Forgery charge: Separation of Powers, not Senate, is on trial – By Kingsley Amaku

TTo 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.