By Barr. Afaga Jude
It would seem that most of us agree that the Senate has no right to suspend a Senator on the basis only of its local rules as that directly infringes the unimpeachable right to representation of a section of the Country. Well, even if we didn’t, the Courts have stated, by constant repetition, that this is the law for which it offers no apologies.
Yesterday, my most important claim to being a Nigerian with a say in matters of my own governance walked into the Senate Chambers to give voice to my identity but was apparently resisted, with the result that pandemonium erupted. In the midst of this, a certain man, so far nameless and apparently allowed along with the Senator into the chambers in red of much that we desire, picked the mace for trophy, which it would seem he was later to hoist at a refuse dump somewhere at the entrance to the city centre. Some would argue that the mace was only returned to the muck from which it finds sustenance, seeing that it has provided authority majorly for that which is regrettable about our democracy. But that’s truly another matter.
Many of those who by qualification know, or should know, flay the action of Mr. Omo Agege in marching onto the Senate Chambers as a treasonous affront on our democracy and have outdone themselves in describing it with unflattering words which volunteer their bombast just by their sound. I hold a different view and will argue that his actions were in fact an imperative of law, in respect of which he would be at best dilatory and at worse indolent if he hadn’t so undertaken.
For the purpose of this conversation, let’s stick with verifiable facts and some understanding of law.
i. Mr Omo Agege had said some things which riled the Senate to which he belongs, over its attempt to reorder the sequence of the general elections due for next year and in pursuance of what it understood as its disciplinary powers over members it assigned the matter for consideration to its privileges committee. Mr Omo Agege then approached court and obtained an injunctive order restraining the Senate from commencing, continuing or acting on the result of the investigation, so to speak.
ii. This further irked the Senate which not only continued the said investigation in respect of which it was only to secure at best, the insistence by Mr Omo Agege that the matter was before court and pointers to the Senate’s own rules which demanded that it discontinues sitting on any matter which was the subject of the court’s adjudication. However, the Senate committee was wearing ear plugs and was only to remove them when it required to listen to its own recommendation that Senator Omo-Agege be suspended, which was accepted by the full house adequately superintended to achieve the desired result.
iii. Thus as at yesterday in fact, we had the local rules of the Senate as well as a subsisting interlocutory order of court amongst similar judgements elsewhere on the side of Mr Omo Agege, while the Senate clothed itself with the assessment that its own notions of its power superceded the clear interpretation/adjudication of the courts on the matter.
iv. People have argued that with this state of affairs, Mr. Omo Agege ought to have gone back to court to seek its enforcement powers rather than take the law in its own hands, whatever that means. I am not sure however how much the postulators of this position understand of the nature of the order that was obtained by Mr Omo Agege.
Certainly, it was an injunctive order and not an executory one. Let me explain. An executory order is one which orders an opposing party to do a positive act failing which the organs of court may be called in to obtain its fruit by some further application.
An injunctive order on the other hand, is however actually incapable of execution by the court. What the court may only offer is protection of the actual undertaking of its orders. It is for this reason that whereas what an executory order offers is enforcement, what the injunctive order offers is punishment for its infraction.
If I am clear so far, I shall proceed as follows:
a. That Mr Omo Agege in attending the Senate yesterday was not undertaking any execution of the court’s order by himself, what is typically referred to as self-help, but was acting on the basis of a legal authority which the law had recognized even if temporarily, as requiring no enforcement.
b. That until he in fact walked into the Senate Chambers any claims to a resistance of the court order in factual terms, requiring punishment would only be premature. Certainly, if an order restrains one from interfering with your enjoyment of your property, you must make to and continually seek to actually enjoy that property and be restrained from so doing before you can found a claim for contempt, for example.
I do expect therefore that Mr Omo Agege will continue to attend the Senate Chambers each legislative day as is his right by court order to do, and begin and, if he has already began, continue to meet the resistance at the chambers with the appropriate punitive action as he may find.
He needs do no more, or less!
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