Nigeria’s Senate on trial, Ben Nwabueze insists

    National Assembly
    National Assembly

    Constitutional lawyer and elder statesman, Prof. Ben Nwabueze, has said it is not just the Senate President Bukola Saraki and his deputy, Ike Ekweremadu who are on trial over forgery allegations but the entire Senate.

    This is contrary to the position of the Secretary to the Government of the Federation (SGF), David Babachir Lawal who had said only Saraki and Ekweremadu were on trial.

    The two senior legislators and two others, including a former Clerk are facing criminal charges for allegedly forging the Senate’s Standing Rules in the build-up to the June 4, 2015 inauguration of the Senate and their emergence as principal officers.

    While the SGF said individuals and not the Senate are on trial, Nwabueze disagreed, saying the entire Nigerian Senate is in the dock and that other senators should come out in solidarity with their leaders.

    Nwabueze, a professor of Constitutional Law and former Minister of the Federal Republic of Nigeria, told The Guardian in Lagos that he was ‘provoked to come out’ from his ‘retirement’ and speak on the matter after reading Babachir’s comments.

    While stressing that the prosecution of the leadership of the Senate in a court of law under the Executive amounts to use of coercive influence to interfere in the internal proceedings of the Senate, he said: “It is a flagrant breach of separation of powers caused by ignorance as can be seen in the incompetent statement by the AGF.”

    He said the SGF was wrong in saying that the forgery case had nothing to do with separation of powers and that he has powers to initiate proceedings in any court of law.

    Nwabueze argued that the Executive arm of government has contravened Section 5 of the Constitution of the Federal Republic of Nigeria.

    The constitutional lawyer also cited the U.S.’ Supreme Court in Humphrey v. United States (1934) thus: “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 recognizes 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.”

    Nwabueze took a swipe at the SGF for asking Saraki and Ekwermadu to resign or face trial and for insisting that the Senate as an arm of government should be separated from its principal officers in the matter.

    The senior lawyer said it would be absurd for government to interfere in an internal matter affecting an independent arm of government, especially as the Senate’s Standing Rules is not particularly a public document, only senators should be interested in it.

    Describing the Senate as an abstraction, a legal person without a body, the constitutional lawyer said the Senate President and his deputy as the alter ego personify the ‘hallowed chamber’, just as a managing director is to his or her company.

    He referred to 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.

    The limitation was available only where the injury is caused without the owner’s “actual fault or privy.” The loss was as a result of the default of Lennard, its managing director and Viscount Haldane L.C delivered the judgment of the House in which he held the company liable, by saying that “a corporation is an abstraction with 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 Guardian)

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