Saturday, February 6, 2016 12:30 pm
Senate President Bukola Saraki’s failure to get the Supreme court to endorse his attempt to stop his trial for false declaration of assets by the Code of Conduct Tribunal puts a dampener on his political future as well as the appropriateness of his continued occupation of the third highest position in the country.
For the scores of supporters of Senate President Bukola Saraki, most of whom must have kept vigil to be able to be present early enough at the Supreme Court for the delivery of judgment on his bid to stop his ongoing trial by the Code of Conduct Tribunal, CCT, it was hopes dashed.
Minutes after the delivery of the about 30 minute judgment, this magazine observed as the supporters, most of whom had traveled all the way from Kwara State to Abuja and had flooded the court in different hues of guinea brocade attires with matching caps quietly filed out of the courtroom. While talking in hushed tones in disappointment, they immediately assembled and entered into the r vehicles that brought them to court, as they drove out of the premises of the court. Their disappointment was shared by the man they idolised.
In a statement issued few hours after the delivery of the Supreme Court judgment, Saraki expressed his disappointment over the decision of the apex court which declared that the CCT has the powers to try him on charges of false assets declaration, but declared that he will be vindicated during the trial.
The Senate President said this in a statement released on his behalf by Yusuph Olaniyonu, his media adviser few hours after the Supreme Court judgment. “The Senate President believes he will have his day in the court to prove his innocence of the charges preferred against him during the trial proper,” he added in the statement. The Senate President also assured that “truth will prevail and justice will be served,” at the end of the day.
The former governor of Kwara State could not, but be disappointed. For one, the judgment of the Supreme has practically put his swift ascent on the Nigeria’s political firmament on the line, especially if he is unable to convincingly prove his innocence during the trial which is already turning out to be one of the most sensational Nigerians will witness in recent times. Also, calls on Saraki to step down the exalted position of senate presidency as he undergoes trial for false assets declaration are likely to get higher in the coming days.
Saraki’s game of legal gymnastics
Saraki was arraigned by the Federal Government on a 13-count criminal charge that bordered on corruption, false declaration of assets, and illegal operation of a foreign bank account while in office as a public servant on 22 September, 2015. The charge was preferred against him on the recommendation of the Code of Conduct Bureau, CCB.
In the charge sheet which was signed by a deputy director in the office of the Attorney General of the Federation, Mr. M. S. Hassan, the Senate President was alleged to have manipulated the assets declaration forms he submitted to the Code of Conduct Bureau, CCB when he assumed office as governor of Kwara State in 2003, on his re-election for a second term in 2007 and on his exit from the office in 2011. Saraki was alleged to have falsified the forms by making anticipatory declaration of assets, an action which the prosecutor said was contrary to the provisions of section 2 of the CCB and Tribunal Act, and punishable under section 15(1) & (2), and 23(2) of the CCB and Tribunal Act, Cap C15, Laws of the Federation of Nigeria, as well as paragraph 9 of the Fifth Schedule to the 1999 Constitution, as amended.
But getting Saraki to come to court for his trial was not an easy task as the Senate President and his lawyers embarked on a series of legal gymnastics immediately they got wind of the impending trial. In his bid to stop his arraignment the Senate President, through his lawyer, Joseph Daudu (SAN) had approached a Federal High Court sitting in Abuja asking for declarations that the Tribunal has no power to try him. He also filed a similar suit at Court of Appeal.
Daudu had asked the Tribunal to suspend its sitting to allow the High Court which he contended was superior to the CCT decide the case on its jurisdiction on 18, September, when the trial of the Senate President was schedule to begin. But the prosecution rejected the request, arguing that the new Administration of Criminal Justice Act forbids suspension of trial pending determination of interlocutory appeals.
Justice Dandladi Umar, the Chairman of the Tribunal agreed with Jacobs and ordered the Senate President to be present in court for commencement of his trial the next day. The Tribunal was forced to issue a warrant of arrest on 19 September in which it asked the Inspector General of Police to ensure the presence of the Senate President in court for trial at the next adjourned date of 22 September when Saraki was also absent the next day.
When he eventually appeared, Saraki’s lawyer also strenuously tried to prevent his client from entering the dock to take his plea to the 13 count charge by pointing out that proceedings at the CCT cannot be classified as criminal trial going by paragraph 18(1) of the Fifth Schedule to the 1999 constitution. To back up his argument, the Senior Advocate of Nigeria noted that if the CCT found that a public officer contravened any provision of the Code of Conduct, such person could be punished by being asked to vacate the office he/she occupies, disqualification, seizure and forfeiture of assets in contention, or made to suffer any other penalty as may be imposed by the National Assembly.
