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The Senate and its self-regulating powers

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The recent disquiet in the upper chamber of the National Assembly over the suspension of one its own has thrown open the debate on whether or not the Senate or indeed any chamber of the National Assembly has the powers to suspend a fellow lawmaker who is in the National Assembly to represent the interest and aspiration of a given constituency.

Although the suspension whip is seldom applied, the question is whether the senate or the House of Representatives truly has the powers to apply the whip at all.Those who argue that the National Assembly has in-house rules, either by way of the Senate’s Standing Orders or the House Rules, which every member of the National Assembly has sworn to abide with, maintain that any member, who thus steps out of the bound of what is interpreted to be proper conduct, should be flogged into line. Such disciplinary measure becomes the discretion of the other lawmakers, based on the recommendation of the Ethics and Privileges Committee. This is provided for Sections 60 and101 of the constitution, which empowers the National Assembly to regulate its proceedings and procedures.

The recent suspension of Senator Ovie Omo-Agege, representing Delta Central senatorial district has drawn arguments from parliamentarians and legal luminaries on whether the suspension is in order or not.Last Thursday, some guests at the NTA Good Morning Nigeria programme failed to agree on what ought to be. One of the guests, Senator Roland Owie, former Chief Whip of the Senate argued strongly that every association has its own abiding rules by which it disciplines itself, including motor park drivers and even farmers, but some other guests rightly maintained that whatever the in-house rule is, it cannot be in conflict with the ground norms of the land which is the constitution of the Federal Republic of Nigeria.

Senator Owie and all those who argue like him, fail to realise that the Headmaster approach they are applying to the issue has to be tested by the provisions of the law. The fact that a certain people came together and fashioned out some Code of Conduct guide among themselves does not mean that the provisions of that code cannot be challenged against the backdrop of what the superior code (the Constitution of the Federal Republic) says. Just for the sake of argument: assuming a Code of Conduct guide among some drivers says that any driver who drives on the highway without a valid driver’s licence must be stoned to death, and they all endorsed such a code. And then one such member runs fowl of that “agreement”. Is Owie and his ilk saying that because the “offending” driver subscribed to that code he should surrender himself to be stoned to death, just because he belongs to that association? And that the verdict of death should not be challenged against the provisions of the nation’s constitution?

So nothing in the book says the decision of the Ethics and Privileges Committee of the senate cannot be challenged in court, knowing fully well that the provisions of the Ethics and Privileges Committee is nothing but a subsidiary legislature.

What’s more, what is the authority of the Ethics and privileges Committee to truly determine what constitutes “misconduct”? This is not science. What does the Senate’s standing order define or classify as “misconduct”? To insist that the Ethics and Privileges Committee, which is ultimately answerable to the plenary via the Senate President, cannot be challenged, is to elevate the committee to a prosecutor and adjudicator at the same time, which is not permitted in law.

Given all the unseen battles that have gone on between Omo-Agege, the Parliamentary Support Group for President Buhari and the senate cabal led by Senator Bukola Saraki, who would have expected that Omo-Agege’s hen would get justice in the court of fox presided over by Saraki? That was why not many people expressed surprise that the dissolution of the PSG was one of the top recommendations of he Ethics and Privileges Committee.

The late Gani Fawehinmi, in 1981, fought an epic legal war, all the way to the Supreme Court, in challenging the authority of the Legal Practitioners Disciplinary Committee (LPDC) to try him, having established that he was not sure to get justice from the body. The LPDC is to lawyers what the Ethics and Privileges Committee is to the senate.Gani won the case in all the three courts that heard the matter. There is nothing that cannot be challenged in court, if you have your facts and argument in the right kit.

The senate cannot therefore appear to be more Catholic than the Pope. If the entire legal body, in the exercise of its full attributes of legalese, declares that its own subsidiary body, the LPDC cannot try Gani because of his suspicion of bias by its members, why is the senate angry that Omo-Agege is challenging his trial by the Ethics and Privileges Committee knowing that the Senate President does not accord with him on legislative works and holds him and the members of his Parliamentary Support Group for President Buhari in suspicion and contempt?

