Law  

Does president or faction of senate have power to reconvene upper legislative chamber on vacation?

Mike Ozekhome

There has, of recent, been some focus and hoopla about whether or not the president, or some 30 All Progressive Congress (APC) senators can forcefully reconvene an already adjourned Senate for the purpose of considering the N228b supplementary budget required by Independent National Electoral Commission (INEC) for the 2019 election, or even for the purpose of impeaching the Senate President, Dr Bukola Saraki.

The interesting times we are in as I predicted in my June 28, 2015 write up at the back page of Sunday Telegraph, are that the ruling APC controls the Executive, whilst the opposition PDP controls the legislature, at least at the Senate level. My humble take on this is that it would tantamount to a grave constitutional anathema and legal harakiri for the president or any faction of the Senate to forcefully or unilaterally reconvene an already adjourned Senate, which is on its annual recess, before the expiration of the vacation period.

It is only the Senate President, or in his absence, the Deputy Senate President, that can reconvene a properly adjourned session when the Senate is on its annual recess. The only time the president can be constitutionally and legally involved in matters concerning Senate or House of Representatives sitting is as provided for in sections 64(3) and 105(3) of the 1999 Constitution, as altered. This allows the president to make a proclamation for the National Assembly to be inaugurated at the beginning of a legislative session.

President Muhammadu Buhari did this on the 9th of June 2015, when he duly inaugurated the 8th NASS, at which session Saraki and his Deputy, Ike Ekweremadu, were duly elected as Senate President and Deputy Senate President respectively. After this compulsory constitutional duty, the president ceases to have any claim over sittings of the bicameral legislature.

What some politically motivated analysts fail to understand is that consideration of budgets for the purpose of appropriation of funds under sections 80 to 83 and 162 of the 1999 Constitution can only be done jointly by the Senate and House of Representatives. None of the two chambers, red and green, can unilaterally pass budget or supplementary budget. What goes around comes around! It must be noted by all that the sudden deft adjournment by the Senate on Tuesday rather than the initial envisaged Thursday, was a pre-emptive step by the Senate to prevent the carefully choreographed impeachment moves of the Senate leadership spearheaded by the Executive arm of government, which had successfully and manipulatively used the Police, EFCC and DSS to blockade the official residences of Saraki and Ekweremadu, for the sole purpose of illegally impeaching them.

Such impunity and abuse of state institutions for the achievement of political objectives is doing much damage to our democratic ethos and moral nuances. The presidency thereby unwittingly cut its nose to spite its face. Those who bring maggot-infested pieces of firewood to their homes should not complain about invasion of lizards.

All hope is not lost as there are still two options and window of opportunity open to Mr. president where he genuinely believes that passage of the budget is of extreme national urgency and that there are no other available funds for immediate virement to take care of INEC before resumption of the NASS. He can write a passionate letter to the NASS leadership through their various Clerks requesting the two Houses to reconvene to consider the urgent issue of supplementary budget. The second option is to involve the 3rd arm of government, the judiciary, to use its judicial powers under section 6 of the Constitution to make a mandatory order of mandamus compelling the NASS to reconvene.

It is to avoid this needless cul de sac that I have consistently warned the Executive to refrain from using raw brinkmanship and “strongmanliness”, rather than diplomatic rapprochement in engaging the legislature and the judiciary. They are also equal partners and stakeholders in the tripartite government. The leadership of the NASS must however be put on notice in any court matter, to defend itself. Beyond these two options, the president does not have any powers, whether substantive, or inherent, legal or constitutional, to reconvene a Senate already on recess.

Section 60 of the Constitution provides that “the Senate or the House of Representatives shall have power to regulate its own procedure”. It is under this section that both Houses have made their own parliamentary rules and procedures. Any errant member of the Houses who does anything untoward may be disciplined in accordance with sections 20, 21 and 22 of the Legislative Houses (Powers And Privileges) Act, LFN, 2004. So, any member who illegally usurps the powers of the leadership of bicameral legislature to convene an illegal meeting of the Senate has run foul of the rules and is subject to discipline, using internal deodorizing mechanism.
Must Dr Bukola Saraki resign as senate president because he defected from APC to PDP?
In law, there is no legal or constitutional basis for Dr Bukola Saraki to resign or be removed as president of the Senate and Chairman of the NASS simply because he has decamped or defected from APC to PDP.

