Senator Kuta's Panel and limits of parliamentary power of inquiry

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Wednesday, August 9, 2000 SEARCH NIGERIAWORLD Match All TermsAny Term    Francis Nnamdi Elekwachi  asaweze@primus.com.au

As the Senate considers the Senator Kuta Panel's report it is urged, in the interest of democracy, to uphold the separation of power provisions in the Constitution and refer these matters to the Executive and the Judiciary to be dealt with according to the law and the Constitution of Nigeria 1999. One major issue raised by the Senate contracts' scandal is the limits of the Senate's power to inquire into criminal matters and/or the limits of Parliamentary inquiry powers generally and under the Constitution. This issue and related matters fall generally under Parliamentary Privilege. The position of the law, custom, convention and practice in this area seem to be quite settled. This article will summarise the law of Parliamentary Privilege and Inquiry, followed with a brief analysis of the issues in Alhaji Buhari's case (former Speaker of the House of Assembly), then the current case involving Senate President Dr Okadigbo and other Principal Officers of the Senate, before finally comparing both in order to demonstrate that the Senate is exceeding power in the current exercise. Current law of Parliamentary Privilege and inquiry. Parliament is supreme over all other arms of government. It makes laws by enacting Statutes, which once enacted binds all, including its Members and the Parliament itself as an institution of government. Every citizen is equal before the law. Members of Parliament are not immune from prosecution for criminal offences they commit. Exercise of power by any arm of government (including Parliament) is valid only if it is within the limitations imposed by the Constitution and the existing general laws enacted earlier by Parliament, as amended, except if repealed by a new law under which the power in question is exercised. In every common law "democracy", including Nigeria there is strict separation of powers between the Executive, Legislature and the Judiciary. The apex Court (in the case of Nigeria, the Supreme Court), as a matter of convention, is usually trusted to moderate these relationships of power, including its own, to ensure no arm of government exceeds its powers. GOLDEN NUGGET Beyond this limited power to try people under Parliamentary Privilege on matters which undermine the authority of Parliament, no Parliament, as a matter of convention, practice law (has power to inquire), try or convict any person on criminal matters. To do that breaches the Separation of Power provisions, which constitute the very basis of Common Law Democracy. Because Parliament is supreme and engaged in important business on behalf of the people, it became the convention and practice to protect its authority from being undermined or brought into question and to protect its business from being disrupted. Also, there was the need at a certain time in England to protect Parliament from abuses of power by the Monarch. This resulted in the convention called Parliamentary Privilege. The powers of Parliament under Parliamentary Privilege are many but we shall state only those relevant to the power of inquiry as follows: Members of Parliament are immune from arrest and civil prosecution at certain times when Parliament is in Session. Parliament has the power to summons any person to clarify a matter or question before it. Any thing that is said by any person within Parliament or its precincts cannot be a basis for prosecution or civil action in a Court of law, unless it is repeated outside Parliamentary precincts. Parliament has limited powers of a Court (Courts of Parliament) only on matters which undermine Parliamentary authority. The convention and practice is that Parliament can summons, try, convict, sentence and imprison or punish any person for "Contempt of Parliament" and for "Misleading Parliament". The process of doing this is usually stated in the Standing Rules and Orders of Parliament. If a decision by Parliament to exercise this limited power of a Court complies with its rules and orders, no Court of law would entertain any challenge against it, but the Courts would review it and quash it if it fails to comply with the Standing Rules and Orders and the procedures they specify. Limits of Parliamentary inquiry powers. Beyond this limited power to try people under Parliamentary Privilege on matters which undermine the authority of Parliament, no Parliament, as a matter of convention, practice law (has power to inquire), try or convict any person on criminal matters. To do that breaches the Separation of Power provisions, which constitute the very basis of Common Law Democracy. The Supreme Court would quash any such exercise of power by the Senate as is the established and settled case law elsewhere. The Constitution 1999 provides Parliament (both Houses) with the power to conduct inquiries, but that section, as is the established case law in statutory interpretation and constitutional law, must be read as subject to limitations on that power elsewhere in the Constitution. The separation of power provisions of the Constitution, those provisions giving effect to individual