with the following procedures: i. Any senator desiring to amend any part of the Rules or adding any new clause shall give notice of such amendments in writing to the President of the Senate giving details of proposed amendment. ii. The President shall within seven working days cause the amendment to be printed and circulated to members. Thereafter, it shall be printed in the Order Paper. iii. The movers of the amendment shall be allowed to explain in details the proposed amendments, thereafter the Senate shall decide by simple majority votes whether the amendment should be considered. iv. If the decision is to consider the amendments, then another date shall be set aside by the Rules and Business Committee, whereby opportunity would be given to Senators to further propose amendments but must strictly be confined to the original amendments. v. Two third majorities shall decide the amendments and such amendments shall form part of the Rules of the Senate.”
The police said that “the Clerk of the Senate, Mr. Benedict Efeturi, who doubles as the Deputy Clerk of the National Assembly confirmed in his statement that the Senate Standing Order 2015 as amended was produced on the orders of the Senate leadership without following the amendment procedures as contained in the Senate Standing Orders 2011 as amended. (g) That the allusion by the clerk of the Senate to procedure of amending the Standing Orders of Parliament through “practise and not necessarily by procedure” is a misplaced analogy and undemocratic because the Nigerian Senate has clearly laid-down without a provisio, the procedure to be adopted in amending its standing orders as contained in section 110 of 2011 Senate Standing Orders.”
From the findings, especially from the statement of the clerk of the Senate who doubles as the deputy clerk of the National Assembly, the police wrote that the Senate Standing Orders 2015 which was used to inaugurate the 8th Senate on the 9th of June 2015 was ordered by the leadership of the 7th Senate without following Section 110 of the Senate Standing Rules 2011 as amended which requires that any amendment to the Senate Standing Rules must be debated and approved by the senators on the floor of the Senate.”
It recommended that “This practice where some group of senators amend the Rules of the Senate without following legal procedures is not only criminal but portends danger for our growing democracy and should be discouraged.” Also, 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
Apparently, the attorney general considered the amendment as criminal hence the case it has instituted at the Abuja High Court, Jabi, which was to hold on Tuesday, June 21. But Justice Yusuf Halilu, the trial judge hearing the case postponed it to June 27, because the court papers were not properly served to Saraki and Ekweremadu, who were expectedly not in the court.
The two Senate leaders are to be tried on a two-count charge bordering on conspiracy and forgery. The federal government is accusing them of complicity in alleged forgery of the Senate Standing Orders, 2015. They were charged alongside Salisu Abubakar Maikasuwa, former Clerk of the National Assembly, and Benedict Efeturi, his deputy.
The federal government is insisting that they had by their conduct committed an offence punishable under Section 97 (1) and 364 of the Penal Code Act. Specifically, the charge against the defendants, with suit No. CR/219/16, stated: “That you, Salisu Abubakar Maikasuwa, Benedict Efeturi, Dr. Olubukola Saraki and Ike Ekweremadu, on or about, the 9th of June, 2015, at the National Assembly complex, Three Arms Zone, Abuja, within the jurisdiction of this court, conspired amongst yourselves to forge the Senate Standing Order, 2011 (as amended) and you thereby committed the offence of conspiracy, punishable under Section 97 (1) of the Penal Code Law.
Also, it stated: “That you, Salisu Abubakar Maikasuwa, Benedict Efeturi, Dr. Olubukola Saraki and Ike Ekweremadu, on or about the 9th of June, 2015, at the National Assembly complex, Three Arms Zone, Abuja, within the jurisdiction of this court, with fraudulent intent, forged the Senate Standing Order 2011 (as amended), causing it to be believed as the genuine Standing Order, 2015 and circulated same for use during the inauguration of the 8th Senate of the National Assembly of the Federal Republic of Nigeria when you knew that the said Order was not made in compliance with the procedure for amendment of the Senate Order. You thereby committed an offence punishable under Section 364 of the Penal Code Law.”
Since the intention of the federal government to try the leaders of the National Assembly in court became public, Nigerians from all walks of life have weighed into the controversy. There are those in favour and against depending on which side of the political divide they belong to. What is evident is that there will be an eminent clash between what the Constitution states with regards to the immunity clause on one hand and what the Legislative Privileges Acts states with regards to protecting legislators in the course of their job and that of the Police Act with regards to trying criminal cases. Constitutional lawyers are agreed that the leadership of the National Assembly do not enjoy the immunity clause in the 1999 Constitution as it is limited to the only the executive arms of government with regard to the president, the vice president and governors at the state level and their deputies while they are in office.
