Crisis looms from prosecution of Senate president and his deputy for alleged forgery

On 30th June 2016 an article appeared on the front page of the Guardian Newspaper in which it was reported that the Secretary to the Government of the Federation (SGF), Babachir David Lawal, made a statement in reference to the case of forgery brought against the Senate President Bukola Saraki, the Deputy Senate President Ike Ekweremadu, the Clerk of the Senate and his deputy.

Having just celebrated my 85th Birthday I was hoping to enjoy my retirement peacefully but the statement made by the SGF has so roused me from my rest that I feel provoked to react to the statement, which I consider to be the height of absurdity and should not have come from the Secretary to the Government of the Federation. An incompetent statement of this kind should not, in my view, be associated with the high and respected office of the Secretary to the Government of the Federation.

The parts of the said statement that I find absurd and objectionable are as follows: 1.“It is important to emphasise that this case involves only the accused persons and should not be presented to the unsuspecting public as involving the entire Senate of the Federal Republic of Nigeria.” 2. “To bring the National Assembly as a body into this court case is totally unwarranted. It can only be for other purposes and reasons outside the investigations and legal proceedings.” 3. Citing the case of former Speaker Salisu Buhari who forged a certificate showing that he graduated from Toronto University, the SGF said: “what he did was to resign honorably…the individual involved did not drag the entire legislature into the matter.” 4. “The provisions of the separation of powers are entrenched in our Constitution and should guide everyone in our conduct. The rule of law is indeed supreme. This particular case is before the judiciary and is not being decided by the executive arm of the government.” 5. “We should allow the process to take its course in consonance with the dictates of the rule of law and total obeisance to the cardinal democratic principle of the separation of powers.”

The aspects of the Secretary to the Government of the Federation’s statement quoted above manifest ignorance of the principles of law and of the separation of powers involved in this case.

First, the Senate, as an institution, cannot be divorced from its President and his deputy. The two presiding officers personify the Senate which is an abstraction, an artificial entity endowed by law with a legal personality as expounded by the highest court in England, the House of Lords. In an authoritative pronouncement in Lennard’s Carrying Co. v Asiatic Petroleum Co. Ltd [1915] A.C 705, a case in which the managing director of a company was being prosecuted for an offence committed by the company, Viscount Haldane, Lord Chancellor, delivering the judgment of the House of Lords, said: 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 purpose 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 . . . If Mr. Lennard was the directing mind of the company, then his action must, unless a corporation is not to be liable at all, have been an action which was the action of the company itself within the meaning of section 502 . . . It must be upon the true construction of that section in such a case as the present one that the fault or privity is the fault or privity of somebody who is not merely a servant or agent for whom the company is liable upon the footing respondeat superior, but somebody for whom the company is liable because his action is the very action of the company itself (emphasis supplied. See page 206 of Principles of Modern Company Law by Gower)

The Senate President and his deputy are therefore the alter ego, the personification, of the artificial entity, the abstraction, called the Senate which cannot in law be divorced or separated from its President and his deputy. It is therefore the Senate that is being dragged to court in this case.
Second, the prosecution of the Senate President and his Deputy for forgery clearly offends and violates the principle of the separation of powers. The statement by the Secretary to the Government of the Federation speaks glibly about the separation of powers without appreciating its implications and incidents. His statement manifests ignorance of those implications and incidents, which are expounded by the Supreme Court of the United States in Humphrey v. United States [1934] 265 U.S 602: Said the Court : 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 it 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 (emphasis supplied). [Excerpt from page 291 of Constitutional Democracy in Africa, Volume 1, by Ben Nwabueze]

The pronouncement by the United States Supreme Court is very significant in relation to the prosecution of the Senate President and his Deputy for forgery which is an attempt by the Executive to exercise coercive influence over the Senate as personified by its President and his Deputy. It is therefore a blatant assault on the separation of powers whose implications and incidents are expounded in the above quoted pronouncement by the Supreme Court of the United States.

Third, the effect of the prosecution as an assault on, and violation of, the principle of the separation of powers is brought out emphatically by the fact that the prosecution is, not for forgery of the certificate of the individuals being prosecuted, as in the Salisu Buhari case, but of the Standing Rules of the Senate, made pursuant to its power under section 60 of the Constitution to make rules “to regulate its own procedure.”

The Standing Rules are therefore a matter relating to the internal affairs of the Senate. To quote the US Supreme Court again “the sound application of the 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 principle of the separation of powers recognises the Senate as master in its own house, with the power to regulate its internal proceedings by means of the Standing Rules. It makes hardly any sense for the Standing Rules to have been forged by Dr Saraki and Dr Ekweremadu otherwise than in their capacity as President and Deputy President of the Senate respectively.

If those Standing Rules have been forged, as alleged, it is for the Senate, as master in its own house, to decide and, if it so decides, to say what sanctions to impose on the culprits. It is the Senate that elected the President and his Deputy and can vote to remove them from office. The Executive has no right to interfere by using the coercive process of the judiciary which is another arm of the government of the Federation, separate from both the National Assembly and the Executive.

Fourth is the argument based on the power vested in the Attorney General of the Federation under section 174(1) to “institute and undertake criminal proceedings against any person before any court of law in Nigeria… in respect of any offence created by or under any Act of the National Assembly.” This provision calls for two comments. In the first place, the provision of section 174 (1) is part of the law of the Constitution which section 5 (1) of the Constitution empowers the President of the Federation to execute. The Attorney General in the exercise of the power under section 174(1) does so as agent or instrument of the President.

Section 5(1) opens with the words “subject to the provisions of this Constitution” The principle of the separation of powers is a vital part of the Constitution to which the power of the President to execute the law, as well as the exercise of executive powers generally, is made subject. Accordingly, the prosecution of the Senate President and Deputy President is unlawful as a violation of the separation of powers, with all its incidents, as enunciated above.

In the second place, there is a tendency to lose sight of the words in section 174 (1) limiting the power of the AGF to “institute and undertake criminal proceedings against any person before any court of law in Nigeria”. The AGF can exercise the power ONLY “in respect of any offence created by or under any Act of the National Assembly”. The question arising is whether forgery, the offence involved in this case, is an offence created by or under any Act of the National Assembly.

The division of powers under the Constitution with respect to the creation and punishment of criminal offences is one of the most complex and perplexing issues under our federal system. Forgery is created by the Criminal Code or Penal Code, which is “an existing law”. Is forgery under the Criminal Code or Penal Code a federal or state offence, irrespective of whether it relates to forgery of a certificate, the Standing Rules of the Senate or to any other matter?

By sections 315 (1) of the Constitution (1999), “an existing law… shall be deemed to be – (a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws, and (b) a law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws”.

TO BE CONTINUED.
Nwabueze, a constitutional lawyer writes from Lagos