Justice Gabriel Kolawole of the Federal High Court has said the alleged Standing Orders forgery is the Senate’s internal affair. But, to the Inspector-General of Police and the office of the Attorney-General of the Federation (AGF), the issue is beyond the Senate. To them, a criminal allegation of forgery cannot be termed the legislature’s internal affair. ERIC IKHILAE examines the issues.
Can a criminal allegation of forgery be validly treated as an internal af-fair of the Senate? Are legislators immune from investigation under the Legislative House (Powers and Privileges) Act? Can the police be restrained from investigating criminal allegations against citizens on the sole ground that they are members of the National Assembly?
These are some of the questions awaiting the decision of the Federal High Court in Abuja.
The suit numbered FHC/ABJ/CS/646/2015 and filed on July 23 by a Senator representing Enugu East Senatorial District, Gilbert Nnaji, is in relation to the allegation that the Senate Standing Orders 2015 was forged.
It was alleged that Senate’s 2011 Orders was secretly altered by some individuals to produce the 2015 edition.
The alleged forgery relates to alterations to Rules 3(3)(e) and (k), which were said not to have been amended in accordance with the provisions of Rule 110 (1)(2)(3)(4)(5) of the 2011 Orders.
While the 2011 Order Rule 3(3) (e) talks about manual voting and open ballot, the 2015 Orders allows electronic and secret ballot voting in the election of the President and Deputy.
Also, while Rule 3(3)(k) of the 2011 Order makes it mandatory for all members to participate in the process of electing the President and Deputy, the reverse is the case under the 2015 Orders.
The 2011 Orders, Rule 3(3)(k) provides that: “All Senators-elect shall participate in the nomination and voting for President and Deputy President of the Senate,” similar provision in Rule 3(3)(i) in the 2015 Orders reads: “All Senator-elect are entitled to participate in the voting for Senate President and Deputy Senate President.”
Nnaji’s claims
Nnaji is, by his suit, seeking primarily to ensure that the allegation of forgery in the production of the Senate Standing Rules 2015 (as amended), on which basis the Senate elected its current President and Deputy President, be treated as an internal affair of the Upper Chamber of the National Assembly and consigned to the past.
It is his contention that, by virtue of the provisions of Section 30 of the Legislative House (powers and privileges) Act Cap L 12 Law of Nigeria, Sections 50(1) and 60 of the Constitution, activities and actions of the National Assembly cannot be inquired into by other arms of government within the context of the principle of separation of powers.
Nnaji, who did not address the legitimacy or otherwise of the controversial Senate Standing Rules 2015, wants the court to restrain the Inspector-General of Police (IGP) and the Attorney-General of the Federation (AGF), who are listed as defendants, from further investigating the allegation and taking steps to prosecute those found culpable.
The plaintiff stated, in a supporting affidavit, that although he first saw the controversial Standing Rules 2015 at the inaugural sitting of the Senate on June 9, 2015, the questions regarding its production were resolved during the Senate’s sitting of June 10 and 23, with the Senate President and Deputy, Abubakar Saraki and Ike Ekweremadu presiding. Saraki, Ekweremadu and other principal officers of the Senate are seen as major beneficiaries of the alleged forgery.
He further stated that the decision by the IGP to investigate the case, already settled in-house by the Senate, was targeted at the Senate leadership, particularly Ekweremadu, representing Enugu West.
Some of the reliefs he sought include: “An order of injunction restraining all the defendants, their agents and servants from taking any further steps or interfering in whatever manner with the legitimate duties of the Senate of the National Assembly, whether acting on their own volition or upon any written instrument from whatever source, particularly over the emergence of the leadership of the Senate in respect of its proceedings of June 9, 2015.”
Section 30 of the Legislative Houses Powers and Privileges Act (LHPPA) provides: “Neither the President or Speaker, as the case may be, of a Legislative House nor any officer of a Legislative House shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in him by or under this Act or the standing orders of the Legislative House, or by the Constitution.”
Section 50(1) (a) of the Constitution states that: “There shall be:- a President and a Deputy President of the Senate, who shall be elected by the members of that House from among themselves.”
Section 60 provides that: “Subject to the provisions of this Constitution, the Senate or the House of Representatives shall have power to regulate its own procedure, including the procedure for summoning and recess of the House.”
Justice Kolawole’s position
On August 4, Justice Gabriel Kolawole of the Federal High Court, Abuja, who had ordered the defendants to show cause why he should not grant the plaintiff’s ex-parte prayer for interim restraining orders against the defendant was of the view that the allegation that the Senate’s Standing Rules 2015 was forged was internal to the Senate which it should be allowed to deal with by deploying its internal mechanisms.