As Barry Goldwater once declared, “Extremism in defense of liberty is no vice’, just as “Moderation in the pursuit of justice is no virtue”.Senators Saraki, Owie and co must realise that it is not an act of indiscipline if a member of a group decides to challenge or call for a re-examination of the provisions of a code. Law is dynamic. That is why it is open for amendment from time to time. To insist that a law, no matter how anachronistic and unfair, must run according to its letters, is to be both rigid and draconic. None is acceptable in a democracy.

But even if the above argument is stepped down, and the provisions of the Senate’s Order Rules are examined, which section of it recommends that a senator can be suspended for as much as 90 legislative days or 180 legislative days? Where is that stated in the entire labyrinth of the legislative Act?Indeed, by the provisions of the Legislative Houses (Powers and Privileges) Act 2018, a member of a Legislative House who “is guilty of contempt” of that House may be suspended but not more than 48 hours.

What’s more, the Senate Rules in Order 67(4), says a senator cannot be suspended for more than 14 days.So the question is: where did Saraki’s senate derive the power to slam a 180-day (and ‘mercifully’ reduced to 90-day) suspension on a fellow senator?

The fact that Saraki unilaterally halved the period of suspension recommended by the Ethics and Privileges committee, shows the skewed sentiments and arbitrariness in the punishment meted out to Senator Omo-Agege, whilst Saraki tried to appear as being kind.

Is the law being whimsically applied by Senate President Bukola Saraki? Ninety legislative days is almost eight months! What happens to the interest and aspirations of the constituents of such a suspended senator for that length of time? Nobody cares?

That the senate had suspended people in the past and it was unchallenged or that the senate had its way albeit illegally does not make such act right, nor does it make it unchallengeable. It is by no means a sacrosanct act. Nothing indeed is sacrosanct in the eyes of the law.

It amounts to an abuse of power and privilege by a presiding officer in this case, the Senate president, to slam such a harsh disciplinary measure on so-called erring member. Surely, there are other ways of disciplining a member who runs fowl of the code of conduct other than wielding the sledge hammer of suspension so recklessly. Errant members could be reprimanded, removed from being a chairman of a committee, for instance, or could be made to pay some fine or some other punishment. But not suspension! The reasonability of the punishment is as important as its essence.

And as Professor R.A.C.E Achara, a constitutional lawyer had argued, along with the likes of Femi Falana, SAN, Professor Itse Sagay (SAN) et al, the senate or the House of Representatives does not have any power whatsoever to suspend a fellow member, so long as the nation’s constitution does not make provision for it. Any other subordinate law that prescribes suspension will remain what it is before the constitution: a subordinate law, and so it must suffer the override of the constitution.

Is it also not instructive that whenever a member’s suspension is challenged in court, the court has always ruled in favour of the suspended member? And yet the senate never seems to learn? Would the highest law making body of the land be so lawless as not to obey court orders?

Indeed, there are plethora of court judgments that have declared that the senate does not have the powers to suspend any elected member of the legislature, given that the mandate to be in the legislature was derived from his/her constituents. The latest case was that of Senator Ali Ndume (see Senator Ali Ndume Vs the Senate President & Ors FHC/ABJ? CS?551?2017). Justice B. O Quadri heard the case. Although he won the case as expected, it took the court almost the entire length of the illegal suspension for Ndume to get justice in the court.

All said, whilst it is agreed that the senate can self-regulate by applying sanctions to act as check among members, the inalienable rights of members to seek redress, when not satisfied, can neither be abridged nor circumscribed on the banal alter of what has come to be seen as unimpeachable legislative conventions. If democracy must be nurtured and promoted, the grand rules of the game cannot be whimsically treated.
•Agunbiade, a journalist and lawyer wrote from Abeokuta


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