Senate Vs AGF: When To Draw A Line On Separation Of Powers




Montesquieu, an 18th century French social and political philosopher coined the term “separation of powers” or “trias politica” in his book ‘’Spirit of the Laws (1750)’’. This gave birth to the Declaration of the Rights of Man and of the Citizen; a fundamental document of the French Revolution was passed by France’s National Constituent Assembly in August 1789. It is also the corner stone of Constitution of the United States of America, to which the 1999 Constitution of the Federal Republic of Nigeria as amended draws hands outs and lessons.
Under Montesquieu’s model, the political authority of the state is divided into legislative, executive and judicial powers. He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently.
Separation of powers, therefore, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances
The Senate had on March 16, 2017 summoned Ali to appear before it on March 22, 2017 in Customs’ uniform bearing the designation of his office and rank to brief the lawmakers on the policy of payment of customs duty on vehicles.
An on March 22, 2017, briefing by the Comptroller General of Customs and Excise in line with Senate resolution was listed in Order Paper as one of the businesses of the day. The Deputy Senate President Ike Ekweremadu presided over the senate’s plenary session as the Senate President; Bukola Saraki was before the Code of Conduct Tribunal for his trial over false declaration of his assets. Ekweremadu told the Senate after the closed session that a letter was received on Tuesday March 21, 2017 from the Minister of Justice and the Attorney General of the Federation (AGF), Abubakar Malami asking the Senate to stay action on Col. Hameed Ali’s invitation due to a court process on the subject matter of the invitation.
Malami stated in his captioned “Re: Suit Number FHC/ABJ/CS/207/2017. Mohammed Ibrahim (ESQ) Vs Col.Hameed Ibrahim Ali (rtd) & 4 Ors; that, “I wish to formally intimate you that I am in receipt of a letter dated 20th March 2017 wherein I have been served with an originating summons in respect of the above subject matter (copy attached).
“The originating summons is seeking among other declarations “whether the oversight functions of the National Assembly extends to compelling and/ or giving directive to the first defendant to wear uniform.”
“In line with the principles of rule of law, Court decisions or most importantly, the declarations sought have been deeply rooted in the constitutional provisions; I hold the view that this matter is sub-judice.
“In view of the above, it is in the interest of justice and rule of law to stay all actions in this case until the constitutional issues raised in the matters are resolved by the law courts. I wish to further intimate you that as a defendant in the said suit, I intend to file processes and pursue it to a logical conclusion.
“Accept my warm regards’’, Malami concluded.
Reacting to the letter, the senate collectively accused the AGF of trying to stop it from carrying out its legislative responsibilities as enshrined in the 1999 constitution, especially in section 4, 5 and 6 that define separation of powers.
It held that the action of AGF was against Sections 88 and 89 of the constitution which empowers the National Assembly to carry out investigation on any person or authority. Accordingly, the Senate resolved to condemn Malami for attempting to derail it from carrying out its constitutionally assigned duties; and also sending a strong-worded letter to the executive arm of government, with the resolution on Ali attached to serve as deterrent to others who may want to flout the same constitutional provisions.
Specifically, Senator Dino Melaye (Kogi West) said with the doctrine of separation of power, the senate cannot pass resolution directing the courts not to proceed with its constitutional duty. In the same vein, there is no way a court order can be procured to stop the senate from carrying out its constitutional assigned duties.
‘’I want to ask, can a court process be used to stop any arm of government from carrying out constitutional duties? AGF has no such power directing us on how to carry out our duties. What we have is not court injunction but court processes. Our independence is in question; it is being violated with AGF’s letter. Malami’s letter was an insult on the institution of the National Assembly particularly, the Senate’’, Melaye said.
But some senior lawyers, Ade Okeaya-Inneh (SAN) and Mr Alasa Ismail disagreed with the senate, saying its conclusions were mere expressions of political sentiments on the grounds that the Minister of Justice and the Attorney General of the Federation (AGF) is entitled by law to render such advice to the senate.
Okeaya-Inneh said, ‘’mind you, that’s the only ministry accorded a space in the 1999 Constitution as amended. The AGF is the chief law officer of the federation who is enjoined by the Constitution to give his opinion to the senate over a matter pending in the court so that they don’t run afoul of the laws too’’.
‘’If AGF can’t bring it to the notice of the lawmakers that the matter it wanted to investigate is subjudice, who else can do that under our constitutional democracy? You see, the senate’s reaction is either political or mere ego-trip. I think they have lawyers who should have advised them better’’, Alasa said.
It has been argued that while separation of powers is key to the workings of democratic government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities intentionally overlap; they are too complex and interrelated to be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among the branches of government. Since the advent of democratic rule in 1999 in Nigeria, there also has been an ebb and flow of preeminence among the governmental branches.
