[caption id="attachment_39083" align="alignnone" width="387"] Femi Falana : Senate cannot dwell on criminal probe[/caption] Nigeria's leading human rights and constitutional lawyer, Mr. Femi Falana said on Tuesday that the Senate or any of its committees lacks the constitutional power to investigate a criminal matter. The power to do so resides with the police, he said. Mr Falana, a senior advocate of Nigeria, was reacting to the invitation to Mr. Danladi Umar, Chairman of the Code of Conduct Tribunal by the Senate Committee on Ethics and Public Petitions over a petition it received alleging corruption against the man. Here is Falana's full statement, entitled: The illegal summons on Code of Conduct Tribunal Chairman: "We have confirmed that the leadership of the Senate has resolved to frustrate the ongoing trial of the Senate President, Dr. Bukola Saraki before the Code of Conduct Trubunal holden at Abuja. Yesterday, the Tribunal ruled that the case would be conducted day by day until it is concluded pursuant to the provisions of the Administration of Criminal Justice Act, 2015. In a swift but contemptuous reaction to the ruling the Ethics Committee of the Senate has purportedly summoned the Tribunal Chairman to appear before it on Thursday, April 21, 2016. The Judge is required to testify before the Senate Committee in respect of a petition alleging corrupt practices against him. "It is pertinent to point out that the Ethics Committee of the Senate lacks the power to summon the Tribunal Chairman to testify in respect of a criminal investigation. More so that the allegation being examined by the Ethics Committee of the Senate is the subject matter of a pending criminal case at the High Court of the Federal Capital Territory sitting in Abuja. Following the allegation that the Personal Assistant of the Tribunal Chairman allegedly received a bribe from a suspect on behalf of his master the matter was investigated by the Economic and Financial Crimes Commission. At the end of the investigation the Tribunal Chairman was exonerated while his Personal Assistant was indicted. Consequently, the suspect has since been charged to court. Since the case has not been concluded or terminated it is the height of contempt on the part of the Senate or any of its Committee to decide to conduct another trial on the same subject matter. “It appears to me that section 82 is not designed to enable the legislature usurp the general investigative functions of the executive nor the adjudicative functions of the judiciary. ... They can only invite members of the public when they want to gather facts for the purpose of enabling them make law or amend existing laws in respect of any matter within their legislative competence or as witnesses in a properly constituted inquiry under section 82(1)(b). " "However, by virtue of Sections 88 (1) & (2) of the 1999 Constitution the National Assembly is empowered to conduct an inquiry for the purpose of enabling it to- "(a) make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and (b) expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in disbursement or administration of funds appropriated by it." "It is pertinent to note that the enormous investigative powers of the National Assembly are circumscribed as they are exercisable subject to other provisions of the Constitution. In Senate of National Assembly v. Momoh (1983) 4 NCLR 269 at 295 the Federal Court of Appeal dwelt in extenso on the provision of Section 82 of the 1979 Constitution when it held:- “It appears to me that section 82 is not designed to enable the legislature usurp the general investigative functions of the executive nor the adjudicative functions of the judiciary. ... They can only invite members of the public when they want to gather facts for the purpose of enabling them make law or amend existing laws in respect of any matter within their legislative competence or as witnesses in a properly constituted inquiry under section 82(1)(b). " "It is submitted, with respect, that section 82 of the 1979 Constitution is in pari materia with section 88 of the 1999 Constitution. In Mallam Nasir Ahmed El-Rufai v. The House of Representatives, National Assembly of the Federal Republic of Nigeria & Ors. (2003) 46 WRN 70 the Court of Appeal subjected section 88 of the 1999 Constitution to a critical judicial interpretation. Oguntade JCA (as he then was) who read the leading judgment of the Court said: “The crucial question that follows is this: when the 1st Defendant sent the letter of 20/3/2002 to the Plaintiff to appear before its Ethics and Privileges Committee, was it engaged in the making of a law within its legislative competence or to expose corruption and inefficiency in a public department? Clearly, the answer is in the negative. It is apparent that the 1st Plaintiff and was intent on taking further steps following its antecedent determination. That this was the intention of the 1st Defendant which is made clear by the opening paragraph of the letter which stated that the Plaintiff had published defamatory matters concerning it.” “Neither the Speaker nor the House is empowered by the Constitution and statute law to deal with the issue assigned to the panel. The investigation of crimes is for the police and the trial of criminal offences is for the courts. The Speaker on receipt of Mr. Aladeselu’s letter ought to have referred it to the police for necessary action.” "With respect to the matter on hand it is submitted that Senate lacks the power to investigate allegations of corrupt practices and other criminal offences. In Akomolafe v. The Speaker of Ondo State House of Assembly (1984) 5 NCLR 355 at 367 Ogundare Ag CJ (as he then was) of blessed memory held:- “Neither the Speaker nor the House is empowered by the Constitution and statute law to deal with the issue assigned to the panel. The investigation of crimes is for the police and the trial of criminal offences is for the courts. The Speaker on receipt of Mr. Aladeselu’s letter ought to have referred it to the police for necessary action.” Conclusion "In the light of the foregoing the Ethics Committee of the Senate is advised to withdraw its illegal summons which has been issued and served on the Code of Conduct Tribunal Chairman. "Instead of exposing the Nigerian people to further undeserved embarrassment over the Saraki case the Senate is enjoined to enhance the fight against corruption by passing the Whistle Blowers Bill, the Proceeds of Crime Bill and the Witness Protection Bill which were passed by the 7th National Assembly but were not signed into law by fromer President Goodluck Jonathan. For the Nigerian people to take the war against corruption seriously the members of the legislative and executive arms of Government ought to be prepared to demonstrate leadership by example. In a country where the majority of the states are owing arrears of salaries the legislators should be prepared to make sacrifice by reducing their fat salaries and jumbo allowances."