13 August 2018

Nigeria: Saraki's Impeachment - to Be or Not to Be?

Photo: Premium Times
Bukola Saraki

In this report, Ahuraka Yusuf Isah writes that the much speculated impeachment of the Senate President, Bukola Saraki and his deputy, Ike Ekweremadu is still not feasible in view of legal procedure and political undercurrent

The two chambers of the National Assembly have voluntarily agreed to reconvene on Tuesday August 14, 2018 to consider President Muhammadu Buhari's budget estimate of N242 billion for the Independent National Electoral Commission (INEC) to conduct next year's general elections.

Exactly 7 days before then, precisely on August 7, the Department of States Security (DSS) operatives condoned off the National Assembly ostensibly to forestall breakdown of law and order, or to avoid clashes of Senators of the All Progressive Congress (APC) and Peoples Democratic Party (PDP) at the senate premises.

The PDP senators who gained entry into the complex later said they were there to prevent the APC senators from reconvening to unlawfully impeach Senate President, Bukola Saraki.

While addressing the world press conference on August 8 on Tuesday's siege of the National Assembly by the DSS, Saraki said, "the day two-thirds of our members no longer have confidence in us, we will leave this place.

But in response to Saraki's press conference, APC National Chairman, Comrade Adams Oshiomhole called on Saraki to immediately resign honorably or be impeached according to law and democratic norms, saying he ought to emulate Godswill Akpabio who resigned before defecting from the PDP to the APC.

"In any case, Saraki is not going to be the first senate president to be impeached and I doubt if he is going to be the last but definitely he will be impeached according to law and to democratic norms. The only way Saraki can avoid impeachment is for him to do what is honourable which again leads to the issue of character", Oshiomhole stated.

This brings us to the provisions of the 1999 Constitution (as amended) with regards to the impeachment of the Senate President and his deputy, and Speaker of the House of Representatives and his deputy.

Both lawyers and non-lawyers have attempted to interpret what the two-thirds majority of the House is deemed to mean. While some lawyers hold the view that the removal of any of the above mentioned officers required 2/3rd majority of the all the members of each house, others are of the view that what is required is 2/3rd of the members present at a sitting provided they form a quorum. The two contradictory views are still predicated on the provision of the Section 50 (2) (C) of the 1999 Constitution.

Laws And Supreme Court Decisions

Section (2) (c) states that "The President or Deputy President of the Senate or the Speaker or Deputy Speaker of the House of Representatives shall vacate his office - 'if he is removed from office by a resolution of the senate or of the House, of Reps, as the case may be, by the votes of not less the two-thirds majority of the members of that House".

According to Sunusi Musa, a legal practitioner base in Abuja, the contention of both sides is with respect to the meaning of the phrase '... not less than two-thirds majority of the members of that House... ' In other words, what does the framers of the constitution mean by "two-third majority of the members of that House"? Does it mean for instance to remove the President of the Senate, it requires a resolution passed by at least 73 Senators which is 2/3 of the 109 Senators? Or it means 25 Senators which the 2/3 of the 37 Senators that the Senate require to perform its legislative duties as provided under Section 54 (1) of the 1999 Constitution.

In interpreting the provision of the constitution, the courts have over the years insist that words should be given their natural meaning, unless doing so will lead to absurd situation. It is also not allowed in interpreting a legislation to import words which are expressly or impliedly excluded in couching the provision of particular statute. The Supreme Court, in AG of Abia State V. the AG of the Federation & Ors (2005) LPELR-3151(SC) held;

It is also good law that as a general rule of construction of statutes that a court is not entitled to read into a statute, words which are excluded expressly, or impliedly from it. See Attorney-General, Ondo State v. Attorney-General, Ekiti State (2001) 17 NWLR (Pt. 743) 706 at 767, (2001) FWLR 1431, where at pp. 1472

Musa said the true intent of the framers of our constitution can be determined by adhering to the above decision of the Supreme Court while interpreting the provision of Section 50 (2) (c) of the 1999 Constitution.

"It is my humble opinion that for us to unravel the meaning of the phrase not less than two-thirds majority of the members of that House... ' used in subsection (2) (c) of the Section 50 of the 1999 Constitution, the constitution must be looked at holistically. In other words, the provision shall not be read in isolation of other provisions of the constitution. It is important to consider other provisions of the Constitution in order to determine the meaning and effect of the words being interpreted.

"In this regard, the provisions of sections 54, 143, and 188 are of relevance vis-à-vis interpretation of section 50 (2) (c) of the 1999 Constitution. This is because the sections contain provisions that deal with required number of legislators needed at a different times with respect to particular legislative business.

"Section 54 of the constitution deals with the quorum required to conduct legislative business by each house of the National Assembly. Sub section (1) of the section provides;

"54. (1) The quorum of the Senate or of the House of Representatives shall be one third of all the members of the Legislative House concerned.

"Section 143 makes provision with respect to the removal of President or Vice President from office and of particular relevance here are subsections (1), (2), (4) and (9) thereof which provides;

"143. (1) The President or Vice-President may be removed from office in accordance with the provisions of this section.

"(2) Whenever a notice of any allegation in writing signed by not less than one-third of the members of the National Assembly-

"(4) A motion of the National Assembly that the allegation be investigated shall not be declared as having been passed, unless it is supported by the votes of not less than two-thirds majority of all the members of each House of the National Assembly.

