What the AGF didn’t think about before this messy fight

Next week, the Senate President and his deputy will appear before an Abuja High Court to answer charges bordering on forgery. This has generated all kinds of protest from a number of Senators, especially members of the opposition.

The recent criminal charges filed by the Attorney General of the Federation (AGF) show that the face-off between the Executive and Upper Chambers is not going away anytime soon. This new dimension is not likely to augur well for the populace.

In reacting to the recent court summons, the PDP has announced that it will cease to support the President. This might mean delaying any Executive Bill. But this is not actually the most worrisome dimension the fight might take.

These aggrieved lawmakers might not stop at harassing the AGF when he appears before them, they might also decide to fight dirty. And of course waste tax payers’ money in subsequent legal battles.

Just as a Federal Court in America ruled that Congress had the standing to sue Obama for his administration’s health care spending, President Buhari could also be sued. And these aggrieved Senators might explore this option.

These counter legal battles would surely be a distraction to the Executive and Legislature. And, of course, governance might take the back burner.

In the U.S., though Presidents have immunity from civil lawsuits that claim their executive decisions inflicted personal damage on someone else, they can be sued for actions they take as Executives. This might be applicable in Nigeria.

Yes it might. Even though Subsections (1) and (3) of Section 308 of the country’s constitution provide immunity for the President and his Vice, Subsection (2) states clearly the circumstance under which the President cannot claim immunity.

This subsection reads: “The provisions of Subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.”

Note that by referring to “this section”, the above quoted subsection refers to the immunity provisions of the whole Section 308.

All the Senate has to do is to consult its lawyers on the wording of the lawsuit. Obviously, no matter what the Courts might have said about the immunity of the Executive, a properly framed lawsuit of this nature would require interpretation at the nation’s apex court. All these cost money and would distract both parties from governance.

Since this is likely going to be a street fight, it might not matter to PDP Senators that their own governors might be affected by the interpretation of this section. It would surely be aimed at destabilizing the Executive as much as it has destabilized the Senate.

Obviously, it might be possible to prosecute the President without infringing on his immunity. If these charges are presented in such a manner to look like the President has breached his official duty, or if he is joined as a nominal party to an action, even though he remains the prime target, Subsection (2) of Section 308 might be applicable.

It might cause a political tsunami if Section 308 is interpreted in a manner that will weaken the powers of the presidency. This might not be likely. But, the badly bruised Senate, which is actually a co-equal branch of government with the Executive, might not hesitate going into this kind of fight.

Furthermore, the Senate might go ahead to prove to the Executive that it can also be investigated by the Police for any crime or offence. The law might actual have given room for the kind of investigation being carried out on Ayo Fayose, the governor of Ekiti State.

For example, the Supreme Court has made it clear that a person who enjoys immunity under Section 308 can also be investigated by the police for any crime or offence as required by Section (4) of the Police Act for purpose of preserving the evidence, and to be used after the expiration of the person’s tenure. Of course, this evidence could be used for impeachment as well.

A powerful arm such as the Senate can force the apex court to interpret these laws as it applies to the President. This would surely distract the President and ultimately impoverish the masses, who might be abandoned when the warring parties concentrate on these suits.

Reports have it that some Senators are already contemplating the impeachment option. Should the kind of arrangement which brought in Saraki be reached with some APC Senators, the country might be shocked with an impeachment proceeding. There will always be an allegation to take the Executive on!

All these would be in a bid to call the President to order. At the end, the President might win, but the nation will suffer.

Sadly, what he AGF might have done, inadvertently, is to drag the Judiciary into a political tussle between the Executive and the Senate. Legal scholars say courts are usually uncomfortable getting involved in battles between the Executive and the Legislature.

A political solution should be reached for the interest of our democracy. It seems all the gladiators are hell bent on flexing their muscles. When the house is finally set ablaze, people might blame the Executive for setting the fire in the first place.