By Daniel Kanu
Assistant Politics Editor
Constitutional lawyer, Ben Nwabueze, has taken a break from retirement to criticise President Muhammadu Buhari’s style of governance, accusing him of foisting a dictatorship on the country and promoting Islam.
He also railed at the executive arm of government for trying Senate principal officers in court over an allegation that, even if it were true, is an internal affair of the Senate.
Nwabueze, a Senior Advocate of Nigeria (SAN) and a professor of law, told TheNiche in an interview in Lagos that Buhari has committed many offences in the past one year in office for which the National Assembly (NASS) should impeach him.
But he lamented that it will be impossible for the lawmakers to carry out the task.
Saraki, Ekweremadu
He used the words “absurd” and “incompetent” to describe the comment by the Secretary to the Government of the Federation (SGF), David Lawal Babachir, that Senate President, Bukola Saraki, and Deputy Senate President, Ike Ekweremadu, do not personify the Senate.
Saraki, Ekweremadu, and two other senior staff of the Senate bureaucracy are facing criminal charges for allegedly forging Senate Standing Rules in the build-up to the inauguration of the Senate on June 4, 2015 and their emergence as principal officers.
“For instance,” Nwabueze argued, “The forgery case instituted against the Senate president, his deputy and two others is gross misconduct which is a ground for impeachment and removal.
“It is gross misconduct but that cannot happen because the All Progressives Congress (APC) controls the National Assembly and impeachment of the president can only happen in the National Assembly and the Constitution prescribes two-thirds majority to impeach the president.
“You cannot muster it. I cannot see the National Assembly as it is ever impeaching him. Rule that out although he has done enough to be impeached and be removed from office.”
Islamic agenda
Nwabueze accused Buhari of promoting an agenda to Islamise governance and of using the “war against corruption” as an opium to seduce Nigerians and the international community and turn attention away from his agenda.
“The man (Buhari) is a strategist or at least he has some strategists behind him. This is a carefully planned exercise to capture the minds of Nigerians.
“He laid the foundation very well, spent a lot of time and money travelling all over the world to get the goodwill and buy-in of not only Nigerians but the international community.
“Everybody wants to be in the bandwagon of the war against corruption. He travelled to many countries trying to secure their goodwill and he has gotten it.
“So, with that, he now thinks he can do anything he likes because everybody is clamouring for the eradication of corruption and they hail him as the messiah.”
Nwabueze warned that, contrary to what some Nigerians think, Buhari is neither a messiah nor working towards being one.
He insisted that Buhari’s purpose in government and agenda is to “foist Islamic hegemony on us. Let us be clear about this. He cannot convert me and he cannot convert you to Islam, but he knows what he is doing.
“He is busy Islamising the government by planting die-hard Islamists in key positions, while unsuspecting Nigerians are behind him, hailing him as the saviour of Nigeria. That is what is happening.”
Nwabueze alleged a carefully orchestrated plot that started right from the APC primaries, lamenting that the Islamists are entrenched.
“They know what they are doing. This started right from the APC primaries. I said that in my earlier interview with TheNiche.
“That was where I parted company with the APC. Otherwise, I was in support of the Peoples Democratic Party (PDP) being flushed out. That was where the strategy started.
“The Islamists knew what they wanted and they knew that Atiku [former Vice President Atiku Abubakar] could not give them what they wanted.
“Atiku is a Muslim but a moderate Muslim. So Atiku got only 953 votes and Buhari got over 3,000 votes. That was what happened and that was where we went astray.”
Nwabueze said the chieftains of the APC did not foresee the plot and rued that it is already too late for them to do anything to stop Buhari.
“Now, there is nothing the APC as a political party or Bola Tinubu, the godfather, can do. Buhari is there and the power is in his hand. What can Tinubu do? Nothing.
“Buhari is there with his band of Islamic strategists, and it is not that they are doing any serious thinking beyond entrenching Islam. They are good in planning and pursuing that agenda. They have gotten us.
“They have secured the goodwill of most Nigerians and anybody who comes now and makes noise will be hushed down and accused of not supporting the war against corruption.”
