Chief Robert Clarke (SAN), in this interview with GBENRO ADEOYE, speaks on the trial of Senate President Bukola Saraki and other issues
What do you make of Senate President Bukola Saraki’s trial as some people have described it as political?
I am not going to say that politics does not come in because the Attorney-General is from a political party and subject to party rules. That is why most of us have been canvassing that the post of Attorney-General should be split into two as it is done in Britain now and many other civilised countries. The Attorney-General should be an independent person and a lawyer of high repute. Then the Minister of Justice can be a politician.
Since 1999 when the constitution came, politics has taken over everything in Nigeria. Everybody wants to be a politician. Many young lawyers, doctors, engineers, instead of practising their professions, want to become politicians because it is the easiest way to make money and names.
Therefore in the process, Saraki’s case is being looked at from the political angle. But you were alleged to have paid back a loan you incurred as a private citizen with public funds as governor, you took an oath that you would declare your assets and then allegedly declared some and didn’t declare some, or that while in office, you would not open a foreign account and you allegedly operated a foreign account.
I believe that nobody is hounding him, although, the motive to bring him to court might be political, I don’t doubt that. And I agree with him. If he had not contested for the post of the Senate President, his travails might not have happened.
But when he decided to fight his party, then he should be ready for the consequence. This is politics. A man who goes to a lion’s den knows the consequences.
So the fact is that he has been accused of committing an infringement of the law and he is being called to answer to those infringements. Whether it has political connotations or motives, our opinions are divided on it. Those who are in the same political climate with him will say he is being haunted. Those who are against him will say no, let him answer the charges. So it depends on which side of the divide you are.
We are likely to see a situation where a member of the Peoples Democratic Party emerges as the new Senate President if Saraki has to leave the position. How will this impact on Nigerians going by the tension that is already between the executive and the legislature?
Democracy is a question of numbers. Today, the Peoples Democratic Party is the minority party in the Senate but by aligning with dissidents in the All Progressives Congress, they have formed a strong force which is why they were able to put Saraki and Ike Ekweremadu in the two top positions. But many things have happened within the last nine months. I doubt whether any politician in the All Progressives Congress today, who has a history as a politician, will dare try to defy the party.
This is because what Saraki is going through today is a political vendetta. Don’t let us tell lies to ourselves. You have challenged your party and without your party, you could not have been elected to be a senator.
Now, other APC members would have learnt their lessons because many of them have not fully declared their assets too. The Yoruba have a proverb that says, ‘Pasan ti won fi na iyale, o n duro de iyawo’. That means that the treatment meted out to the first wife awaits the second wife too. So they will have to take it cool because they know Saraki is paying the price for being overambitious.
The senators ordered for new SUVs, which some Nigerians, including the Labour union, have asked that they return. What is your view on the matter?
I’m always not a judge of character. The Bible says ‘Judge not so that ye shall not be judged.’ So I don’t want to judge them but you cannot run away from facts. All these senators have been granted loans for personal cars. These SUVs are mere luxuries, although the senators claim that they have to do committee works.
But I believe that this is coming at the wrong time in Nigeria; a time when the average Nigerian is suffering, and even people like us who are not even average. So it is wrong for any select few to believe that they can do things with impunity.
Well, I don’t blame them. Many of them for the past 16, 17 years have been living on government money. The impunity attached to it is what I find painful. What is in cars? I was reading a magazine and in it, a senator that was previously a member of the House of Representatives was showing us his mansion and the exotic cars he is driving. For the past 17 years, he has been spending government money, and these are the people who want to ride more SUVs. How many cars do they want to drive at a time? I believe the trade union movement will let them know that they cannot treat Nigerians with impunity.
People think it is a dangerous precedence for us to allow Saraki’s trial to go on. Do you also think so?
About 10 years ago, I had to defend former Governor of Plateau State, Joshua Dariye, at the same tribunal. He was governor at the time. When a state of emergency was declared in the state, Dariye was asked to step aside as governor for six months.
Former President Olusegun Obasanjo then, through his Attorney-General, gave a legal opinion that since he was on suspension for six months, his immunity had also been eroded.
So the same CCT issued him with summons to appear before it. What did I do? I had to take an originating summons in the Federal High Court to stop the summons being issued to him. My argument was that whether he was suspended or not, he was still the governor and therefore, he still had his immunity. My submission was upheld. So Saraki is not the first person.
