14 July 2017

Nigeria: A Tale of Two 'Impeachments'

Photo: Vanguard
Dino Melaye.

AHURAKA YUSUF ISAH compares on-going attempt to recall Senator Dino Melaye and the Senate's threat of impeachment should acting President Yemi Osinbajo further breach constitutional provisions regarding confirmation of appointments.

Tuesday July 4, 2017 will forever be remembered as a day the twin threats of Kogi West Senator, Dino Melaye's recall and Senate's move towards impeaching acting President Yemi Osinbajo rocheted in the upper chamber.

In 1587, Pope Sixtus V formally established a role for Canon Attorney or Devil's Advocate in the canonization process in the Roman Catholic Church to argue against the canonization (sainthood) of a candidate in order to uncover any character flaws or misrepresentation of the evidence favoring canonization.

The continuous retention of Ibrahim Magu in office as acting chairman of the Economic and Financial Crimes Commission (EFCC) by the Presidency after he was rejected on March 25 this year following DSS report by the Senate was not just an act of provocation, but now a veritable instrument, the Upper Chamber is using to assess credibility of other nominees forwarded to it for confirmation. Just as Devil's Advocate fixes in ordinary parlance, Senate must find faults with whatever comes from the Presidency to it.

Hence, Magu who is more or less euphemism for Achilles' heels of the Presidency whenever it attempts to forge a peaceful co-existence with the Senate; like Sword of Damascus for the Senate, it is unable to tolerate or accept him being in circulation at whatever capacity. Yet Section 171 does not avail the Senate in the strict sense of it for his removal. Behold, Magu himself continues to be seen by many politically exposed persons as " an officer worse than terrorists", "rattlesnake", "Dracula" and "nightmare"; the fear of who must begin with one's wisdom.

Other count charges against the Presidency, include an irritating and detestable statement credited to Osinbajo to the effect that after all, the President was empowered to make some appointments without seeking legislative approval as provided in Section 171 of the Constitution.

Though never mentioned anywhere, the federal government's going ahead to appeal against the Code of Conduct Tribunal (CCT) judgement which upheld the no-case submission filed by the Senate President, Bukola Saraki and consequently acquitted and discharged him on June 14, 2017; lays credence to the impression that the Presidency is yet to sheath its sword against the Senate leadership.

It's also an unspoken word that once Melaye is brought down, Saraki becomes an easy prey, hence the process of recall being embarked upon by Melaye's constituents which the Independent National Electoral Commission (INEC) is processing or "promoting" is further broadening the schisms between them. Just on July 3, INEC released schedule for the verification exercise for Melaye's recall exercise.

What is most apparent to many Nigerians in the renewed offensive was an exercise of rehearsing struggle to inherit the power or Aso Rock if President Muhammadu Buhari is unable to return or recover from his medical challenges, May Allah Forbid that.

Of course, many believed that there was more to it than meets the eye when Senate on July 4 with venomous profundity of a combatant party warned Osinbajo not to move further or cross the red line, otherwise it will revert to legislative process or invoke its constitutional command against him.

Senate was just reacting to a letter from the acting president requesting for the confirmation of Mr Lanre Gbajabiamila as the chairman of National Lottery Commission. Senate did not just put this confirmation on hold but suspended confirmation of any other nominee, or entertained any other letter or request from the Presidency.

It asked Osinbajo to withdraw same immediately, even as it further maintained that the acting president should choose both to respect the constitution and laws as it relates to confirmation of appointments and obey the rejection of all nominees by it or face appropriate legislative action.

Senate President Bukola Saraki who read the acting president's letter on the confirmation of Gbajabiamila during plenary said, "This is an issue that we have to once and for all address. We cannot pass laws and see that the laws are not being obeyed. This resolution must be obeyed by the acting president, otherwise we will take appropriate actions and resolutions".

