It is no longer news that the Attorney General of the Federation, Abubakar
Malami (SAN), has proffered forgery charges against the leadership of the
Senate. Forgery is a very serious allegation. This presupposes that the
accused persons in this case conspired to forge the Rules of the Senate.
To make such an outlandish claim against the leadership of the highest
lawmaking body, the National Assembly, would require that the attorney
general has done his homework well and his case is not just unassailable
but that it would be a matter of National Security not to fully prosecute
the case. Any other suggestion with less weight, would have incalculable
ramification for the development of our democracy, good governance and the
perception of Nigeria in the eye of the international community. But can
this be the case?
Let’s examine the issues for a moment. Part 2 of the 1999 Constitution
Section 60 of the 1999 Constitution clearly provides for our government to
be based on three separated but equal arms of government on whom power is
shared in such a manner that neither of the other or a combination can
intimidate, influence or supervise the other in the running of its
internal affairs but must necessarily in the spirit of co-equality work
together to ensure the rule of law.
Section 60 of the constitution provides that “Subject to the provisions of
this Constitution, the Senate or the House of Representatives shall have
power to regulate its own procedure, including the procedure for summoning
and recess of the House.” The Constitution again declares under section 64
as follows “64. (1) The Senate and the House of Representatives shall each
stand dissolved at the expiration of a period of four years commencing
from the date of the first sitting of the House.”
The implication of these two provisions for the purposes of this article
will be examined as if they refer only to the Senate. It will be apparent
on the face of the provisions that the Senate Rules are made by the Senate
for itself. It will also be easy to conclude that by the combined effects
of the two provisions, the rules of a new Senate are not dependent on how
consistent it is with the outgoing Senate. This is because aside the
provisions of Section 64 of the Constitution which borrows from the
practice of the parliament of the United Kingdom, the implication of
dissolution of parliament is that the old parliament ceases to exist
(dissolves), which in this case under our constitution has been defined as
(after 4 years). Meaning that every activities not concluded by the
outgoing Senate becomes annulled.
The implication includes that the in-coming Senate becomes a fresh Senate
that starts afresh. This new Senate’s power to make Rules for itself is
not dependent on having and indeed adopting the former Senate Rules. The
former Senate Rules is only helpful as a guide at best or a template. This
template is either amended, adopted, approved by the incoming Senate for
itself.
The question then that arises is that under what Rules is the election and
swearing in of Senators-elect based. In order to answer this question,
let’s examine and understand the process of inauguration of a new Senate.
Having established that by the provisions of the constitution, a former
senate dissolves into non existence, it goes without saying that the rules
to be adopted for the proclamation of a new Senate and the election of
members can only be based on the culture, custom and usage of the Senate.
This position becomes even tenable with the fact that until sworn-in,
members remain by the Constitution, merely senators-elect with no
authority to adopt, apply or in anyway authorize anything whatsoever until
sworn in. In this case, only the clerk of the National Assembly who is the
harbinger of the rules and is in-charge of the conduct of the proceeding
can determine the procedure to be adopted. I can’t recall any objection by
any senator-elect to the process or the rules adopted on the day by the
Clerk of the National Assembly in swearing in and through the election
process.
According to the AGF, his decision has been based on the petition from
certain senators and the report of the police investigation. The petition
and the report put together claim that the Senate Standing Orders 2015 as
amended upon which the Senate leadership election was based is not
authentic but forged.
But is this conclusion grounded in fact and in law?
In fact, it is hardly plausible putting together the ingredients of
forgery into play, the practicability of the so called conspiracy to
forgery would have taken place effectively. To start with, these questions
must be answered positively. If there is forgery of the 2015 Rules it
presupposes that there is an original, the AG must have this original from
which he must have determined that indeed forgery has occurred. Two, if
the clerk who is the bearer of the rules has not alleged forgery and the
Senate in chamber has adopted and ratified their rules as authentic, can
the courts hold otherwise in view of the separation of powers and non
interference on each other’s turf? Can the AGF based on any other report
craft a charge of forgery? If the charge is based on the old 2011 rules,
how is it that Saraki who was neither the keeper of nor a principal
officer of the 2011 assembly be held responsible in law?
While we had earlier established the fact that no arm of government
including the Executive has supervisory role over another arm, a fact
strongly highlighted under section 30 and 32 of the Legislative Houses
(Powers & Privileges) Act. LFN 2010 CAP 234 which limits the powers of the
executive and the judiciary to pry into the activities of the legislative
houses, one is hard pressed to understand the grounding of the Attorney
General’s position. It is arguable and almost very easily, except for the
pedigree attached to the AGF office to suggest that the AGF may have in
this case over-reached himself and severely damaged his own pedigree
almost irredeemably as his position is hardly tenable.
I hope we are not making a caricature of our democracy and damaging our
people’s right and opportunity to live in a thriving democracy. The AGF
must ensure he has done his homework well as this from afar smell of
gibberish.
Amaku is Senior Special Assistant to Senate President