But as I said, it depends on which side of the divide you are. Many things have been politicised in Nigeria. If you are his supporter, you will believe that there is a vendetta against him. But if you are an independent onlooker and believe in rule of law, you will not hesitate to say ‘yes, let them make him an example.
’ Maybe and I am not even sure, other politicians will learn from that and say if we can pick the Senate President, who am I as a member of the House from Okitipupa North or wherever not to declare my assets? So it is a lesson we are learning and we are passing through history. But I, as Robert Clarke, believe that Saraki is the architect of his own misfortune.
If he had not gambled to dare his party to contest the seat of the Senate President, I don’t think he would have found himself in this situation. So he is the victim of his own act. And he should be ready as a man to bear the consequences.
So do you think that the Code of Conduct Tribunal amendment bill, which had passed first reading, but recently suspended by the Senate, was all about Saraki?
In the course of parliamentary activities, there is nothing wrong in amending a subsisting act. So, what the Senate did was nothing abnormal. However, the issue of the CCT as of today vis-a-vis Senate President Bukola Saraki’s trial has become a front burner issue in Nigerian politics. But why was it that the Senate decided to amend the Act at a time that Saraki’s trial was going on?
This is because if you want to amend an act, there must have been a previous notification to the Senate either by an outside interest or the President who intends to amend it. It raised questions on morality. Were you doing it to save Saraki or to protect yourselves?
I can assure you that 80 per cent of the members of the National Assembly today have not declared their assets, so it was not Saraki that they were trying to save.
They are trying to save themselves. This is because even if the Act was amended today, it would not help Saraki. Under the constitution, any act cannot have retrospective effect. I believe that it was a personal move by the National Assembly to cover their own backyard; that was the whole purpose because they knew that any of them could be affected tomorrow.
I don’t believe it was about Saraki. The senators didn’t want to be the next victims and they should have been bold enough to tell Nigerians that what they were doing was to cover our own backyard. That is my view.
Let us have it clear. Many people don’t know that the CCT cannot sentence you to imprisonment. What the constitution has asked the tribunal to do is if you are found guilty of not declaring your assets or if you are found guilty of opening an account when you should not have one. You would be debarred from holding any public office for 10 years. On top of it, you will forfeit the assets. It cannot sentence Saraki to imprisonment because it does not have the power to do that. But what the law says is this: if in the course of investigating acts brought before CCB, it finds some criminal acts attached to it, then they will refer the matter to another court that has the power to try criminal matters because they don’t have the right.
Does that mean he will not just only cease to be the Senate President, he will also cease to be a senator?
Oh, yes, he cannot hold any public position at all. Of course, if you are found guilty of a criminal act, the most honourable thing to do is to resign.
The senators had planned to use the amendment to ensure that three judges get to sit on matters unlike now that only two judges are sitting on Saraki’s matter. Do you agree with them that three judges should sit at the tribunal?
The constitution has provided for three judges; the issue is not in the law, the issue is in the operation of the law. Saraki’s lawyers are also saying that the constitution says the tribunal must be made up of three members and that until those three members sit at a given time, then there is no quorum. They also said that two judges cannot form a quorum.
That was the issue that went to the Supreme Court.
Saraki’s lawyers said the Act says that the court must consist of three members. And they said ‘you want to try our client but we are seeing only two people here.’ The judges must be three.
So the matter went to the Court of Appeal, then the Supreme Court. Though, the constitution of the court says three judges, but when two of those three sit, they form a quorum. Let me give you an example, today under the constitution, there are about 17 judges making up the Supreme Court.
That does not mean that at any sitting of the Supreme Court, the 17 judges must be there. When five or seven of them sit in relation to a constitutional matter, it is still the judgement of the Supreme Court.
So the number of Supreme Court judges that sit at any point in time does not draw away from the fact that the judgement is a Supreme Court judgement. So since the Supreme Court says two judges form a quorum; that is the law, until another panel of the Supreme Court sits and says it made a mistake and that it would be reviewed.
What if the two judges differ and are unable to agree on the judgement?
Well, at that stage, a new situation arises and we will look at it. Let us cross the bridge first. That is why normally, it is good to have three judges, so I agree with you. The law does not say what happens when two judges do not agree. So let us wait and see.