Constitutional lawyer, Ben Nwabueze, has taken a break from retirement to rail at the executive arm of government for trying Senate principal officers in court over an allegation that, even if it were true, is an internal affair of the Senate.

He used the words “absurd” and “incompetent” to describe the comment by the Secretary to the Government of the Federation (SGF), David Lawal Babachir, that Senate President, Bukola Saraki, and Deputy Senate President, Ike Ekweremadu, do not personify the Senate.

Saraki, Ekweremadu, and two other senior staff of the Senate bureaucracy are facing criminal charges for allegedly forging Senate Standing Rules in the build-up to the inauguration of the Senate on June 4, 2015 and their emergence as principal officers.

Lawal issued a statement penultimate week accusing “the two leaders of the Senate” of creating the “erroneous impression that by their arraignment, it is the entire Senate and indeed, the legislative arm of government that is on trial.”

He accused them of trying to hoodwink Nigerians into believing “that their prosecution is in utter disregard by the executive arm of government for the constitutional provisions of separation of powers and that preferring the forgery case against them is a vendetta exercise.

“It is important to emphasise that this case involves only the four accused persons and should not be presented to the unsuspecting public as involving the entire Senate of the Federal Republic of Nigeria.”

Babachir claimed that a case of alleged forgery cannot be preferred against an institution but against individuals.

“To bring the National Assembly (NASS) as a body into this court case is totally unwarranted. It can only be for other purposes and reasons outside the investigation and legal proceedings.”

But Nwabueze told TheNiche in an interview in Lagos that Babachir’s comment was “the height of absurdity and totally incompetent” and betrays “the degree of ignorance that should not be associated with the high office of the Secretary to the Government of the Federation.”

Nwabueze, 84, the oldest Senior Advocate of Nigeria (SAN), said the absurdity of Lawal’s take on the sage so upset him that he was provoked into coming out of retirement.
He advised federal lawmakers to collectively confront what he called incipient dictatorship to save Nigeria’s democracy.

“I urge members of the National Assembly to keep away partisan politics in all this. This matter transcends partisan politics. It is our democracy, our Constitution that are in danger.

“They should appreciate this and come together to try and prevent the looming danger.”

Senate president personifies Senate

Predicating his position on four issues, Nwabueze said: “The first one is the claim by the SGF that it is the individuals and not the Senate that are involved. This statement is the height of absurdity and totally incompetent.

“It is incompetent because he does not understand that the Senate is an abstraction. It is a legal person but without a body.

“It is personified by the Senate president and deputy Senate president. They are the alter-ego of the Senate like it is in any company.

“The managing director of a company is its alter-ego because it is an abstraction, a legal person without a body.”

Insisting that his position is established by authority, Nwabueze recalled the celebrated speech of Lord Haldane in Lennard’s Carrying Co. v. Asiatic Petroleum Co. Ltd in 1915 in which a company which owed a ship was seeking to take advantage of the limitation of liability under Section 502 of the Merchant Shipping Act 1894.

“In a case where the managing director of a company is being prosecuted for a criminal offence committed by the company and the matter was fought all the way to the highest court in Britain, the House of Lords and the Lord Chancellor, Lord Viscount Haldane L.C. said in delivering the judgment of the court in the case involving Lennard’s Carrying Co. v. Asiatic Petroleum Co. Ltd. in 1915:

“My lords, a corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation.”

Nwabueze argued that Babachir’s assertion flies in the face of the ruling, which became known as the “Organic Theory.”

“The Senate president and the deputy Senate president are the alter-egos of the Senate. Just like the corporation or a company, the Senate is an abstraction.

“It is a legal person but an abstraction. It has no body and no mind and the body of that abstraction called Senate is the Senate President.

“Who are really the directing minds and will of the Senate? They are the Senate president and deputy Senate president. They are the alter-egos, the personification of the Senate.

“So, to say that the whole Senate is not involved is complete nonsense. The man (Lawal) simply doesn’t understand what the legal position is. And that is why I said it is an absurdity. It is an incompetent statement coming from the SGF.

“It shows that they don’t understand anything. If he can sit there and make this kind of statement, without understanding the implication, that is unfortunate.

"The Senate president, his deputy and, indeed, the clerk of the Senate embody and personify the abstraction called the Senate. So, you cannot divorce the two.

“The Senate president is the Senate and if you drag him to court, you are dragging the Senate to court. He is the personification of the Senate. So, this is not the kind of statement that the public should be fed with by somebody who occupies the position of SGF.”

Absurdity of forgery allegation

Nwabueze said the second absurdity in Babachir’s claim is the forgery allegation itself.
He insisted that the allegation in itself does not make sense.

“What will the international community say of us? That the president of the legislative arm of government is being prosecuted in the court for forgery of all offences?

“This is really something that should not be said of Nigeria, the leading light in Africa, that the president of our legislative arm of government is being accused of forgery. Does it make sense?

“And Lawal says it is about individuals. Can an individual really be involved in the forgery of Senate Standing Rules? Have you ever seen it? Ninety-eight percent of Nigerians have never seen it. They have no access to it.

“And so, the question of anyone, any private person, forging the rules cannot make any sense. It is not possible.

“Saraki and Ekweremadu can only be said to forge the Standing Rules in their capacity as president and deputy Senate president. That is the only capacity that it will make sense or while acting in that capacity.

“So, how can the SGF now claim that they are being prosecuted in their private capacity for an offence they could only have committed in their official capacity?