rights and application of general criminal law, mean that the power of Parliament to conduct inquiries cannot extend to criminal matters. Any Parliament inquiring into criminal matters would be no different if not worse than extra-judicial tribunals, which offend the fundamental principles of a civilised democracy. Forms of inquiry Parliament could institute. Parliament can conduct inquiry into civil issues generally, without first enacting any other law to that effect. However, where criminal matters are involved or rights are violated and the facts are inadequate to support a criminal prosecution in the Courts by the Attorney-General, either Parliament or the Executive can initiate a Parliamentary Inquiry into that specific matter. The nature of such an inquiry would be judicial as is the established practice in other common law countries. Most of such inquiries would be issue specific and therefore temporary, the tenure of the judicial commissions terminating on completion of their inquiry. The Justice Oputa Human Rights Commission demonstrates a typical example of an inquiry in Nigeria, except that its tenure is more permanent than temporary. Whether a judicial commission is initiated by Parliament or the Executive, the enabling law setting up such an inquiry must be passed by both Houses of Parliament. As a matter of law, it must have a judge or retired judge as its head, it will observe rules of evidence and fair hearing and it must allow witnesses representation by counsel. And above all, it has no power to convict any person. All it can do is make recommendations. Often, people could then be prosecuted by the Attorney-General on the strength of the recommendations of such a commission. What happened in Alhaji Buhari's case? Alhaji Buhari was alleged to have forged the certificates, which qualified him to contest elections into the House of Assembly of which he became Speaker. Alhaji Buhari actually did forge his certificate and lied to the House about the forgery. In effect, two main relevant issues emerged from this case, viz: Forgery is a criminal offence. Only the police have power to investigate crime. Police should have investigated the allegations at the earlier stages of the scandal and in deed tried to do so, but some powerful political forces stopped them from taking the matter further. Alhaji Buhari was not qualified to contest election into the House in the first place, therefore, he was never really a member of the House. He was an interloper, a busy-body and an impostor presiding over the affairs of the House. He lied to the House. Clearly, there was a blatant breach of Parliamentary Privilege in that the authority of Parliament was undermined both by an impostor presiding over its affairs and also because Alhaji Buhari mislead Parliament in denying the forgery allegations which turned out to be substantiated by further investigations. So Parliament first inquired into the Buhari affair on grounds of breach of Parliamentary Privilege, not on grounds of the criminal offence of forgery, as it has no power to inquire into criminal matters. In addition, Alhaji Buhari subsequently admitted to the truth of the allegations against him, so no issues of standard of proof arose in the criminal aspects of the matter. Subsequently, the police completed their investigations and Buhari was prosecuted and convicted for the criminal offence of forgery. Buhari's case was unique because it had both the elements of a criminal offence and the breach of Parliamentary Privilege. Parliament had power to inquire into the aspects that concerned its powers. Had the police carried out its constitutional duties from the beginning of Buhari's case, the ideal or correct scenario should have been as follows: On completion of police investigations, Buhari would have been charged with the offence of forgery. The Court would have indicted him as having a case to answer. At that stage, Buhari would have resigned temporarily from his position as Speaker on the strength of the indictment, pending the outcome of the trial. On conviction, his temporary resignation would have been deemed permanent. Had he been acquitted, he could then have returned to his position. But this ideal and correct process was not followed because the Executive failed to act to investigate and prosecute, therefore, as Parliamentary Privilege was also breached, the House acted within its own powers, which was also correct. But Alhaji Buhari's case defers from Senator Okadigbo's case under discussion here, mainly because no issues of breach of Parliamentary Privilege are raised in the Senate contract scandal and both Dr Okadigbo and the accused Principal Officers deny all the allegations against them. In this regard the Senate is incompetent and without power to delve into full fledged criminal trials, nor can it find any of the accused Senators guilty under a lesser standard of proof of "beyond reasonable doubt" allowed in law. What is happening in the current case of Okadigbo and others? In this case Okadigbo and others have been accused of corruption. Reading through the Senator Kuta Panel's report, in actual fact they are accused of fraud, embezzlement, forgery, falsification of documents/prices, obtaining by false pretences, to name but a few. All