Nwabueze said with the NASS castrated and political chieftains blackmailed into silence, the only hope of stopping Buhari from executing his dictatorship lies with the media, the fourth estate of the realm.
“The way out as far as I can see is to call his bluff through the ongoing forgery case, to call him to order. Unfortunately, the National Assembly does not enjoy the support of the media but it needs the support of the press. That is the truth.
“Not much can happen unless the media is behind the fight to stop Buhari from imposing dictatorship. Apparently, the president does not want to listen to anybody but he has to be stopped and this is the opportunity to stop him.
“We are in danger. You have to be careful, otherwise they will pounce on you, your family and your business. Everybody is scared. Are the ministers saying anything? Everybody is keeping quiet, partly because their hands are not clean.
“Nobody, except a few exceptions, can be governor of a state for eight years and won’t have some issues. It is not possible.
“So, Buhari has gotten us cheap. The war against corruption is the talisman. That man is clever, at least to the extent of listening to the strategists who came up with the war against corruption stuff.
“The slogan is if we don’t kill corruption, corruption will kill us.
“So the ball is in your court – journalists. My experience has taught me that in this country, not much can be achieved without the press. Not much.
“Nigerians are so docile, the apathy is sickening. Our memory is too short. Moreover, everybody wants to survive, especially now that there is hunger.”
Babachir’s statement
Babachir had issued a statement accusing “the two leaders of the Senate” of creating the “erroneous impression that by their arraignment, it is the entire Senate and indeed, the legislative arm of government that is on trial.”
He accused them of trying to hoodwink Nigerians into believing “that their prosecution is in utter disregard by the executive arm of government for the constitutional provisions of separation of powers and that preferring the forgery case against them is a vendetta exercise.
“It is important to emphasise that this case involves only the four accused persons and should not be presented to the unsuspecting public as involving the entire Senate of the Federal Republic of Nigeria.”
Babachir claimed that a case of alleged forgery cannot be preferred against an institution but against individuals.
“To bring the [NASS] as a body into this court case is totally unwarranted. It can only be for other purposes and reasons outside the investigation and legal proceedings.”
But Nwabueze insisted that Babachir’s comment was “the height of absurdity and totally incompetent” and betrays “the degree of ignorance that should not be associated with the high office of the Secretary to the Government of the Federation.”
He said the absurdity of Babachir’s take on the saga so upset him that he was provoked into coming out of retirement.
“I urge members of the National Assembly to keep away partisan politics in all this. This matter transcends partisan politics. It is our democracy, our Constitution that are in danger.
“They should appreciate this and come together to try and prevent the looming danger.”
Senate president personifies Senate
Predicating his position on four issues, Nwabueze said: “The first one is the claim by the SGF that it is the individuals and not the Senate that are involved. This statement is the height of absurdity and totally incompetent.
“It is incompetent because he does not understand that the Senate is an abstraction. It is a legal person but without a body.
“It is personified by the Senate president and deputy Senate president. They are the alter-egos of the Senate like it is in any company.
“The managing director of a company is its alter-ego because it is an abstraction, a legal person without a body.
“The Senate president and the deputy Senate president are the alter-egos of the Senate. Just like the corporation or a company, the Senate is an abstraction.
“It is a legal person but an abstraction. It has no body and no mind and the body of that abstraction called Senate is the Senate president.
“Who are really the directing minds and will of the Senate? They are the Senate president and deputy Senate president. They are the alter-egos, the personification of the Senate.
“So, to say that the whole Senate is not involved is complete nonsense. The man (Babachir) simply doesn’t understand what the legal position is. And that is why I said it is an absurdity. It is an incompetent statement coming from the SGF.”
Absurdity of forgery allegation
Nwabueze said the second absurdity in Babachir’s claim is the forgery allegation itself.
He insisted that the allegation in itself does not make sense.
“Saraki and Ekweremadu can only be said to forge the Standing Rules in their capacity as president and deputy Senate president. That is the only capacity that it will make sense or while acting in that capacity.
“So, how can the SGF now claim that they are being prosecuted in their private capacity for an offence they could only have committed in their official capacity?
