SANs divided on Sagay’s invitation, Ndume’s suspension

Senior lawyers yesterday expressed divergent views on the Senate’s invitation of Presidential Advisory Committee Against Corruption (PACAC) chairman, Prof Itse Sagay (SAN).

The Senate on Wednesday also suspended former Senate leader, Senator Ali Ndume, for making “false” allegations against Senate President Dr. Bukola Saraki and Senator Dino Melaye.

It resolved to invite Prof Sagay to appear before its Ethics, Privileges and Public Petitions Committee to explain why he described senators as “childish and irresponsible” after they asked President Muhammadu Buhari to sack the Economic and Financial Crimes Commission (EFCC) Acting Chairman Ibrahim Magu within two weeks following his non-confirmation.

A Senior Advocate of Nigeria, Sebastine Hon, said the Senate lacks the power to summon any private individual over his/her comments or view on the activities of members of the legislative house.

He argued that the summons by the Senate to Prof Sagay to appear before it over and concerning the Senators is unconstitutional.

Hon said: “While those comments are not salutary, they do not merit an invitation to appear before the Upper House.

“A similar situation had played out in the 1980s, in the case of Senate of the National Assembly vs. Tony Momoh ((1982) FNLR 307. In this case, Prince Tony Momoh had published in the Daily Times of 4/2/1980 an article the Senate of the Second Republic considered was injurious to its image.

“A Senate Committee then invited Prince Momoh to appear before it to ‘clarify’ those press comments. Prince Momoh challenged the invitation in court.

“Even though the Court of Appeal held that Prince Momoh’s action was premature – since the Senate had not taken steps to compel his attendance – it laid down general principles regarding exercise of oversight functions by the National Assembly.

“While I agree that Prof. Sagay’s comments against the Distinguished Senators were inappropriate, I make bold to state that the Senate lacks the constitutional competence to summon him to appear before it merely on account of those comments.

“Let me also add that the Legislature should be cautious in extending summonses to persons under its constitutional oversight functions. If it engages with personalities just because they have made snide comments against it, this will amount to the Legislature reducing its constitutional as an arm of government.

“The Legislature qua the National Assembly should as much as possible conduct itself in such a way as not to be seen to be quarrelsome or petty.”

Former Nigerian Bar Association (NBA) president Chief Wole Olanipekun (SAN) also believes the Senate lacks powers to summon a private citizen.

“As to the ultimatum given by the Senate to Mr. President to sack Ibrahim Magu and the Secretary to the Government of the Federation (SGF) within two weeks, as well as the invitation to Prof Sagay to come and explain what he said about the Senate as a free citizen of Nigeria, I have my doubt as to whether the Senate is imbued with such powers.

“What happens if the President does not abide by their directive? Do they also order his arrest? Can they also order the arrest of Sagay if he does not show up or honour their invitation? Can the President direct the Senate to do certain things or even approve the national budget within two weeks?

“Be that as it may, I am not by any stretch of imagination suggesting that in appropriate cases and instances where the Senate has acted or taken a decision in accordance with the constitution, its decisions and resolutions must be treated with disdain.

“I also notice, most unfortunately too, that more than ever before, we tend not to appreciate how much more tolerate opposing views; hence the use of harsh, abusive and insulting language by otherwise respected Nigerians.

“This is not right, as nobody possesses the monopoly of knowledge or ideas. This strange development is not also good for the health of Nigeria. Abuse does not improve or enhance any argument. Intolerance is a prelude to full blown dictatorship. I hope we are not inching there!”

On Senator Ndume’s suspension, another SAN, Ahmed Raji, said the senator should challenge the six-month ban in court.

“The Senator is advised to proceed to court to challenge the suspension. Let the court decide the matter. There is no point pontificating over what has a solution,” he said.

On Sagay’s invitation, Raji said: “The Senate is an important arm of government. The Constitution assigns fundamental roles and functions to the body. We should be wary of denigrating such a body in the interest of the entire system.

“This is not to say that there cannot be valid criticisms of their actions in deserving cases. After all, the people elected them.

“There is enough guides in the Constitution and decided cases as to who can be invited by the Senate. If anyone invited feels he should not, he should seek protection from the court.

“The issue of being a judge in once case may not arise because if the Constitution allows it, then it will be an exception to the general rule.

“I think the political class should tread carefully or else they may be unwittingly preparing for a grand class suicide.

“If anything happens to the democracy, the leaders of the world may look the other way and the political class will have themselves to blame forever. A word is enough for the wise.”

Activist-lawyers Femi Falana (SAN) and Mike Ozekhome (SAN) also spoke on the issue but disagreed.

Falana said no legislative House has the power to suspend a member even for a single day.

He said: “The Senate labours under the very erroneous impression that it can do anything, whether allowed by law or not; particularly when it purports to exercising its oversight functions.

“Allegations of crime, certificate forgery, allegations regarding under-payment of Customs duties, are criminal offences that can only be investigated by the appropriate authorities such as the Police.”

