By Afaga Jude
Many of those who by qualification know, or should know, flay the action of Senator Ovie Omo-Agege in marching into the Senate chamber 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.
- Omo-Agege had said some things which riled the Senate to which he belongs, over its attempt to reorder 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. Omo-Agege then approached the court and obtained an injunctive order restraining the parliament from commencing, continuing or acting on the result of the investigation, so to speak.
- 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 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 Omo-Agege be suspended, which was accepted by the full house adequately superintended to achieve the desired result.
Iii Thus as at Wednesday, 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on the side of Omo Agege, while the Senate clothed itself with the assessment that its own notions of its power superceded the clear interpretation/adjudication of the courts on the matter.
- People have argued that with this state of affairs, 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 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:
- That Omo-Agege in attending the Senate on Wednesday 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.
- That until he in fact walked into the Senate Chamber 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 Omo Agege will continue to attend the Senate 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 chamber with the appropriate punitive action as he may find.
He needs do no more, or less!
*Jude writes from London.