Justice Kolawole said the involvement of the police in the case amounted to the National Assembly allowing other arms of government to supervise or regulate its internal proceedings.
He threatened to void the investigation report produced by the police, which is now before the office of the AGF for further actions, should he find that the defendants took steps in relation to the issue after Nnaji had approached the court.
The judge’s positions were contained in a bench ruling he delivered on whether he should proceed to grant the interim orders sought (as canvassed by plaintiff’s lawyer, Peter Nwokolo) or first decide the issue of jurisdiction raised by the defendants in their preliminary objection.
”My view is that in relation the instant suit, the allegation which relates to the alleged forgery of the Rules of the National Assembly is not an ordinary allegation which the court can approach with a pedantic mindset. It is so, because the issues as relating to the Senate Rules or Standing Orders are firstly the internal domestic matters.
“But where allegation of forgery is made, it is for the court to reflect deeply whether it is not an allegation which the Senate’s Committee on Rules and of its Ethics can validly investigate and, within its internal proceedings nullify any of its Standing Orders found to be irregular and, to also sanction any of its members that is found culpable.
One of the sanctions is to recommend such a member or members to the defendants for prosecution.
“These are my thinking as a way to protect the integrity and independence of the National Assembly so that neither the Executive arm (as constituted by the defendants) nor the Judiciary should be allowed to pry into a matter which the National Assembly, as a legislative arm of government, can deal with, applying its own Rules and Standing Orders.
”This is to ensure that a dangerous precedent is not being set for the National Assembly, to have its internal proceedings being regulated, perhaps supervised by other arms of government of the federation (i.e. the Executive and Judicial Arms). “
Defendants disagree
But, in their separate notices of objection, the defendants disagreed with the judge. They are of the view that the allegation of forgery was criminal in nature, which only the police, created under Section 214 of the Constitution, and acting pursuant to its powers under Section 4 of the Police Act, could validly investigate, without being hindered by the court.
IGP argued that the Senate Standing Orders 2015 forgery allegation was a criminal issue on which the police could not be restrained from investigating. He said the issue, which affects the integrity of the National Assembly and the country, was beyond what could be left for the Senators to address, deploying their internal mechanisms.
Also, the Office of the Attorney-General has said it was in receipt of police’s investigation into the allegation and would begin its execution soon. It queried the powers of the court to restrain either the police or the AGF from performing their statutory responsibilities.
IGP’s stance
The IGP stated that from the investigation so far conducted, it has been discovered that the Senate was operating on a forged Standing Orders because there was no evidence that the 2011 Orders were ever amended before the introduction of the 2015 Orders.
He said:“The matter at hand is not simply an issue on the floor of the National Assembly, the matter at hand raises issues of criminality. The 1st defendant owes Nigerians the duty to unearth the truth behind the allegations of forgery.
“There are allegations of forgery of the Senate Standing Orders against some principal officers of the Senate. It is these allegations that the 1st respondent is poised to investigate. Forgery is a criminal Allegation. It is only investigation that can prove whether the case of forgery is true or false.
“There was no time the current Senate sat to pass the 2015 Standing Orders. Senators were, at the inauguration, just handed a document from the blues titled: Senate Standing Orders 2015 (as amended). “
He went on:“There was never any amendment of the 2011 orders by the immediate past Senate. Certain orders of the said 2015 amended Orders are inconsistent with the 2011 Orders. “There was never a notice written, calling for such amendment. Senators, who are complaining were never consulted before any such amendment.
“The first defendant has a duty and responsibility to investigate all allegations of crime. To determine whether allegations of forgery are made out, who committed the said forgery and if there is forgery at all in the first place.
“Investigating the allegations and determining the culpability or otherwise of the alleged culprits will lead to a just conclusion of the matter. Non-investigation of the allegations will engender mistrust among the disputing sides.
“The first defendant is neutral in this matter. It has not taken sides, will not take sides and does not take sides on issues of this nature at all. Every Nigerian citizen can be investigated in all civilised countries, Nigeria inclusive.
“Investigating allegation of forgery can only strengthen the integrity of the Senate and the Senate leadership. The 1st defendant’s duty will be impeded by the grant of the reliefs sought,” the IGP said in his counter affidavit to the plaintiff’s motion for injunction.
In faulting the competence of the suit, the IGP faulted the plaintiff’s reliance on Section 30 of the LHPPA, noting that Nnaji is not the Senate President, the Deputy Senate President, the Speaker of the House of Representatives, the Deputy Speaker of the House of Representatives, nor is he an officer of the Senate.
He added that the plaintiff is not aggrieved, he is not interested in this matter and that he is not accused of forging the amended Senate Standing Orders.
