Ndume And Fear Of Double Jeopardy

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AHURAKA YUSUF ISAH writes that aside the possibility of a continuation of his suspension following the stay of execution filed by the Senate against the judgement of Justice Babatunde Quadri returned him to the Senate, Ali Ndume, senator representing Borno South in the National Assembly now faces a courtroom trial after that of Senate’s Ethics and Privileges Committee that found him guilty and punished him with 90 days suspension.

Events which took place on the floor of senate on Wednesday November 16, 2017 gave credence to the belief that if the Senate President, Bukola Saraki was in the chamber the previous day, perhaps the Senate’s resolution that day to allow Senator Mohammed Ali Ndume (APC Borno South) to resume because he has served out his suspension of 90 legislative days and not to prejudice recent court pronouncements could have been otherwise.

Many senators especially those of northern extraction who felt it’s not in the interest of the region for their number to be depleted even by half opposed the move by some senators wanting Ndume to remain on suspension.

These senators who opposed Ndume’s resumption argued that since senate has filed an appeal against judgement of a Federal High Court in Abuja which voided his suspension, senate should hold that Ndume be asked to remain on suspension pending the determination of that appeal.

But many senators who would not have spoken their minds if Saraki was sitting held sway insisting that enough is enough to Ndume’s suspension. This argument ensued when the senate first met at the executive level which was in camera.  Saraki was away to mark the fifth anniversary of the death of his laate father, Senator Olusola Saraki.

Hence, the deputy Senate President, Senator Ike Ekweremadu, who presided over the plenary, announced that the senate resolved during its 30 minutes closed door executive session that Ndume allowed to resume because he has served out his suspension of 90 legislative days. Besides, he said doing otherwise will diminsh the court judgement in favour of Ndume’s reinstatement.

Ekweremadu said “The senate at the closed door session senate resolved to allow Senator Ndume resume sitting in the Senate from tomorrow (November 15, 2017) after serving the 90 legislative days suspension slammed on him on the 29th of March this year without prejudice to the current court processes.”

But the no love lost between Saraki and Ndume became very obvious on Wednesday, when the later failed to announce the resumption of its former senate leader. Ndume consequently rose through order 43 of the senate’s standing rules to submit that he was away when Senator Isiaka Adeleke died which made him not to be part of tributes and honour the Senate paid the deceased.

But Saraki scuttled the Ndume’s attempt for the Senate to observe another minute silence for late Senator Adeleke who died in April this year. He said sharply and angrily in his ruling, without carrying out any voice votes on his request, that Ndume’s point of order was noted.

“Your point of order is noted,” he said and immediately called on the Senate Leader, Ahmad Lawan to proceed with the next legislative business for the day. A development seen as display of bitterness that exist between the two.

Curiously, Ndume played determinable role in the near coup d’etat Saraki hatched on June 9, 2015 that enthroned Saraki, when they defied the position of their party, APC, and with 47 out of 109 senators, Saraki emerged the Senate President in a contest that was characterized by subterfuge and guile.

The 47 senators are majorly made up of PDP members as APC senators went for their party meeting when they gathered to elect Saraki and Ike Ekweremadu as senate president and deputy senate president respectively. Of course, Saraki paired with Ekweremadu of the opposition PDP to set aside APC preferred candidates of Senators Ahmed Lawan and George Akume for the Senate President and its Deputy respectively.

There is strong indication that trouble is yet to be over for Ndume. This is because senate which is a creation of law as well as the highest lawmaking body does not want to be seen disobeying court order.

Following judgement of the Federal High Court in Abuja nullifying Ndume’s suspension, senate announced that it was dissatisfied with the decision and filed notice of appeal just as it filed an application for stay of execution of the court judgement.

Ekweremadu’s statement that the decision to readmit Ndume was, “without prejudice to the current court processes”, is said to mean that once the court grants the application for the stay of execution of the court judgement, senate will declare Ndume suspended pending the determination of the appeal filed against the judgement of the Federal High Court in Abuja.

A legal analyst said Ndume will resume suspension the moment the court grants senate’s application, already filed before the court for stay of execution of the judgement nullifying his suspension.

“Senate simply resolved that Ndume be allowed to resume in order not to prejudice the current court processes, meaning not to go against the judgement that set aside his suspension in the first place.’’ In other words, Ndume will be re-suspended in due course.

According to an Abuja base lawyer, Alasa Ismail, such situation, although not contemplateable but shall be akin to “double jeopardy’’ in law. It can be contested because Section 36 (9) of the 1999 Constitution as amended has declared such step illegal. It states that, ‘No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence, having the same ingredients as that offence save upon the order of a superior court.”

At the foundation of criminal law lies the cardinal principle that no man shall be placed in jeopardy twice for the same matter

In the history of criminal law, this rule has been described as the most fundamental or all –pervasive. In the words of Rand J of the Supreme Court of Canada: The rationale for the rule is the protection of the individual from the oppressive tendencies of the state, which with its vast resources can perpetually deprive an individual his personal liberty through several frivolous trials.”

As succinctly stated by Black J, of the Supreme Court of the United States in Green v. United States, ‘’The underlining idea, one which is deeply ingrained in at least the Anglo-American system of jurisprudence is that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’’

Ndume’s suspension journey began when he raised a motion on the floor of the senate, demanding from the senate to investigate media reports stating that Saraki imported a bullet proof Range rover  SUV with fake documents; while Senator Dino Melaye (Kogi-west) allegedly forged Ahmadu Bello University, Zaria first degree certificate.

Consequently, senate directed its Ethics and Privileges Committee to investigate the allegations. Like a court trial, Ndume was invited to questioning. The committee headed by Senator Samuel Anyawu later submitted its report which indicted Ndume and exonerated Melaye and Saraki. Anyawu’s committee asked senate to suspend Ndume for 180 legislative days, but this was commuted to 90 days by the senate.

In other words, Ndume faced a trial by the senate committee; even though Section 6 of the 1999 Constitution as amended vested the judicial powers in the courts, which include all inherent powers and sanctions of a court of law, to all matters between persons, or between government and any persons in Nigeria.

According to Barrister Alasa Ismail, senate cannot turn round to re-suspend Ndume after he has served out punishment for the offence senate tried him for, simply because he approached a court to determine proprietary or otherwise of such actions. That would amount to something else. “You can’t beat a child in African setting and taking additional offence because the child dares to cry. That’s cruelty’’.

Addressing journalists after the Senate’s plenary that day, Ndume said he knew what led to the decision and where the meeting was held to remove him.

Ndume’s deepening romance with the presidency was also a cause for a serious concern for senate leadership, especially at a time the Senate president was standing trial at the Code of Conduct Tribunal (CCT).

Ndume.

Justice Babatunde Quadri had held last Friday that Ndume’s suspension was illegal, unlawful and unconstitutional. It consequently set aside the suspension letter, dated March 30, 2017 issued to Ndume by the senate.The court also ordered the president of the senate and the senate, who were the first and the second respondents in the suit filed by Ndume, to pay him all outstanding salaries and allowances.