Date: 2016-07-12

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