But the Senate had earlier protested against Magu's non-removal and on March 28, 2017, suspended the consideration of 27 persons nominated by President Buhari as Resident Electoral Commissioners. But, fifteen of them were later confirmed on June 1, 2017.

Osinbajo had equally ruled out the possibility of Buhari replacing Magu with another nominee. He said the president did not find the DSS report, which was the basis for Magu's rejection, as a strong reason to replace the EFCC boss. This was reiterated when Governor Nasir El-Rufai who represented Osinbajo on July 6 at the opening of EFCC office in Kaduna, said the acting president told him that Magu will not be removed.

However, many lawyers have argued that the Senate was rather exercising both powers of legislation and executive functions by asking Osinbajo to remove Magu as acting chairman of the EFCC. According to Mr Femi Falana (SAN), from all indications, the Senate merely anchored its resolution on section 2(3) of the EFCC Act which provides that "The Chairman and members of the Commission other than ex-officio members shall be appointed by the President and the appointment shall be subject to confirmation of the Senate."

"Before passing its resolution, the Senate ought to have known from the clear and unambiguous provision of section 2 (3) of the EFCC Act that it has not been vested with the power to confirm or approve any person appointed by the President to hold office in an acting capacity. To that extent, the resolution of the Senate constitutes an affront to section 171 (1) of the Constitution which stipulates that: "Power to appoint persons to hold or act in the offices to which this section applies to remove persons so appointed from any such office shall vest in the President."

"The offices involved are those Head of Service, Secretary to the Government of the Federation, Permanent Secretaries and Heads of extra ministerial departments of the Government. It is further submitted that Section 2 (3) of the EFCC Act relied upon by Senate to justify the confirmation of EFCC chairman is inconsistent with section 171 (2) of the Constitution. Indeed, of all the positions listed in subsection 2 of the Constitution, it is only in the appointments of ambassadors and high commissioners made by the President which require the confirmation of the Senate. See section 171(4) thereof. Since the EFCC is an extra ministerial department of the Federal Government the appointment of its Chairman does not require the confirmation of the Senate. In other words, Section 2 (3) of the EFCC Act is inconsistent with section 171 (2) of the Constitution. To that extent, the resolution of the Senate based on the EFCC Act is an exercise in futility", Falana argued.

Senate had also resolved that INEC merely has the duty to only exercise the process of recall but not to confirm it, insisting that only the legislature has the constitutional backing to approve removal of a lawmaker. It said the activity of recall of Melaye as embarked by INEC is an exercise in futility and that it will not stand because the electoral body does not have constitutional mandate to approve confirmation of recall. Also, it held that the financial appropriation of INEC on the recall was not captured in the recently signed 2017 budget, a situation it said allocation must be sought through virement subject to approval of the Senate. This implies that the Senate is bent with inclination not to allow INEC to connive with the people of Kogi West Senatorial district with an aim to recall its member, Senator Melaye.

Following a three-page advertorial published in some national dailies on July 11 by the Attorney- General and Commissioner for Justice in Kogi State, Ibrahim Sani Mohammed where he kicked against Senate's position on the recall process, the Deputy Senate President, Ike Ekweremadu insisted Senate has a role to play.

"He is saying that the senate has no role. I stand by what I said the other day and I would like to take him to Section 68(1h) and (2) to show him the role of the Senate, which he says has no role.

"Section 68(1h) reads, 'the President of the Senate or, as the case may be, the Speaker of the House of Representatives receives a certificate under the hand of the Chairman of the Independent National Electoral Commission stating that the provisions of section 69 of this Constitution have been complied with in respect of the recall of that member.

"That was the section the Attorney General was referring to but he mischievously refused to state the provisions of section 2 or probably out of Ignorance, he did not put Section 68(2) which states 'the President of the Senate or the Speaker of the House of Representatives, as the case may be, shall give effect to the provisions of subsection (1) of this section, so however that the President of the Senate or the Speaker of the House of Representatives or a member shall first present evidence satisfactory to the House concerned that any of the provisions of that subsection has become applicable in respect of that member.