“This court is not empowered to try criminal cases, this tribunal is like a disciplinary committee that is meant to punish politicians, not a court where Section 6 of the ACJA applies,”Daudu, argued. But he was opposed by the prosecution counsel who argued that trial at the CCT is criminal in nature. Justice Umar upheld the submissions of the prosecutor and held that the charge against Saraki was criminal in nature and that trial at CCT was criminal in nature.
Thus, Saraki was practically forced to enter the dock to plead to the charges which he also did in a very dramatic manner. The Senate President pleaded not guilty to the charges and the CCT fixed a date for the commencement of the trial. The prosecution also said he has all the evidence that will ensure a speedy trial ready.
Saraki’s Appeal Court misadventure
But determined to ensure that the case will not go on, the Senate President also filed a suit at the Court of Appeal to challenge his trial . In the suit, Saraki challenged the powers of the CCT to try him. He specifically challenged the composition of the tribunal, arguing that three and not two members should form a quorum for the purpose of its sitting to exercise its jurisdiction. The Chairman of the Tribunal was sitting with just a member to adjudicate on the former governor case.
He also challenged the legality of the charges preferred against him as he complained that the charges ought to have been endorsed by the Attorney general of the Federation, AGF. There was no sitting AGF in office at the time the charges were filed. On October 30, a three-man panel of the appellate court, in a split 2:1 decision delivered the first judicial knockout for Saraki when they held that his appeal lacked merit.
Justice Moore Adumein who presided over the panel and also read the majority judgment resolved all the six issues raised in the appeal in favour of the Federal Government and the CCT.
The judge rejected the contention of Saraki that the CCT, being an inferior body to the Federal High Court, ought not to have proceeded with his trial despite an order by the court. In addition, he also ruled that the Senate President’s complaints that he was not personally served with the charge “was of no moment having appeared and taken his plea before the tribunal.”
On the composition of CCT, though Justice Adumein, noted that there was “lacuna” in the laws, he held that “the Interpretation Act has resolved the issue by providing that a member of the tribunal and its Chairman could validly sit and conduct proceedings. He agreed with the prosecution counsel that by provision of Section 28 of the Interpretation Act, two members of the tribunal (including the Chairman) form quorum to validly conduct its proceedings.
He also held that going by Section 174(1) and (2) of the Constitution, any law officer in the office of the AGF could validly file charges in the absence of substantive AGF. “M.S Hassan, a Deputy Director in the department of the AGF is eminently qualified to initiate criminal proceedings. The Solicitor-General of the Federation, in the absence of the AGF may perform any of the duties and shall have the same powers as are imposed by law on the AGF,” the judge said. The Judge also contended that terminologies and phrases used in the CCT Act, such as “arraignment”, “arrest”, “taking plea”, “guilty” and “conviction” are associated with criminal proceedings, therefore, the CCT is a criminal court, with limited jurisdiction,” while dismissing the appeal.
Even, Justice Ekanem, who dissented with his brother Judges only did so on the single issue that the absence of substantive AGF, M. S. Hassan (who endorsed the charge) should have indicated who authorized him to file the charge. He therefore ruled that the failure of the Deputy Director of Public Prosecution to do this in his letter to the Tribunal seeking leave to file the case rendered the charge incompetent.
Final knockout at the Supreme Court
Still determined to stop his trial even before it took off, the Senate President promptly appealed the judgment of the Court of Appeal. In the appeal he filed at the Supreme Court, the Senate President asked the apex court to determine if the Chairman and a member of the Tribunal can legally conduct proceedings where the Constitution says it must be constituted by two members and a Chairman. He also asked the court to determine whether the Tribunal is right to have assumed jurisdiction to try him.
The lawyer to the Senate President in the argument before the Supreme Court on 3 December said the CCT was wrong to have assumed jurisdiction over the Senate President’s trial because it was not properly constituted. But the Federal Government’s lawyer asked the court to dismiss the appeal. He argued that the court was properly constituted and has the jurisdiction to try Saraki among other arguments.
After listening to the arguments of the lawyers, the apex court asked the CCT to suspend the trial of the Senate President pending delivery of its judgment. The order to suspend trial of Saraki pending judgment was criticised by some lawyers, notably Barrister Femi Falana, SAN who argued that it is against the provision of ACJA.
In spite of such controversies, the decision of the Supreme Court Justices was not different from that of the Appeal Court when it eventually came yesterday. The panel of the apex court presided over by the Chief Justice of Nigeria agreed that there is a lacunae in the quorum required for the CCT to sit in the Constitution as well as in the Act establishing it. But they agreed with the Appeal Court that the Interpretation Act has taken care of the problem.