“So, what they did in their capacity as president and deputy Senate president cannot be divorced from the Senate. They did so as presiding officers of the Senate.

“So, don’t tell us that the Senate is not involved. The individuals didn’t act as private persons. They acted as Senate president and deputy Senate president and clerk of the Senate.

“To say otherwise is an absurdity which so upset me. It provoked me into coming out of my retirement.
“How can anybody make this kind of incompetent argument that betrays his ignorance and that of the executive? That statement should never have come from the SGF.”

Principle of separation of powers

Nwabueze also questioned Babachir’s contention that Saraki’s prosecution by the executive for an action he purportedly took in his capacity as a presiding officer of the Senate does not rub off negatively on the principle of separation of powers.

“That shows he doesn’t understand what separation of powers is about. What are the implications of separation of powers? What are the incidents of separation of powers?

“They don’t understand and they don’t care. They don’t take the trouble to understand what it all means, the fundamental principle of our law.”

Nwabueze argued that the executive arm of government has contravened Section 5 of the Constitution by the arraignment.

He cited the ruling of the United States Supreme Court in Humphrey v. United States (1934) to buttress his point.

The ruling said: “The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question.
“So, much is implied in the very fact of the separation of the powers of these departments by the Constitution, and in the rule which recognises their essential co-equality.
“The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there … the independence of each department requires that its proceedings ‘shall be free from the remotest influence, direct or indirect, of either of the other two powers."

According to Nwabueze, "This is the implication of the principle of separation of powers. Prosecution in itself is a coercive process. You want to use the coercive power of the courts to influence the proceedings in the Senate.

“You want to send the Senate president and deputy to prison for forgery if this prosecution succeeds. That is what they are trying to do.

“Can you really imagine this, in a system where there is separation of powers, where the implication includes that you must not impose your control or influence, even the remotest influence, on the other, and we maintain the principle of co-equality?

“You cannot use coercive influence and the most visible, concrete coercive influence is prosecution in the courts.”

No comparison with former House Speaker Salisu Buhari’s certificate forgery

Nwabueze also said it was wrong to equate the alleged forgery of the Senate Standing Rules with the certificate forgery by former House of Representatives Speaker, Salisu Buhari.

“They are completely different issues. We are talking about forgery of the Standing Rules of the Senate, not the standing rules of the executive. Whatever your rules may be, keep your rules. That is the spirit of the principle of separation of powers.

“Standing Rules is for the regulation of the proceedings of the Senate. Section 60 of the Constitution gives the National Assembly – the Senate and House of Representatives – power to regulate its own proceedings.
“It is in pursuant of this that the Standing Rules were adopted to regulate the proceedings. So, it is the internal affairs of the Senate.

“So, what is the business of the executive claiming that it was forged? If there is forgery of the rules, it is for the Senate to say, not for the SGF. It is for the Senate to say our rules have been forged and for the senators to say what sanctions to impose on those who forged the rules.

“The Senate can then resolve, since it is the senators that elected the president and his deputy and appointed the clerk; so it is for them to say, no, we voted you in and we will vote you out for forging our rules assuming that there has been forgery.

“It is not for the executive to dictate what is to happen there. That is a flagrant breach of the Constitution, of the principle of separation of powers caused by ignorance because this man (Lawal) does not understand.
“That is why he made the incompetent, absurd statement.”

On attorney general’s powers to prosecute

Nwabueze added: “Then the fourth aspect of this whole matter is the statement made by the Attorney General [Abubakar Malami] that he is empowered under Section 174 (1) of the Constitution to undertake and initiate criminal proceedings in any court of law, faulting the argument of the Senate that what transpired was an amendment.

“But Section 5 (1) of the Constitution says that, ‘Subject to the provisions of this Constitution, the executive powers of the federation shall be vested in the president and shall extend to the execution and maintenance of this Constitution.’

“All laws made by the National Assembly shall extend to the maintenance and execution of the Constitution.
“The execution of the laws of the Constitution which includes prosecution under Section 174 (1) means that the AG is merely an instrument of the president. So, prosecution is part of the executive power vested in the president by Section 5.

“But how can people lose sight of the fact that that power, as enormous as it is clearly stated to be, is still subject to the provisions of the Constitution?
“It is subject to the separation of powers. You must exercise that power of criminal prosecution subject to the provisions of the Constitution, including particularly the separation of powers with its incidents and implications.

“You cannot because Section 174 says you can initiate criminal proceedings against people do it in disregard of separation of powers.
“You must exercise it subject to the separation of powers, subject to the co-equality between the arms of government, subject to the freedom of each arm of government from coercive influence and control.
“It is at variance with the constitution if you think you can just drag the Senate president and deputy Senate president to court because you have powers to prosecute.”

IGP has nothing to do with it

Nwabueze also knocked Malami’s claim that he acted on the recommendation of former Inspector General of Police [Solomon Arase] wondering what the IGP has got to do with it.
“What is coming out from the executive arm is ridiculous and absurd.”

Nwabueze said Nigeria is in the grip of dictatorship but averred that the people have themselves to blame for refusing to learn from history.

“An incipient dictatorship is here through the perversion of the Constitution. We forgot what [former President Olusegun] Obasanjo did to us and God saved us.
“And yet we elected a former military commander, a former head of the federal military government president. We have no right to complain. We should have known that this is what was coming and it has come. It is only beginning to unfold.”