However, there is the belief that the trial of Saraki and Ekweremadu is more political than legal based on the fact that the presidency and APC are not happy with the emergence as leaders of the Senate. Categorically, Saraki and Ekeremadu do not enjoy the kind of immunity that will preclude them from criminal prosecution as stated by section 308 of the 1999 Constitution. But the current case appears to be a tricky legal conundrum because of the Legislative Privileges Act 2004, which is an act of parliament that gives privileges from criminal or civil proceedings to officials and legislators on an act carried out by them on the floor of the house within the premise of the National Assembly. This is why even if a senator or member of the House of Representatives stands up to make a statement on the floor of the senate or the House which is defamatory or libellous of any person that person cannot be sued to court to claim damages from libel or defamation because matters uttered on the floor of the National Assembly have what is called absolute privilege from legislation.
From this perspective, the alleged amendment to the Standing Order which is being equated to forgery, was made in the House pursuant to the legislative duties by the members of the Senate including the senate president, Ekweremadu, former Clerk of the senate and all those who participated in the ordinary course of their legislative duties within the premise of the National Assembly. Consequently, it can be deduced that such act will enjoy automatic privilege from prosecution or from criminal proceedings.
This kind argument has been effectively deployed in the trial of Herman Ihembe, former member of the House of Representative and chairman House committee on Capital Market, who was tried in 2012 for collecting N39 million for public hearing on Capital Market and demanding N5 million bribe from the Securities and Exchange Commission, SEC. It was also used by the Supreme Court to free Dimeji Bankole, former speaker of the House of Representatives, who was arrested in 2011 and charged for corrupt practices (contract inflation and embezzlement of public funds totalling N9 billion) while in office. Bankole’s case was discharged in 2014.
This must be the reason Mike Ozekhome, SAN and constitutional lawyer says, “It will be interesting to see how the attorney general will be able to wriggle out of the Legislative Privileges Act of 2004, which gives legislative officers total and complete immunity on act carried out on the floor of the house vis-à-vis the powers of the Police under Section 4 to investigate and prosecute for criminal cases. The coming days will be very interesting but I can see the preliminary objections that you cannot prosecute this people not because of the Nigeria Constitution but because they enjoy legislative privileges.”
Thinking differently, Onyekachi Ubani, former chairman of the Nigerian Bar Association, Ikeja Branch is of the view that what should concern Nigerians is whether there was an alleged crime. “Was there any alteration on the rules of the Senate? The Senate has regulations and rules, and if you want to amend the rules there are procedures to be adopted before the amendment. Was that amendment procedures followed? If it was not followed and you altered it, when we are in positions there are things we shouldn’t be doing irrespective of party affiliation or differences. Most times, we allow sentiments to crop up even when we know that what is being said is right, we allow sentiment and that cannot make us to grow as a nation”.
According to Ubani, “the questions we should ask are whether there was an investigation, whether the investigation was done properly; were the parties involved actually invited and given a hearing before reaching any conclusion? Is this an issue of breach of the law for the attorney general to take them to court? Are they above the law? So if they are not above the law, then I don’t see anything special about the case.” He believes that Nigeria has used political solution to problems to further reduce the moral standard of this nation. “Things are getting worse by the day and we are not laying a solid foundation for our children who are coming up. I think we should start by doing things properly. If I’m in a public office, what are the expectations from me and what I’m supposed to do and what I’m doing right or wrong. Then we will begin to follow the part of rectitude and now know that when you do something that is wrong you can be punished. I think an investigation has been done. I think police has found some evidence against certain persons that are being charged now.”
He acknowledges that it is for the court to make pronouncement while dismissing the argument that “you cannot keep on embarrassing the leadership of the House is pure blackmail. Maybe if they agreed that they have done wrong and then plead for forgiveness, we have a forgiving spirit, Nigerians can say allow them to go on. But that has to be done and the issue cannot continue the way it used to be. I don’t look at this issue on whether Saraki is of the APC or from the north. I’m looking at it from the perceptive that I’m a Nigerian. I’m saying let us begin to insist even from the presidency that we must begin to do things rightly.”
Whatever, Nigerians are keenly watching to see who will have the upper hand in the forthcoming legal battle between the executive and the Senate leadership in court next week.