Justice Samuel Onnoghen who delivered the lead judgment noted that while paragraph 15, sub section 1 of fifth schedule of 1999 Constitution which established the CCT provided that it should consist of a chairman and two other members, section 28 of the Interpretation Act said “notwithstanding anything contain in any Act or any other enactments, the quorum of any tribunal, Commission of Enquiry, including any appeal tribunal for the purpose of hearing an appeal arising thereon shall not be less than two, including the chairman.” He therefore concluded that from the above provision, it is clear that any sitting of the CTC consisting of the chairman and one member as was the case during the trial of Saraki was valid.
Also, the Supreme Court ruled that contrary to the claims of lawyers to the Senate President, CCT has the power to try criminal cases. Also in sync with the Appeal Court, the apex court noted that the CCT Act is replete with phrases which indicated that the court has powers to try criminal cases. Justice Onnoghen however held that the nature of punishment to be imposed by the Tribunal is not exhaustive at the moment because section 81 of the fifth schedule to the Constitution and section 23(1) of the CCB and Tribunal Act contains a provision to the effect that the National Assembly may extend the nature of punishments it meted out to for offences under the Act in the future.
“In the circumstances, I hold a strong view that as a tribunal with quasi criminal jurisdisction with authority to be guided by Criminal Procedure Act, it can legally issue bench warrants for the purpose of carrying out its quasi criminal jurisdiction and should not be understood to mean the CTC is a court of superior record or jurisdiction with inherent powers and sanctions, but that as a quasi criminal tribunal court, it has the necessary powers to put into effects its mandate of ensuring accountability, probity, transparency, etc of public officers in public office,” said Justice Onnoghen.
The apex court wondered if the appellant was canvassing that the office of the AGF should remain inactive once there is no substantive AGF in place while dismissing the third ground of appeal by Saraki: “That office is an office, it is not a person. And there are decisions of this court to the fact that the charge preferred by the then Deputy Director of (Legal Prosecution) is valid.”
The Court also held that with the new ACJA, “there is nothing like proper or improper service known to law,” in reaction to the claims by lawyers to Saraki that his client was not properly served the charges. The apex court further noted that the claim by the Senate President that the Tribunal disobeyed a Federal High Court order to carry on with his trial is spurious. The court held that there was no any valid order by the by the court to the Tribunal to stop its proceedings: “I think this was just brought to intimidate the tribunal. There was no order of the Federal High Court stopping the tribunal from acting.”
Teeth to Code of Conduct Tribunal
Analysts said the judgment of the Supreme Court to clarify a lot of issues related to operations of the CCT. According to them, CCT would have been rendered ineffective if some of the grounds of appeal, especially as related to its jurisdiction had succeeded. In the same vein, the decision of the court that “proper or improper service,” is no longer known to law with the coming into operation of ACJA has cut the ground off the feet of one of the excuses lawyers have over the years perfected to delay trial.
“There is no doubt that the judgment has interpreted so many parts of the constitution and controversies surrounding some of the provisions of the constitution by this judgment have been laid to rest,” Saka Ishau (SAN), the lead counsel to Saraki during the delivery of the judgment told journalists.
“The Supreme Court has demonstrated today that the law is the king and not persons. No one is above the law and everyone must obey the law. That is the message today,” the prosecuting counsel told journalists. He added that the prosecution is ready to resume trial of Saraki as soon as the CTC give it a date for the commencement.
Also, it would have been impossible to get the Senate, which was constitutionally empowered to do so, to approve the appointment of another member for the CCT under the leadership of Saraki. Thus the Tribunal would have been rendered redundant if the Court had agreed with the argument of the Senate President’s lawyers that it needed one more member to be able to exercise its jurisdiction.
Quit and go and prove your innocence!
President Buhari who accused Saraki of committing treachery over his collusion with PDP against APC in the matter of the leadership of the National Assembly as a stab in the back had in a statement in October last year distanced himself from the ordeal of the Senate President. The President said in a statement by his Senior Special Assistant on Media and Publicity, Mallam Garba Shehu that: “as an independent institution equal to any superior court of record, the tribunal is set up by the constitution to determine the issue of default, false declaration or forgery in assets declaration.”
The President also said the Senate President should get ready to defend himself against the charges by hiring lawyers to prove his innocence.
“Government has no desire to persecute anybody. The President has vowed to respect the rule of law and this is what he is doing by staying out of this matter. It is purely a judicial process, the types of which are routinely dealt with by the CCB and the CCT. There are many cases like this that are going on. The President has sworn to an oath to protect the constitution and will not violate that oath”, Shehu said.
This was exactly what the Supreme Court justices told Saraki last Friday when through their judgement, they stopped his attempt to evade trial on the charges of false assets declaration. It was also gathered that the Federal Government has lined up eight witnesses, made up principally of detectives who investigated the allegations of false assets declaration against the Senate President in preparation for the trial. The CTC will also probably re-open the case against Saraki next week.