"(9) Where the report of the Panel is that the allegation against the holder of the office has been proved, then within fourteen days of the receipt of the report at the House the National Assembly shall consider the report, and if by a resolution of each House of the National Assembly supported by not less than two-thirds majority of all its members, the report of the Panel is adopted, then the holder of the office shall stand removed from office as from the date of the adoption of the report.

"Section 188 of the 1999 Constitution deals with the removal of the Governor or his deputy form office and subsections (2), (4) and (9) of the section have, (apart from substituting the word 'President' with 'Governor') similar wordings with those of Section 143 (2), (4) and (9).

"I have taken the pain to quote the above provisions in order to make it as easy for non-lawyers to understand my argument. The provisions above, like section 50 (2) of the same constitution make provision with respect to the number of legislators required at a particular time for particular legislative business. Sections 54 (1), 143 (4) & (9) and 188 (4) & (9) have a common denominator that qualifies the number of legislators required for a particular business of to be carried out. The denominator is the phrase 'all the members'.

"On the other hand, reading section 50 (2) (c), 143 (2) and 188 (2) one will observe the absence of the phrase 'all the members' in qualifying the number of legislators required for the legislative business being dealt with by the said provisions", Musa stated.

This is just as he said further that from the provisions of the above sections of the 1999 Constitution, one can easily deduct that by the combined provision of Section 50 (2) (c) and section 54 (1) & (4) of the 1999 Constitution, what is required for any motion intended to remove President of the Senate or his deputy is two-third of the members present at any sitting of the Senate provided there are up to 37 senators when such motion is tabled.

"It amount to standing logic on its head to posit that a Constitution that empowers 37 Senators to exercise the legislative powers of the National Assembly provided by sections 58 and 59, will turn around and make the less important duty of dispensing with who is leading the Senators to perform the legislative duty more daunting. It cannot be the intendment of the framers of the same constitution to make it possible for 19 senators to make a President of the Senate to turn around to require 73 senators to unmake him. If 19 can make a President of the Senate, it is only logical to posit that 24 can unmake the same President of the Senate.

"If the intendment of the framers of the Constitution is to require 73 Senators to remove President of the senate, certainly the word 'all' could have been inserted in between the words 'of' and 'the' in phrase '... not less than two-thirds majority of the members of that House... ' of section 50 (2) (c) of the 1999 Constitution", Musa maintained.

What To Expect On Tuesday

Asked to explain the configuration of senators and their parties in the Senate, Deputy Minority Whip, Senator Biodun Olujimi said, "There are two in ADC, two in APGA, two are dead and one is incarcerated (jailed Senator Joshua Dariye). That is seven. Take that from the total 109, you will get 102. Each of the PDP and the APC has 51 members."

Speaking on the call for Saraki's resignation on moral grounds, Olujimi said, "What is morality in 51-51. He is sitting atop same number as theirs. It is a different case if they have 70 or at least 65, then their majority will be clear.

Senate Leader, Ahmed Lawan said the senate APC caucus is 53 in number followed by the other minority parties. "The PDP is the largest minority party with 48 senators and then the ADC with 2 senators and we have 2 vacant seats which were occupied by APC senators who are late now.

"We will reclaim the 2 vacant seats during the bye-election fixed for August 11. By the Grace of God, APC will retain those seats and that will take our majority to 55", Senator Lawan said.

When the senate reconvene on Tuesday August 14, it is not likely that the APC will muster the two-thirds majority of those sitting in the plenary to remove Saraki in case any APC senator decide to move impeachment motion that day.

According to a senator who do not want to be mentioned, there would shouting bout, trading of insults and all that. Even the PDP senators shall quickly pass a vote of confidence on Saraki. Several APC senators who would not want to lose their juicy senate committee chairmanships would either keep mum or quietly throw their supports behind Saraki.

"Unfortunately for the APC, over 95% of senate press corps members are heavily lenient or supporting the PDP and Saraki's cause, and that's because many APC senators and the APC government don't care about them. How many of them can maintain their cars, talkless of buying new ones, hence we would continue to be portrayed more in bad light.

"Just as Julius Caesar have uttered the phrase "alea iacta est"--the die is cast and crossed the Rubicon River with his army, Saraki crossed with 14 senators to the PDP to fortify his capacity and shield himself from possible lawful impeachment.

"He appears to be holding tight to the senators he mobilized to defect to the PDP, just as he is maintaining a grip on the older PDP senators", the senator said.

The senator who belong to APC further evaluated the situation with lamentation, saying it is as if no one can reason amongst us. "Except miracle happens, we have lost it all with the APC leadership in the senate.

"For the APC to secure 2/3rd majority of senators sitting on Tuesday, the ruling party requires to secure about 18 senators of PDP extraction at present which may amount to a tall dream. As long as all the senators are allowed to enter the senate chamber, it won't be possible for the ruling party to secure the 2/3rd majority. It could only have been possible if the APC senators have succeeded in reconvening the senate in the absence of the PDP senators last Tuesday.

"Two-thirds majority of its number would have been enough to impeach Saraki based on the legal analysis made above. For now, and as long as the APC and the PDP hold onto their positions in the senate, the Saraki impeachment drive of the APC leadership shall remain a mirage", the senator concluded.

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