• Say Senate President, Deputy can only be removed by 73 majority ‘Yes’ votes
Ismail Omipidan, Godwin Tsa (Abuja); Chukwudi Nweje (Lagos)
Lawyers, including senior advocates, yesterday, weighed in on the raging controversy over the exact number of senators required to remove Senate President, Bukola Saraki and his deputy, Ike Ekweremadu.
Some lawyers including top politicians in the last one week have been canvassing that to remove Saraki and Ekweremadu, all that was required was just two-third of senators at any particularly sitting.
But while Chief Mike Ozekhome SAN, Femi Falana SAN, and former Benue Attorney-General and Commissioner for justice, Alex Adum, think otherwise, Emeka Ngige, SAN, believed that those canvassing the first position are correct.
According to Ozekhome, only 73 senators and not 24 can remove the senate president, saying that any attempt to remove Saraki with a mere 24 senators, instead of the constitutionally mandatory 73 members, would reduce the country and its people “to international odium, obloquy, ridicule and opprobrium (and) will show us more as a nation given to might rather than right, crass impunity, rule of the thumb, rather than rule of law and executive lawlessness.”
He further said that in the case of sitting, section 54(1) provides for “one-third of ALL the members of the legislative House concerned.” This quorum issue, he added, cannot therefore be imported into the clear and unambiguous provisions of section 50(2)(c), which specifically deals with the business of impeaching those officers of the two Houses.
He said section 50(2)(c) did not also talk of “members present and voting. It simply states that ‘not less than two-thirds majority of the members of that House. Two-thirds of the 109 members Senate is 73, while two-thirds of the 360 members House of Representatives is 240.”
He added that “in any event, because proceedings for impeachment of any of these principal officers of the bicameral legislature is a very sensitive legal and constitutional matter, courts in Nigeria, including the apex court, have severally interpreted what is meant by the phrase ‘two-thirds majority vote’ of a House. In the causa celebre of The National Assembly v The President, FRN (2003) 41 WRN 94, the Court of Appeal in a lead judgment delivered by cerebral Justice Oguntade, JCA (as he then was; later JSC, and currently the Nigerian High Commissioner to the UK), interpreted ‘two-third’ to mean two-third of the entire two Houses, i.e, Senate and House of Representatives. The court held that to override the president’s veto of a bill, each House must garner 73 (Senate) and 240 (House of Representatives) members votes respectively, as representing two-thirds. Said the court: “Its ordinary meaning, two-thirds majority of each House can only mean two-third of the membership of each House of the Senate and the House of Representatives. It cannot mean anything else.”
Falana agreed that the senate president can only be removed by two thirds majority of senators, saying the alleged planned removal of Saraki by the APC should be stopped as it cannot stand.
“The attention of APC legislators ought to be drawn to section 52 of the Constitution which provides that the president and deputy senate president can only be removed by the resolution supported by the votes of not less than two-third majority of the entirety of the members of the Senate. Since the APC legislators cannot muster the required two-thirds majority of the votes of the entire members the plan to impeach Senator Saraki should be dropped forthwith.
“Again, the scenario playing out in the Senate is without precedent in our political history. When the accord of the National Party of Nigeria and Nigeria Peoples Party collapsed in the Second Republic, the Speaker of the House of Representatives, Ume Ezeoke of the NPP, a minority party in the House was not forced to resign. The election of Aminu Tambuwal as Speaker was made possible by the alliance of PDP and ACN legislators. And when he defected from the PDP to APC, Tambuwal was not asked to step down from the office of the Speaker. Therefore, the APC is estopped from demanding the resignation of Saraki as Senate President.”
However, Ngige argued that the constitution did not use the word all members as was used in the case of the president or the governors when they were to be removed.
“Also, the constitution did not use the word impeachment for the senate president or the Speaker of the House of Representatives or any of the presiding officers of the state House of Assembly. It used the word remove. Remove is of lesser burden than impeach. The process of removal of a principal officer of a parliament is less stringent than the impeachment of the president or a governor or their deputy.
“It is also not by simple majority, it is by two-thirds of the members of that House. Once the House is properly convened by the properly elected presiding officer, if they can muster two-thirds of those present, they can impeach. But I am not canvassing that somebody else should go and proclaim himself pro term senate president or pro term speaker and then purport to impeach the senate president or speaker who was not there. It must be the de facto and de jure presiding officer that will convene the plenary in which the proposal to remove him will be taken.
“It is only if the principal is indisposed that the deputy can preside over the plenary. Mind you, it is not the Senate President or Speaker that will convene the house. They will pass the instruction to the Clerk of the House to issue the necessary notice. So, if somebody who is not the presiding officer issues a notice to the Clerk of the House, the Clerk can ignore such notice,” Ngige said.
But Adum, ex-Benue Justice Commissioner disagrees with Ngige, saying that the provision is clear and unambiguous.
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“Those who are saying two-third of those in session is what is required to remove the senate president are imputing into the constitution language that was never intended, language that was never used. For the senate to sit and to vote on any particular matter, you require one-third. But with respect to removing a presiding officer, you will be tampering with political stability that is why the issue of impeachment, like amending the constitution is not treated like any normal business of the House. Also, there are certain amendments in the constitution, like fundamental human rights, that require four-fifth to pass, whereas, others are just two-third.
“All I am saying is that if those saying the two-third of members at any particular sitting is what is required to remove the presiding officers, are correct, the constitution would have expressly said ‘sitting’. The language is clear, two-third of the entire members is what is required,” Adum declared.