But as Nigerians and indeed, the world awaits the beginning of the trial, the question that will confront the nation is the appropriateness or otherwise of Saraki presiding over a national institution as important as National Assembly when he is being tried for corruption. The norm in other climes is for such public office holders to put in their resignation letters immediately their names are linked to such corrupt allegations. This was a dilemma that has faced the Senate since the pictures of Saraki, looking clearly out of depth inside the dock of CTC graced the front pages of newspapers last September.
Despite that national embarrassment, the Senate President, like the typical Nigerian politician has continued to stubbornly hang on to his position. He has even had the temerity to shut down the National Assembly by adjourning proceedings each time he was due to attend his trial at CCT. Rather than ask him to resign, a group of loyalists of the Senate President had disingenuously passed a vote of confidence on him the day after his first outing at CCT.
Indeed, in what seems a celebration of the corruption trial, Saraki and his supporters in the Senate usually attended and departed the Tribunal sittings in a convoy of buses, while their behaviour during proceedings always left much to be desired. The prosecuting counsel had, during one of the proceedings, asked the chairman of the Tribunal to caution the Senators and remind them that they were not in their National Assembly chamber when their rowdiness became unbearable.
Chief Kenneth Gbagi, a former Minister of State for Education, told journalists after the Senate President was arraigned in court last December that the honourable thing for Saraki to do is to throw in the towel.
“First Nigerians will not have faith in anything that comes out of a Senate that is presided over by him. The entire international community will not believe in the passage of any bill under his leadership,” said Gbagi who added that the offence of false declaration of assets is a very grave crime that attracts stiff penalties in advanced democracies.
“The only reason why America is still a country today is that no matter who you are, once you crossed the rules of the law, you must pay for it. Until we get to that level, we are just wasting our time. First and foremost, Saraki cannot be sitting there as Senate President because whatever he does will question the integrity of the entire Senate.”
One group that has been in the vanguard of the agitation for Saraki’s vacation of his seat in view of his impending trial in the upper chamber of the National Assembly is the Senate Unity Forum.
The SUF was made up of Senators, who in deference to APC leaders’ choice had supported Ahmed Lawan for the position of the Senate President. Saraki had with the help of senators elected on the platform of Peoples Democratic Party, PDP defied his party to emerge the President of the Senate. Saraki’s conspiracy with the opposition Senators also led to the emergence of Ike Ekweremadu as Deputy Senate President.
The resulting crisis had led to a delay in the appointment of the National Assembly leadership and composition of committees. The SUF also has a suit in court in which they complained that some provisions of the Senate rules book, otherwise known as Senate Standing Orders used to conduct election of Saraki and Ekweremadu were deliberately altered to favour the election of the two men.
Judgment in the forgery suit which has already been heard by Justice Adeniyi Ademola of Federal High Court, Abuja Division is expected anytime from now. Saraki had attributed his trial by the CTC to the manner of his emergence as the Senate President.
Spokesman SUF, Senator Kabir Marafa, said in an interview published in a national newspaper that with his impending trial, Saraki must vacate his position. This, he said, was necessary to save the image of the National Assembly from being battered from the Senate President’s corruption trial. He added that the image of the Senate has already been battered by the trial of its President. “The Supreme Court has decided that he has a case to answer, I think that the best thing for Senator Saraki is to resign in order to have enough time and full concentration to face his trial.
He however said if the senate president refused to resign and there is no pressure on him by Senators to do so, Nigerians should recall all their representatives in the senate for failing in their responsibilities.
Certainly, Saraki has not enjoyed the support of most members of his party in his battle with the CCT. But his allies in PDP have always come to his rescue. Already, the Senator Samuel Anyanwu led Senate Committee on Ethics, Privileges and Public Petitions had embarked on investigations of bribery allegations made against Justice Umar, in a move many regarded as part of the plot to force the removal of the chairman of CCT from office. Anyanwu is a member of PDP. But the investigations have failed to gain traction following the refusal of the author of the petition in which the allegations were contained to come forward to prove his case against the CCT chairman.
Predictably, Anyanwu said in an interview on Friday that there was no reason for the Senate President to resign because of his impending trial by the CCT. He added that majority of Senators are in support of the Senate President.
The House of Representatives has also been enlisted into the obvious scheme to blackmail Justice Umar as a committee of lower chamber has also embarked on its own probe of the CTC Chairman.
In spite of the obvious attempt at blackmail and intimidation, calls on Saraki to throw in the towel to prevent further dragging of the Senate and indeed, Nigeria in the mud as he undergoes criminal trial will get louder in the days ahead.