On whether the alleged forgery amounted to an action taken by the Senate in the course of performing its legislative function, which is covered by the LHPPA, the IGP argued that the allegedly act of forgery predated the 8th Senate as the plaintiff cannot prove that the 2015 Standing Orders was passed by the preceding Senate, because the 2015 Standing Orders was never made nor passed by the immediate past Senate.
“The new Senate has not passed any Standing Orders. As at the time of inauguration of this present Senate, no Standing Orders had been made. The practice is that, at inauguration, the incoming Senate uses the Standing Orders of the preceding Senate. The immediate past Senate did not amend the 201 Standing Orders. The 2011 Standing Orders have not yet been amended.
“It is the 2011 Standing Orders of the Senate that should be used. The former Senate President did not pass any 2015 Standing Orders. The present Senate President was not in a position to have passed the 2015 Senate Standing Orders before his inauguration. The extant Senate Standing Orders are the 2011 Orders.
“It is only after inauguration that the current Senate could pass the Standing Orders. What he (the plaintiff) is bandying about is not an authorised Senate Standing Orders. The so-called 2015 Senate Standing Orders are forged.
“It is at the conclusion of investigation that 1st Defendant can determine whether the Standing Orders are founded or unfounded. There are two Senate Standing Orders; one 2011 and the other, 2015. The 2011 Orders were used to govern the immediate past Senate,” the IGP said.
He argued that the court cannot grant the plaintiff’s prayer to restrain the police from performing its statutory responsibility of investigating allegations of criminal conduct.
He relied on the case of Hassan vs EFCC 2014, 1 NWLR (pt 1389) at 631 where it was held that “no court has the power to stop the investigation powers of the police or EFCC or any agency established under our laws to investigate crimes, whether there is reasonable suspicion of commission of crime or ample evidence of commission of an offence by a suspect.
Relying on the case of Fawehinmi vs IGP 2002, 7 NWLR (pt 767) at 606, the IGP argued that principal officers of the Senate cannot hide under Section 33 of the LHPPA to claim immunity from investigation. He noted that, in fact, Section 25 of the LHPPA supports his position on the issue.
Section 25 states: “Any person who prints or causes to be printed a copy of any Act or law now or hereafter in force, or a copy of any report, paper, minutes or votes or proceedings of a Legislative House as purporting to have been printed by the Government Printer or by or under the authority of a Legislative House or by the President or Speaker, as the case may be, of a Legislative House, and the same is not so printed, or tenders in evidence any such copy as purporting to be so printed having reasonable cause to know that it is not so printed, shall be guilty of an offence and shall be liable on conviction to a fine of two hundred naira or imprisonment for twelve months or to both such fine and imprisonment….”
The IGP further stated that the court can only intervene where there are allegations that the police have wrongly applied its powers.
AGF’s position
The AGF argued, in its objection, that the plaintiff lacked the locus standi (right to sue) to initiate the suit. It noted that by his averments, Nnaji has betrayed his true intention, which is to protect the Deputy Senate President, Ike Ekweremadu.
It contended that it was only Ekweremadu and others, who feel their interests or rights would be affected by police investigation of the forgery allegation that could validly sue.
“We submit that the plaintiff can only seek declarations in court if he can establish that he has suffered or is going to suffer any injury on account of the investigation. This is a suit that should rightly be instituted by the Senate as an entity or, better still, by Senator Ike Ekweremadu, whom, by the plaintiff’s affidavit, at paragraph 27, identified as the ultimate target of the petition.”
The AGF argued that the court lacked the powers to “validly restrain other departments of government from carrying out their functions. The law is trite that where the plaintiff lacks the locus standi to institute a matter, reliefs and orders sought cannot stand.”
Observers are of the view that since the case will no longer be heard by Justice Kolawole, who has since ceased to act as the court’s vacation judge, there will be no need for the defendants, who have objected to his position on the issue in dispute, to apply for a transfer or appeal or file an appeal.
It was the position of some senior lawyer, who would not want to be named because the case was in court, that the issue of forgery cannot be rightly be termed an internal affair of any institution. They urged the court to be steadfast and stand up to protect the country’s democracy and the integrity of its institution.
The leader of a group, the Integrity Watch, Nigeria (IWN) Abdullahi Sariki, said this was not the time for the Judiciary to turn its mind against the mood of the society. He said the Judiciary must support all efforts to unravel the mystery behind the controversial Senate Rules 2015 in the interest of the nation’s democracy.
“We cannot because we want to allow societal peace, let some of these infractions to go like that. The Senate is an important institution in every democracy. So, we cannot afford to hand its leadership to people who are products of a forgery. It is better we dismantle this faulty foundation and rebuild than attempt to manage this faulty one. Of course, you know the consequences of a faulty foundation,” Sariki said.