Contrary to the position of the senate on Melaye's recall, some lawyers have held that the power to recall any legislature at both the States and National Assembly rest squarely on the constituents and INEC; insisting that both provisions of Constitution and the Electoral Act are unambiguous with the processes of recalling any legislature, adding that there is nowhere legislative process by ways of motion, debate or voting by members of any legislative house are required before a member is recalled.

According to a legal practitioner based in Abuja, Alasa Ismaila, "Section 69 of the Constitution addressed recall for senators and members of the House of Representatives. It simply states that member of the Senate or of the House Representatives may be recalled as such a member if (a) there is presented to the chairman of the INEC, a petition in that behalf signed by more than one-half of the persons registered to vote in that member's constituency alleging their loss of confidence in that member; and (b) the petition is thereafter, in a referendum conducted by the IINEC within ninety days of the date of receipt of the petition, approved by a simple majority of the votes of the persons registered to vote in that member's constituency.

After the referendum, INEC chairman will write the Speaker or the Senate President that the Section 69 has been complied with, in case by simple majority of the constituents' votes the member loses in the referendum.

"Section 68 (1a -ah) discusses situation under which member shall loose membership and the only provisions that deals with recall is Section 68(1h) and it is only INEC Chairman that can determine or issue certificate for recall informing the speaker or the Senate President that section 69 is complied with.

"It is that certificate or letter notifying him that the Senate president brings to the attention of his colleagues that the member has been recalled. This provision don't ask the member to debate or vote after referendum has been conducted.

"That section, as stated, does not require the consent of the presiding officers of the National Assembly for the recall but only seeks to inform them of the outcome, contrary to the claim of the Senate that it would also verify the legitimacy of the votes before a conclusion is made. If Melaye's recall succeeds, INEC will conduct a by-election in his constituency".

Former president of Nigerian Bar Association (NBA), Mr Joseph Daudu (SAN) averred also that Senate has no role to play in the recall exercise of Melaye.

"Section 68 (2) simply asked legislative leadership or member to give effect to process undertaken and completed under Section 68 (1). It never requires legislative exercise whatsoever like voting, motion or resolution after certificate is issued and transmitted by INEC chairman confirming to leadership of the Senate that a member has been recalled.

"What other evidence are the senators talking about other than the certificate written by INEC chairman and delivered to Senate President in this instance; confirming that recall process is completed", Daudu queried.

"There must be a combined reading of Sections 68 (1h), 68 (2) and 69. Section 69 gives power to the recall, while Section (2) gets senate involved. The purpose is to ratify what INEC has done, to ensure the commission complied with the laid down rule. But senate is under serious test now, and must be careful not to be seen to be doing self-protectionism in order to discourage future recall process. Having been given power to ratify, it must be exercised judiciously and justiciably devoid of emotion".

Niyi Akintola (SAN) said " recall is euphemism for impeachment which is a process involving the electorates, INEC, National Assembly and sometimes the court as well. Each must be taken in its context. It is like the impeachment of the state governor, which is not easy, neither is it a tea party. Senate has a role to play, just like INEC and the electorates. Fail in one, fail in all".

Prof Akinseye-George (SAN) said "Senate has no role to play. The decision of INEC is final except where a court of competent jurisdiction faults it".

According to Senator Sola Adeyeye, the issues at stake are as much matters of politics as they are of law. While Ferdinand Orbih (SAN) describes the ongoing face-off as "an ill-wind, which portends grave danger for our democracy and the masses. In every military engagement there is collateral damage.

"The masses and our democracy will suffer collateral damage. It will slow down the machinery of governance. The Senate may want to withhold approval of appointments where it is institutionally incumbent on it to give such. Bills initiated by the executive may be relegated to the cooler. The executive may decide to retaliate by sending its attack dogs such as the EFCC and the ICPC after principal officers of the NASS and some other vocal members and the result of all these may be catastrophic for the polity", Orbih added.

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