Date: 2015-11-22

Since his emergence as Senate President, it is difficult not to admire the dexterity with which Dr Bukola Saraki has been deftly but maximally utilising the enormous influence and resources of his office to consolidate his position in the Senate and strengthen his hand within the APC. At the same time he enjoys tremendous goodwill within the PDP to which he has made key political concessions, including the strategic position of Deputy Senate President.

Ever since his travails with the Code of Conduct Tribunal (CCT) over alleged false assets declaration began, the vast majority of Senators have passed two motions in Saraki's support. As far as they are concerned, Saraki is the innocent victim of political harassment and persecution by those opposed to his continuing in office as Senate President. When he appeared before the CCT on October 21, Saraki was accompanied by 80 senators who turned up to exhibit solidarity with their embattled leader. And when he turned up to keep a date with the court on Thursday, November 5, at least 30 senators were on hand to identify with Saraki.

<[?Yet, the dignity, integrity and image of the Senate have been steadily devalued and eroded since Dr Saraki's emergence as Senate President. It is bad enough that the head of Nigeria's National Assembly has to appear frequently in the dock to defend himself against alleged serious criminal infractions. It is even worse that neither Saraki nor his colleagues see the need for him to step aside until his innocence is established at least to protect the image and integrity of the National Assembly as an institution. Of course, this is without prejudice to the fact that Senator Saraki like every other Nigerian is deemed innocent of any alleged crime until found guilty by a competent court of law.

On Thursday, 5th November, Saraki's defence counsel abruptly withdrew from the case in protest against the CCT's ruling that the trial must commence that day. The defence counsel had applied for a stay of proceedings in the case until the determination by the Supreme Court of an appeal by the Senate President against the 2-1 split decision of the Court of Appeal, which upheld the jurisdiction and competence of the CCT to entertain the case. The Saraki case is evidently also having a toxic effect on the dignity and integrity of the judiciary. The action of Saraki's defence counsel, including very senior lawyers, whether described as a 'walk out'or not constituted an affront on the CCT judges and reflected unflatteringly on the image of the court.

Even more disturbingly, the decision of the Supreme Court on Thursday, November 12, granting a stay of proceedings in Saraki's trial before the CCT has elicited very strong reactions with serious implications for the credibility of the judiciary. Describing the apex court's ruling as flagrantly contravening sections 306 and 369 of the Administration of Criminal Justice Act (ACJA), which expressly prohibit granting of stay in criminal proceedings, very senior and credible lawyers including Chief Adegboyega Awomolo (SAN), Professor Itse Sagay (SAN) and Mr Femi Falana (SAN) have strongly and uncharacteristically condemned the decision of the Supreme Court panel.

According to Professor Sagay, "What the Supreme Court has done is illegal and it is shocking that the Supreme Court would indulge in illegalities". Mr Femi Falana was no less scathing when he stressed that "It is unfathomable that the Supreme Court decided to return the country to the status quo ante in a rather brazen and bizzare manner". Other lawyers such as Mr Mike Ozekhome (SAN) and Prince Ajibola Oluyede have stoutly defended the decision of the Supreme Court. In Ozekhome's view, the ACJA contradicts Section 6 (6) and 36 of the 1999 constitution, violates the principle of Separation of Powers and is thus unconstitutional and illegal. He avers further that Section 306 of the ACJA does not apply to the Supreme Court or any other appellate court but only to the trial court.

Prince Oluyede in his case curiously commended the Supreme Court "for daring to do the unthinkable by scuttling the politically motivated stampede to remove Bukola Saraki from his position as Senate President through a wholly unconstitutional trial at the Code of Conduct Tribunal". Really? So the Supreme Court has decided that Saraki's trial before the CCT is 'politically motivated' and 'wholly unconstitutional'? It cannot get more interesting. Oluyede certainly knows something the rest of us do not.

Yet, Neither Oluyede or Ozekhome, in my view, logically or credibly controverts Falana's lucid and rigorous critique of the Supreme Court decision. I do not think that Ozekhome can simply sit leisurely in his chambers and cavalierly declare as illegal and unconstitutional a legislation that has been duly enacted by the National Assembly and signed into law by the President of the Federal Republic of Nigeria and one which has not been challenged and consequently nullified by any court of competent jurisdiction.

Falana's argument is water tight. According to him, "...it has been judicially decided that statutes that oust the jurisdiction of courts to stay proceedings are constitutionally valid. In FRN v Nwude (2006) 2 EFCCLR 149 at 161 it was held by Justice Oyewole J. (as he then was) that section 40 of the Economic and Financial Crimes Act, 2004 which abolished stay of proceedings is not an infraction of powers of the court…Similarly in Ajiboye v FRN (2013) 17 WRN 127 at 145 the Court of Appeal (per Justice Ogbuniya JCA) struck out the application for stay of proceedings on the ground that it was incompetent "in the face of the sacrosanct prescription of section 40 of the Act which clearly ousted the jurisdiction of the court over it".

It is on this basis that Falana submits emphatically that "It is trite in law that jurisdiction oxygenates all proceedings in our courts. Accordingly, the exercise of judicial powers by any court without jurisdiction is a nullity, regardless of the industry invested in it. With the enactment of the ACJA, the suspension of criminal cases by all accused persons has been effectively stopped in Nigeria. Therefore, any judge who orders a stay of proceedings in any criminal trial does so illegally and is liable to be sanctioned by the National Judicial Council".

With the Supreme Court's decision, Saraki's defence team has succeeded splendidly at least for now in its too obvious strategy of stalling the case as much as possible, which has been its principal objective since the entire saga commenced. Now the CCT's decision to commence Saraki's trial on November 19 has been rendered impracticable. It is surprising that Dr Saraki is more concerned about preventing the case from proceeding than seizing the opportunity to demonstrate his innocence and thereby forever silencing his political opponents and giving a phenomenal, possibly unstoppable, boost to his political career.

Earlier, in continuation of his increasingly desperate politics of survival, Senator Saraki had personally submitted the list of 36 confirmed ministerial nominees to President Buhari at the Presidential Villa. Ordinarily, this menial task should have been performed by the President's Senior Special Assistant on National Assembly matters for the Senate, Senator Ita Enang. By opting to personally take the list of cleared ministers to President Buhari at Aso Rock, Saraki only reinforced the perception that he ensured that all the ministerial nominees were cleared to pacify the presidency and facilitate a political resolution of his CCT trial dilemma.

Ironically, many of his colleagues support Saraki because they see him as symbolising the independence of the National Assembly as a separate arm of government autonomous both of the executive and the political parties. Yet, it is clear that as long as the CCT case remains an albatross around his neck, Saraki and by implication the Senate as an institution will be a pliant and servile tool at the beck and call of the executive.

The only way Saraki can offer bold, courageous and effective leadership to the Senate and help strengthen the independence of the National legislature is for him to convincingly and clearly prove his innocence of the charges against him before the CCT. A political solution that offers relief to the Senate President will not only irreparably damage President Buhari's anti-corruption onslaught, it will render Saraki and the Senate he leads continuously vulnerable to external threats and blackmail if he does not kowtow to the wishes of his benefactors.