One would not forget easily the crisis that followed the commencement of investigative hearing on March 14, 2012 on the near collapse of the Nigerian Capital Market, when the chairman of the House committee on Capital Market and Institutions Rep. Herman Hembe (PDP, Benue) accused Oteh of fraud, gross misconduct and financial misappropriation, adding that documents available to the committee showed she used N850,000 for feeding on a day alone, and also spent N30 million on hotel bills. Of course, the next day, on March 15, Ms Oteh opened the Pandora’s Box when she accused Hembe of asking her for a bribe of N44 million.
Oteh insisted that her refusal to give the funds was behind the hostility of the committee to her during the hearing. Because of the allegations, Hembe stepped aside and an adhoc committee was empanelled by the House under Rep. Ibrahim Tukur El-Sudi (PDP, Taraba).
Ms Oteh, who the late President Umaru Musa Yar’adua presented to the senate for confirmation in July 2009, but confirmed in January 2010, six months after ; for the reason that she did not have the requisite experience to head the regulatory authority of Nigeria’s capital market. According to them, a person for the position of DG of SEC must have a 15-year experience in the capital market
The SEC board on June 11, 2012 then chaired by Senator Udo Udomah, ordered Oteh to commence on a compulsory leave to pave way for the investigation of alleged graft in the SEC Project 50. The Board was investigating her for alleged questionable handling of the funds realised from Project 50, an event the commission organised in 2011.
> However, former President Goodluck Jonathan ordered for Oteh’s re-instatement 24 hours after a committee set up by the House submitted its report indicting Ms. Oteh of misconduct and fraud. According to a letter by Anyim Pius Anyim, the then Secretary to the Government of the Federation, Oteh was never indicted for fraud.
> “The purpose of this letter is to recall you from your leave and to caution that you must henceforth endeavour to diligently observe all extant rules and administrative procedures in the conduct of all transactions’’, Anyim wrote.
> A general assembly of the House upheld the recommendation of its ad-hoc committee, urging Ms. Oteh’s removal on account of incompetence, and her investigation on allegations of fraudulent conduct. Her appointment, the lawmakers said, contravenes sections 3, 38, and 31 of the Investment and Security Act, 2007, which requires the head of the SEC to put in 15-years’ experience in the Nigerian capital market before appointment.The House also directed that its decision be served on the executive arm, and be implemented by the Federal Government.
> The Senate also its weight behid the House and insisted that she must be relieved of her job, saying President Goodluck Jonathan is on his own by retaining Oteh. In a statement by its Committee on Capital Market, the Senate aligned with the resolution of the House of Representatives that the SEC chief be sacked.
The statement reads: “You will recall that the House, few months ago, set up an Ad-Hoc Committee, which investigated the near collapse of the Nigerian Capital Market. Consequently, the House passed a resolution based on the report that the President should sack the Director-General (SEC), Ms. Aruma Oteh. The House further resolved that should the President fail to comply with its resolution, the House would cease to accord any recognition to the SEC DG.
“You are also aware that instead of complying with that resolution, the SEC DG was reinstated in flagrant disregard of the resolution. Again, on resumption from recess last month, the House reaffirmed its earlier resolution and gave a 14-day ultimatum for compliance. Till date that ultimatum has been ignored. Consequently, the Senate Committee on Capital Market, at its meeting on September 26, 2012 considering this and other matters at the Commission, resolved to support the position of the House that Ms Oteh be removed forthwith’’, the senate said.
The Senate Committee said it would not have any dealings with Ms. Oteh, just as the House had resolved, and consequently both chambers refused to appropriate fund for the SEC. Yet, ex-President Jonathan kept to his point and left Oteh on her seat.
On Tuesday, August 13, 2002, the House of Representatives gave the President (Chief Olusegun Obasanjo) an ultimatum to either resign within two weeks or be impeached. Their grouse, as reported in the newspapers, was because of Obasanjo’s incompetence and abuse of office.
The near unanimous vote of no confidence against the president, as signified by the ultimatum was not just startling because the motion was moved by an opposition All People’s Party (APP) lawmaker, and most of the lawmakers from the then ruling People’s Democratic Party (PDP), including the Speaker of the House, Umar Ghali Na’abba endorsed and voted in favour of it.
On the other hand, the senate through Senator Udoma Udo Udoma on August 16, 2002 warned Obasanjo to stick to the letters of the 2002 Appropriation Act or face its wrath when it reconvenes on August 27, 2002. They also cautioned the presidency not to unilaterally amend the 2002 Appropriation Act or indeed any other law duly passed by it.
It is worthy of note that as previously said, separation of powers is not absolute in the Nigerian situation. There are inbuilt mechanisms to curb the excesses of a particular arm of government. For example, the executive is involved in the appointment and removal of judges as contained in Sections 292 & 231 of the 1999 Constitution as amended. Also pursuant to Section 58(3) of the 1999 Constitution as amended, before a bill can be passed into law, it has to be assented to by the president.
The legislature on the other hand pursuant to Section 147 of the 1999 Constitution as amended performs executive functions by confirming appointees of ministerial positions. It is also the custodian of the revenue of the federation according to Sections 80 and 81 of the 1999 Constitution as amended. The judiciary, through the power of judicial review checks the activities of the other arms of government.

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