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The Senate versus Malami on Section 174 (3)

By Tope Ajayi
17 July 2016   |   1:52 am
Malami’s explanation was that he instituted the suit against the Senate presiding officers based on police investigation done before his appointment, adding that he acted in public interest.
Senate President, Bukola Saraki and his Deputy, Ike Ekweremadu.

Senate President, Bukola Saraki and his Deputy, Ike Ekweremadu.

After playing the hide and seek game for several weeks, Attorney General and Minister of Justice, Mr. Abubakar Malami last Wednesday decided to heed the invitation by the Senate for him to shed light on whether he acted in public interest and without abusing his office in a conflict of interest situation while filing forgery charges against the two presiding officers of the Senate, Senate President Abubakar Bukola Saraki and his deputy, Ike Ekweremadu and two other bureaucrats.

Like the typical politician that he is, Malami first paid a surprise visit to the chairman of the Senate Committee on Judiciary and legal matters, Senator David Umaru on Tuesday to test the waters and also water the ground so that he could have a soft landing after grand standing that the Senate had no powers to invite him. His decision to make all the reconciliatory moves and the eventual heeding of the invitation came after his hired writers in the newspapers failed to convince members of the discerning public that the law was on his side in his earlier claim that only the President who appointed him could summon him for explanation on actions he took in the course of his duty as the nation’s chief law officer.

When I said Malami’s visit was part of the political maneuver, I was conscious of the fact that in the build-up to the 2007, 2011 and 2015 elections, Malami sought the governorship of his home state, Kebbi, and while he failed to get the ticket on the platform of the ANPP and CPC in the first two attempts, he looked good to clinch the APC ticket in 2015 until the defection of the new PDP members into APC which enabled present Governor Atiku Bagudu to beat him to the ticket. So, Malami knows the game of dribbling very well.

When he eventually got to the Senate committee hearing on Wednesday morning, Senator Umaru spelt out the rule of the engagement. “We are not going into the issue of forgery. It is not our mandate. We feel that the AGF owes a duty to the Senate and citizens of Nigeria to know if that power was exercised in public interest without any abuse. The AGF has the power to institute or discontinue any criminal proceedings. We want to know if the AGF considered public interest. This is why we are here”, he said.

Therefore, the issues that the AGF was to address were whether in exercising his powers under Section 174 (1) of the constitution, he took into consideration the demand of sub-section 3 of the same document. He was also expected to address the issue of conflict of interest arising from his position as a personal lawyer to one of the parties in the civil suit arising from the same matter in which he later filed criminal proceedings in his official capacity as AGF. It was also expected that he would address the issue of why he as a member of the executive feels he should pry into the affairs of the legislature when the same constitution states that the National Assembly shall regulate its own internal affairs.

The AGF however, had decided he would give general explanations and avoid answering the questions specifically, after all he could conveniently hide under the claim that the matter is now subjudiced and he as a lawyer should avoid commenting on it. He forgot that when a matter is of public interest as the case under consideration is, even the court does not frown on fair comments.

Malami’s explanation was that he instituted the suit against the Senate presiding officers based on police investigation done before his appointment, adding that he acted in public interest. While declining to answer questions on why Saraki and Ekweremadu who were not mentioned in the police report were being charged with forgery, he said, “It is an act that predates my appointment. There are series of suits. …The National Assembly has the powers to regulate its own procedure.

But the basis for filing my case was that the position taken was not that of the Senate. The Senate Standing Order allegedly amended in 2015 did not follow the traditional way of amendment. That is where my quarrel comes in. If there are certain persons that did not allow the process of amending the Senate Standing Rules go through the constitutional process, we have a responsibility to act by way of initiating a criminal proceeding against those involved. The public interest and the need to ensure that no abuse is allowed, I have to take step to prevent that”.

What the AGF’s submission quoted above means is that the executive has decided to cry more than the bereaved. The Senate in its votes and proceeding of June 2015 had stated that its rules and standing orders were not forged. By this act, it has endorsed what the bureaucracy prepared and handed to its members on June 9, 2015. What this means is that the AGF is telling a man who presented his own signature that the signature is forged when the man maintains that that is his original signature.

Is it possible for the AGF to tell the Senate how to regulate its own affairs? The position of Malami raised the question as to whether he was just acting the script of the aggrieved Senators who having failed to get their candidates elected as Senate President and Deputy Senate decided to externalise and criminalize an internal affair of the Senate. And since the AGF is one of the lawyers they hired and got on their payroll prior to his appointment, he decided to do the bidding of the aggrieved Senators by taking the issue to court under his powers as provided under Section 174 (1) and (2) of the constitution. At the Senate hearing, the AGF refused to address the issue of conflict of interest.

It is also obvious from Malami’s explanation quoted above that he believes the Senate must necessarily carry over the rules from one Senate to the other, for example from the seventh Senate to the eighth Senate until it is ‘properly’ amended. He did not advert his mind to the fact that the rule of a Senate dies with that Senate and a new Senate is inaugurated with a draft rule given by the bureaucracy. The new Senate can amend the draft rule if the members so believe. Otherwise, the Standing Order can simply be adopted and retained as it is in the instant case.

The issue of Separation of Powers and the ruling of Justice Gabriel Kolawole of the Federal High Court, Abuja, on the inappropriateness of the action of the AGF and the fact that the forgery case is an abuse of office and court process also seem not to have persuaded the AGF. Malami seems more concerned in asserting his powers to institute criminal cases. However, one needs to remind him that the extent of his powers is not in doubt. The manner and motive of his exercising that power is what is being questioned. We wait for the verdict of the court while hoping that no attempt will be made to intimidate or goad the judge to force the direction of judgment in certain direction.
.Ajayi writes from Lagos