According to him, “Section 88, which the Senate always relies on, begins with the phrase: “subject to the provisions of this constitution”, which means the powers of the Police, the powers of the Auditor General of the Federation, the powers of the Attorney General of the Federation, the powers of the President, take precedence over the powers of the Senate to carry out an investigation.

“The Senate with profound respect, the House of Representatives with profound respect, cannot investigate allegations of crime. That is within the constitutional province of the Police.

“In matters regarding some of the distinguished Senators, the court has made definitive judicial pronouncements. Take for instance, no legislative House in Nigeria, can suspend a member for one single day and we have a plethora of authorities on this,” he stressed.

Recalling a similar situation that occurred in 2010, Mr Falana said: “As a member of the House of Representatives, Senator Dino Melaye and 10 others, out of frustration, submitted a petition to the EFCC, alleging criminal diversion of funds by the Dimeji Bankole-led leadership of the House.”

According to him, the Senators had claimed that the House had been terrorised and scandalised and despite the advice given by lawyers to allow the law take its course, as a petition had been sent to the appropriate agency of government, they still refused to take their hands off the case.

“Dino Melaye and 10 others were suspended indefinitely. I went to court for them and the court said: ‘Under your own rules, you cannot suspend a member for more than 14 days – Under what law did you suspend these 11 members of the House of Representatives for an indefinitely period of time?’”

Falana said subsequently, the court ordered an immediate reversal as well as the reinstatement of the senators.

He gave another instance involving the indefinite suspension of a member of the Bauchi House in 2012.

According to him, she was the only female and Christian in the House, consisting of 31 members and her suspension came as a result of a contribution she made, which the men considered as an ‘infra dignitatem’.

The case was however raised in court after a letter written to the House was ignored and the law was properly examined by the High Court as well as the Court of Appeal.

“Relevant constitutional provisions were now determined by the Court of Appeal and the Court of Appeal ruled that no legislative House has the power to suspend a member even for a single day,” he stated.

On Sagay, Falana said the lawmakers had two options if they felt the PACAC chairman’s comments had defamed them.

He said: “You lodge a complaint with the Nigerian Press Council if you believe a newspaper has written something you don’t like, or you go to court to sue for libel. But you can’t use the machinery of the state to harass your political opponents.”

He recalled that in the case of Arthur Nwankwo Vs The State, the governor got a gubernatorial candidate of the People’s Redemption Party (PRP) in the Second Republic jailed in Anambra State for one year during a campaign because he issued a pamphlet which the governor considered libelous.

According to Falana, the Court of Appeal declared it unconstitutional and held that the freedom of expression gained from colonial masters must not be destroyed by anybody and that any attempt to impose a clampdown on Nigerians must be resisted.

But Chief Ozekhome disagreed with Falana. He said: “Falana is wrong, is wrong and is wrong. The entire submission he has made today is to literally castrate the Senate, the twin member of the bicameral National Assembly as if it were no institution at all.”

On the suspension of Senator Ndume, Ozekhome said: “They have the power. The Senate has a self-deodorising mechanism to discipline its members and to discipline outsiders. It is an institution created under Section four of the Constitution to make laws for the peace, order and good government of Nigeria.”

Ozekhome also disagreed with Falana’s contention that the Senate had no power to invite Sagay.

He said: “It has its oversight functions under Sections 88 and 89 of the Constitution to bring to book not only public officials but all persons who had input into matters over which the National Assembly has powers to make law – matters that have to do with corruption with waste, with government or non-governmental affairs.

“And under Section 89, if any person they invite refuses to come they have the power to activate the disciplinary machinery of the police to arrest such a person and bring him to book.

“But in all this, there is an aspect that people have not really looked at when they are discussing about the powers of the Senate. Not everything is contained in the 1999 Constitution, because a Constitution is just an organ that is ever living, being autochthonous, being the fons et erigo (source and origin), it cannot say everything. So there are what we call statutes that will augment the Constitution.

“We have the Legislative Powers and Privileges Act, Laws of the Federation of Nigeria (2004). Under this Act, Section three for example gives the members of the National Assembly, on any matters they do on the floor or within the precinct of the National Assembly total, complete exhaustive immunity.

“Everything they do is absolutely privileged. Section Four of that Act makes it clear that a committee of the House or the House can summon any person, any person. It didn’t say some people, it said any person.

“It didn’t say those elected or not elected, it says any person, to bring papers, bring memos, come with evidence, and that if such a person is summoned to come and answer questions and he refuses to come, under Section Five, the branch of the National Assembly can order the police to arrest and bring such a person, and the police will arrest and bring such a person, and the Senate President or the Speaker of the House, if satisfied that the person has entered into recognizance, can release the person.

“But if not satisfied, can tell them to keep the person there and that such a person when invited can be put under oath to state what he knows about any matter at all. This is different from the provisions of Sections 88 and 89 of the 1999 Constitution.”

Source: nation