Senate v. Judges – Constitutional Arbiter

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At the session of the Senate arm of the National Assembly on Wednesday 19th October, 2016, the Chairman of the Senate Committee on Judiciary, Human Rights and Legal Matters hinted the President and the entire members of the Senate of the move being made by the Committee to invite the seven judicial officers that were arrested by the Department of Secret Services (DSS) for allegation of corruption pursuant to its powers under the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Order 96 Rule 37 of the Senate House Rules.

The essence of the invitation of the judges as stated by the Chairman of the Committee was to “conduct proper oversight on the matter and to invite the justices to enable us interact with them…” The President of the Senate and its entire members consequently approved the move to invite the judicial officers in question. This all happened on 19th October, 2016

On Sunday, 23rd October, 2016, an interest group known as Legal Defence and Assistance Project (LEDAP) issued a statement through its national coordinator faulting the plan by the Senate to invite the arrested judicial officers for questioning. LEDAP’s grounds for its strong objection to the invitation of the judicial officers by the Senate were that the “1999 Constitution…has consolidated the independence of the judiciary and established the NJC as the only body responsible for the management of the judiciary

LEDAP added that the Constitution did not give the legislature any oversight function on the judiciary pursuant to the principle of separation of power.

To say the least without mincing words, LEDAP’s position is grossly misconceived and is capable of misleading unsuspecting Nigerians and other people around the world who are following the happenings in the judiciary and who may not have opportunity to review the provisions of the 1999 Constitution with a view to appreciating the true position of the law. Since the arrest of the seven judicial officers by the DSS on 7th October, 2016, there has been a lot of fracas and comments with regards to the extent of the power conferred on the NJC under the 1999 Constitution.

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The reference points in this regard are Paragraph 21 of the Third Schedule to the 1999 Constitution and sections 153 & 292 of the Constitution. The mandate of the NJC under these relevant provisions of the Constitution (especially Paragraph 21(a)(b)(c)&(d) of the Third Schedule) is simply to recommend judicial officers for appointment or removal. That the 1999 Constitution recognizes the NJC as the only body that has a say on the affairs of the judiciary as opined by LEDAP falls short of proper consideration of other relevant parts of the Constitution, especially on the extent of powers of the Senate.

The pertinent question at this stage is what power can the Senate exercise other than plenary law-making power, and how can that power be exercised? The answer to this poser can be found, inter alia, under the provisions of sections 88 & 89 of the Constitution. Section 88(1)(a) gives either House of the National Assembly power to conduct an investigation on “any matter or thing with respect to which it has power to make laws” while section 88(1)(b) allows it to investigate “the conduct of affairs of any person, authority, Ministry or government department charged or intended to be charged with the duty of or responsibility for executing or administering laws enacted by the National Assembly.” The purport of section 88(1)(b) appears to be very clear— it applies to the power of the Senate or the House of Representatives to conduct an investigation into the conduct of the affairs of the executive arm of government and its agencies and parastatals, because they are the ones responsible for executing or administering laws made by the National Assembly. This does not apply to the judicial arm. However, unlike subsection (1)(b) of section 88, subsection (1)(a) of section 88 is of general application, as it applies to “any matter or thing with respect to which the National Assembly has power to make laws.”

The matters or things with respect to which the National Assembly has powers to make laws are contained in Part 1 (Exclusive Legislative Competence) and Part 2 (Concurrent Legislative Competence) of the Second Schedule to the 1999 Constitution. One of such matters is contained under item 60(a) of Part 1 of the Second Schedule to the Constitution which allows the establishment and regulation of authorities “to promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in this Constitution.

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The Fundamental Objectives and Directives Principles are contained in Chapter 2 of the 1999 Constitution which covers sections 13 to 24. The instructive section among the section is section 15(5) which provides that the “State shall abolish all corrupt practices and abuse of power.” LEDAP and other people who are of the opinion that the Senate does not have the power to invite the arrested judicial officers should be quickly reminded that the arrest of the judicial officers by the DSS was based on official corruption and abuse of office (bribery), and these are still the same reasons why the Chairman of the Senate Committee on Judiciary, Human Rights and Legal Matters plans to invites the arrested justices in order to “conduct proper oversight on the matter…”, and this is line with section 15(5). While the Senate Committee clearly stated the reasons for the invitation of the judicial officers, it has never said (and I am sure will not say) that the reason for their invitation is to ultimately apply disciplinary measures on them (as this is obviously within the powers of the NJC).

While section 88 majorly provides for the power of the either House of the National Assembly (the Senate in this case) to investigate any matter in respect of which it has powers to make laws, section 89 solidifies two major points— (a.) that the power of investigation by the Senate can be exercised by a committee appointed by the Senate (the Senate Committee on Judiciary, Human Rights and Legal Matters is a standing committee appointed for this purpose); and (b.) that for the purpose of exercising the power of investigation, any person whose evidence is relevant to the subject matter (in this case the arrested judges) can be invited or summoned by the Senate or its Committee to give evidence. What more can one say?

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LEDAP should once again be reminded that the principle of separation of powers as propounded by John Locke and Baron De Montesquieu is not cast in stone. As a matter of fact, Montesquieu included the doctrine of checks and balances as forming part of the principle of separation of powers. The independence of any of the three organs of government and their affiliates does not connote that the respective organs cannot be checked.

In jurisdictions such as the United States of America and South Africa where the principle of separation of powers is also in place, their constitutions make provisions for checks and balances. So is the 1999 Constitution of the Federal Republic of Nigeria. Sections 88 & 89 of the Nigerian Constitution are good examples of the instrumentality of checks and balances by the legislative arm on the executive and judicial arms of government. In the same vein, the same Constitution empowers the judiciary to check the legislature and the executive through judicial review. Section 6(6)(a)(b) of the Constitution is a very good example in this regard. The executive arm is also not left out. Any bill made by the legislature must be assented to by the President before it can become law. Again, this power of presidential assent can also be checked by the two-third majority of the National Assembly. The instrumentality of checks and balances under the 1999 Constitution is abounding.

The “sermon” here is that it is a misconception to think that the independence of the judiciary or the principle of separation of power serves as immunity for the judiciary or judicial officers from the doctrine of checks and balances. On a final note, the Senate by itself or through its Committee on Judiciary, Human Rights and Legal Matters can invite the arrested judicial officers to investigate and/or question them on allegation of corruption and abuse of office pursuant to the provisions of sections 88, 89, 15 (2) and item 60(a) of the Second Schedule to the Constitution.

Bolaji RAMOS, Esq.

(bolajiramos@gmail.com+2347033833829)

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