The first point to make here is that section 68(1) of the 1999 Constitution provides inter alia, that any member of the 109 Senators and 360 members of the House of Representatives who loses his Nigerian citizenship, or is made a minister, or decamps from his political party to another party AUTOMATICALLY loses his seat. However, section 68(1)(g) of the same 1999 Constitution permits a legislator to decamp or cross carpet from his original party under whose platform he contested and won election, to a new party if he can show that there has occurred a division or factionalization of his original party, or that his party has merged with another party, or a faction of another party.

It is a question of fact, not of law, if there exists a division in a party. In the case of APC, 24 states held parallel congresses before the national convention. Can there be any better or stronger evidence of a division in a party? I think not! To add to the gravity of this internal implosion and vertical and horizontal schism, a new wing, r-APC emerged from the APC at the national level. It is headed by no less a person than Buba Galadima, a tested political strategist, Buhari’s right hand man and former Secretary of Buhari’s CPC.

Although APC leadership had dismissed the breakaway factional members that have fecund Kassim Afegbua as their spokesman, the wind was removed from their sail when they commenced frantic fire brigade appeasement missions to the respective homes of these aggrieved members. They did these ‘nichodemously’ at wee hours of the night, even when they had claimed they would not lose sleep. They lost plenty sleep.

The Pandora box has since been broken as three governors, Senate president, 15 Senators, over 40 House of Representatives members, Local government chairmen, Councillors, Commissioners, etc, have defected in droves to the PDP, and some few ones to ADC and SDP. And still counting…So, all the legislators, including Dr Bukola Saraki, are constitutionally covered and immuned from removal from office, because their APC party is eventually irredeemably broken into smithereens and totally factionalized.

Must Saraki and Yakubu Dogara (I can bet he will soon defect) lose their leadership positions as Senate and Speaker of the House of Representatives respectively by this defection? The answer is a categorical no. There is nowhere in the extant 1999 Constitution where it is provided that the ruling party must provide these principal heads of the bicameral legislature. Indeed, APC was lucky in June 2015, when Saraki, then in APC, was narrowly elected Senate President and Ike Ekweremadu of PDP as his deputy. It could have been the other way round as has happened many times in the USA, and heavens would not have fallen.

Section 47 of the Constitution provides that the Senate shall consist of 109 members and the House of Representatives 360 members. By virtue of section 50(1)(A) of the Constitution, the president of the Senate and the Deputy President of the Senate shall be elected by members of the Senate. By section 50(1)(b), the Speaker and Deputy Speaker of the House of Representatives shall be elected by members of the House. There is nowhere it is stated that such officers must come from any political party, whether ruling, or opposition.

The only circumstance in which the Senate President and the Speaker of the House of Representatives can lose his seat is provided for in section 50(2) of the same Constitution. It states, inter alia, that the president of the Senate, the Deputy President of the Senate, the Speaker of the House of Representatives and the Deputy Speaker of the House of Representatives shall vacate their offices through a resolution passed by 2/3rd majority votes of members.

Consequently, for Saraki (and later, Dogara), to be removed, each of the houses needs 2/3rd majority votes. In the case of the Senate, that is a humongous 73 senators, and whopping 240 members of the House of Representatives to remove Dogara. That is an impossible task under the present circumstances even if this corrupt government that feigns anti corruption war promises all the oil blocks and automatic tickets to the legislators. This is because its antecedents of self-denial on everything it ever promised during campaigns makes it very untrustworthy to be believed on anything.

In law, we call it similar facts. The last time I checked, APC and PDP stand shoulder to shoulder on membership, with each laying claim to numerical superiority. So, where will it achieve this talismanic constitutional superiority of 2/3 majority votes to sack Saraki and Dogara? It will not happen! Read my lips. The deft Machiavellian and superior sagacious political acrobatics of Saraki and r-APC movement have left APC breathless and confused. They must go to the drawing board, a tabula rasa, if it hopes to snatch the burning kernel from the blazing inferno. The next weeks and months will be very interesting. My Kobo take.

Ozekhome, SAN, OFR is a Lagos based constitutional lawyer and human rights activist.

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APCINECMike OzekhomeNASSPDP
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