of these attract criminal charges under the relevant Criminal/Penal Code. There are no issues of questions of breach of Parliamentary Privilege or undermining of the authority of the Senate involved. The police have not conducted any investigations, neither has the Attorney-General made any decision to the effect that there isn't enough evidence to proceed to prosecute the relevant Senators. The Senator Kuta Panel is not a judicial commission. The Senate has no power to investigate, try, prosecute and punish any person for criminal offences. The course adopted by the Senate is totally unconstitutional because it breaches the Separation of Power provisions of the Constitution and its other sections relating to individual rights. The least the Senate could do if any of its Committees find out a fraud in the Senate's accounts/finances is to report the matter and invite the fraud squad of the police and the Attorney-General's department or Ministry of Justice to investigate and prosecute those involved if there is enough evidence to support such prosecution. In that case what would follow is in line with the ideal process described for the Alhaji Buhari case above. Police/Attorney - General's office would investigate the matter and would decide whether or not to prosecute the Senators, depending on the available evidence. If the Attorney - General decides to prosecute, the Court would determine whether or not the Senators have a case to answer. If indicted, Senator Okadigbo and the relevant Principal Officers would resign temporarily from their positions in the Senate, pending conviction or acquittal. If convicted, the resignation becomes permanent and they are sentenced accordingly, but if acquitted they return to their positions. What is going on in the Senate currently is an unconstitutional political process which denies the accused Senators their rights to a fair hearing and which is aimed solely at removing the Senate President from office. It is immaterial that the Senate almost unanimously voted to undertake the process, what matters is that the Senate has exceeded its powers. Senator Kuta himself has publicly admitted that the inquiry was politically motivated. According to Senator Kuta "it (the probe) was initiated by Senator Okadigbo's supporters who were aggrieved over contract awards". The Senator spoke of Okadigbo's camp, confirming and implying that he was in the anti-Okadigbo camp. The same goes for Senator Tunde Ogbeha and others in the Senator Kuta Panel, which was made up of largely anti-Okadigbo forces. There have been reports of meetings between Senator Kuta (the Senate Panel) and the leaders Peoples Democratic Party and the Presidency, prior to the Panel's report being made public. The Report was circulated to the press prior to the Senate having the opportunity to consider it, thus adding to the pressures on the Senators from their constituents which would bias/influence their decisions against the accused. The Senator Kuta Panel is not a judicial commission. The Panel had only a few days to rush through its agenda. The accused Senators had no legal representation; neither did the Panel adhere to the rules of evidence. The fundamental rights of Senator Okadigbo and others have been breached by the Senate process, which is beyond power. All these circumstance and methods adopted by the Senate constitute a denial procedural fairness and natural justice for Okadigbo and others. The unconstitutional action of the Senate in this matter seeks to remove Okadigbo and others from office, prior to them being indicted in a Court of law and being convicted of any criminal offence. What remedy would the Senate then provide to the accused Senators if they were eventually acquitted by the Courts in a future trial over the alleged criminal offences? What the Supreme Court would do. One would expect a reasonable Senate that knows the limits of its powers to simply refer the matters to either the Nigerian Police or the Anti-Graft commission for investigation and prosecution according to law. Should the Senate fail to live up to what is expected of it, Okadigbo and others should take recourse to the judiciary. The Supreme Court of Nigeria is and has always been an apex Court respected the world over for standing out to protect the rule of law. In a Federal Common Law Democracy, no apex Court would permit any arm of government or body, not being a Court under the constitution and the law, to exercise judicial functions, just as the Court would not exercise administrative or legislative functions. The Supreme Court has always followed the decision of sister/brother Courts in other Common Law countries when necessary and one would expect Okadigbo and others to give the apex Court the opportunity to use their case as a means of reasserting the rule of law, should the Senate proceed with this political exercise. Nigerians are agreed on the need to eradicate corruption from the polity, but the fight against corruption must be within the Constitution and the law, not outside it. The Senate should not take over Executive and Judicial powers in investigating, prosecuting, trying, sentencing and punishing persons alleged to have committed criminal offences. The Senate simply has no such powers! Francis Nnamdi Elekwachi