“So, what they did in their capacity as president and deputy Senate president cannot be divorced from the Senate.”
Principle of separation of powers
Nwabueze also questioned Babachir’s contention that Saraki’s prosecution by the executive for an action he purportedly took in his capacity as a presiding officer of the Senate does not rub off negatively on the principle of separation of powers.
“That shows he doesn’t understand what separation of powers is about. What are the implications of separation of powers? What are the incidents of separation of powers?
“They don’t understand and they don’t care. They don’t take the trouble to understand what it all means, the fundamental principle of our law.”
Nwabueze argued that the executive arm of government has contravened Section 5 of the Constitution by the arraignment.
He cited the U.S. Supreme Court ruling in Humphrey vs United States (1934) to buttress his point.
“If fundamental necessity of maintaining each of the three general departments of government entirely free from the control of coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question.
“So much is implied in the very fact of the separation of the powers of these departments by the Constitution, and in the rule which recognises their essential co-equality.
“The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there … the independence of each department requires that its proceedings ‘shall be free from the remotest influence, direct or indirect, of either of the other two powers.
According to Nwabueze, “This (U.S. Supreme Court rulling) is the implication of the principle of separation of powers. Prosecution in itself is a coercive process. You want to use the coercive power of the courts to influence the proceedings in the Senate.
“You want to send the Senate president and deputy to prison for forgery if this prosecution succeeds. That is what they are trying to do.
“Can you really imagine this, in a system where there is separation of powers, where the implication includes that you must not impose your control or influence, even the remotest influence, on the other, and we maintain the principle of co-equality?
“You cannot use coercive influence and the most visible, concrete coercive influence is prosecution in the courts.”
No comparison with former House Speaker Salisu Buhari’s certificate forgery
Nwabueze also said it was wrong to equate the alleged forgery of the Senate Standing Rules with the certificate forgery by former House of Representatives Speaker, Salisu Buhari.
“They are completely different issues. We are talking about forgery of the Standing Rules of the Senate, not the standing rules of the executive. Whatever your rules may be, keep your rules. That is the spirit of the principle of separation of powers.
“Standing Rules is for the regulation of the proceedings of the Senate. Section 60 of the Constitution gives the National Assembly – the Senate and House of Representatives – power to regulate its own proceedings.
“It is in pursuant of this that the Standing Rules were adopted to regulate the proceedings. So, it is the internal affairs of the Senate.
“So, what is the business of the executive claiming that it was forged? If there is forgery of the rules, it is for the Senate to say, not for the SGF. It is for the Senate to say our rules have been forged and for the senators to say what sanctions to impose on those who forged the rules.”
On attorney general’s powers to prosecute
Nwabueze added: “Then the fourth aspect of this whole matter is the statement made by the Attorney General [Abubakar Malami] that he is empowered under Section 174 (1) of the Constitution to undertake and initiate criminal proceedings in any court of law, faulting the argument of the Senate that what transpired was an amendment.
“But Section 5 (1) of the Constitution says that, ‘Subject to the provisions of this Constitution, the executive powers of the federation shall be vested in the president and shall extend to the execution and maintenance of this Constitution.’
“All laws made by the National Assembly shall extend to the maintenance and execution of the Constitution.
“The execution of the laws of the Constitution which includes prosecution under Section 174 (1) means that the AG is merely an instrument of the president. So, prosecution is part of the executive power vested in the president by Section 5.
“But how can people lose sight of the fact that that power, as enormous as it is clearly stated to be, is still subject to the provisions of the Constitution?
“It is subject to the separation of powers. You must exercise that power of criminal prosecution subject to the provisions of the Constitution, including particularly the separation of powers with its incidents and implications.
“You cannot because Section 174 says you can initiate criminal proceedings against people do it in disregard of separation of powers.
“You must exercise it subject to the separation of powers, subject to the co-equality between the arms of government, subject to the freedom of each arm of government from coercive influence and control.
“It is at variance with the Constitution if you think you can just drag the Senate president and deputy Senate president to court because you have powers to prosecute.”