Godwin Tsa, Abuja
As the alleged plot to impeach the Senate President, Bukola Saraki thickens, lawyers who spoke with Daily Sun insisted that he can only be impeached by two-third of all the 109 Senators, and not just a simple two-thirds of those present.
In his legal opinion, a Constitutional lawyer and human right acttivist, Chief Mike Ozekhome (SAN), insisted that only 73 Senators and not 24 can remove the Senate President.
He said any attempt to remove Saraki with a mere 24 Senators, instead of the constitutionally mandatory 73 members, would reduce us to international odium,obloqhy,ridicule and opprobrium.
This he added, “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.
According to Ozekhome, ”much ink has been spilled and much needless rocus generated by the argument that a mere 24 Senators can lawfully remove Saraki as Senate President.Nothing can be further from the truth.Expectedly,this skewed view emanates mostly from pro-government lawyers and commentators,baying for the blood of Saraki,who had defected from the ruling APC to the opposition PDP,inspite of sustained,spirited and overt pressures by the President,presidency and the APC leadership not to do so.This interpretation however stands both reasoning and logic on their heads.It is full of puff and emotion,more of lachrymal effusion,than of solid law or constitutionalism. I shall show this anon.In statutory interpretation,one can not import into a law that which is not so specifically stated.
This is explained by the Latin maxim,”expressio unius est exclusio alterius”(the explicit mention of one thing is the exclusion of another).See the cases of Ogbuniya v Okudo (1976) 6-9 SC 32;AG of the Federation & 2 v Alhaji Atiku Abubakar (2007) NGSC 118(decided April,2007);Osahon v FRN (2003) 16 NWLR (oh 845) 89; Commissioner for Local Government and Chieftaincy Affairs v Onakade (2016) LPELR 41133 (CA, decided on 5th May,2016).Now,sections 143 and 188 of the 1999 Constitution,as altered(“Constitution”),dealing with removal of the President,Vice president,governor and Deputy Governor respectively,specifically deal with those situations only and nothing more.They are totally different from section 50(2)(c) which specifically deals with the removal or impeachment of the President or Deputy President of the Senate,or the Speaker or Deputy Speaker of the House of Representatives.Section 50(2)(c) clearly discounts the word “all”.If it wanted to import “all” as done in sections 143 and 188,it would have said so clearly.
But, it did not. It simply says, “if he is removed from office by a resolution of the Senate or of the HOUSE of Representatives, as the case may be by the votes of not less than two-thirds majority of the members of that House”.
Now, what is “that House”? For the Senate, it is the “House” that comprises of 109 Senators, three from each of the 36 states of the federation and the Federal Capital Territory Abuja(see section 48).For the “House” in the case of the House of Representatives, it comprises of 360 members(see section 49).See also section 47 for the composition of both Houses.
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Surely, section 50(2)(c) also did not talk about “quorum” of any of the “Houses” as stated in section 54(1),which simply deals with the quorum of members before any of the Houses can sit at all.
That is why in the case of sitting, section 54(1) provides for “one-third of ALL the members of the legislative House concerned”.
This “quorum” issue 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 mentioned therein.Section 50(2)(c) did not also talk of “members present and voting”.It simply states,”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.
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 judgement delivered by cerebral Justice Oguntade JCA (as he then was later JSC, and currently the Nigerian High Commissioner to the UK),interpreted “two-thirds” to mean two-thirds of the entire two Houses,ie,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-thirds of the membership of each House of the Senate and the House of Representatives. It cannot mean anything else.
The section has no relationship with the ordinary quorum of each House. It does not employ a language referable to a proportion of the membership of each House.
It is two-thirds of each of the whole of the Senate and House of Representatives.In order to override the president’s veto,there must be at least 73 members in the Senate and at least 240 members in the House of Representatives.
But as I observed earlier, when the Senate made a motion of veto override on the Bill on 25/9/2002,there were only 55 Senators present.
In the House of Representatives on 26/9/2002,when a motion of veto override was made, there 204 members.
Clearly therefore, the appellant was not properly constituted when the Bill was “passed” into law on 25/9/2002 and 26/9/2002…..The lower court was therefore in error to have taken the position that what was needed to pass the Bill was the ordinary working quorum of the appellant and that the “motion of veto override” was in order”.The apex court indeed relied on the well known rule of statutory interpretation termed “generalis specialibus non derogant”,which means that where there are provisions in a special Act and in a general Act on the same subject which are inconsistent,if the special Act gives a complete rule on the subject,the expression of the rule acts as an exception to the subject matter of the rule from the general Act.See AG,Ondo State v AG,Federation (2002) 9 NWLR(part 772) 222;Akindorile v Akindorile (2977) 1 FCAR 148;Panormous Bay v Olam Nig Ltd (2004) 5 NWLR (part 865) 1; Ibori v Ogboru (2004) 15 NWLR (part 895) 154.Thus,Oduyemi,JCA,in his brilliant concurring judgement emphasised,with uncommon lucidity,that,
“The normal rule of interpretation of the Constitution or of any statute for that matter is that general provisions must give way to special provisions-see AG,Abia State v AG,Federation(supra).By virtue of that argument,I am convinced that the special provision of 2/3 majority of each House or of s joint sitting of both Houses take supremacy over the general provisions of the statute with regard to quorum and a simple majority contained in sections 54 and 56 of the Constitution .
In the event,I am of the view that what is required in a proper application of section 58(5) of the Constitution is for the Bill to be supported by at least 73 members of the Senate and be supported by at least 240 members of the House of Representatives at a repeat third reading of the Bill”.
In the same 2003,the Court of Appeal had,in Asogwa v Chukwu (2003) 17 WRN 71,had cause to interprete section 92(2) of the Constitution which deals with the equivalent provisions for the removal or impeachment of the Speaker of a House of Assembly of a says.
The Court of Appeal was emphatic that the 2/3 majority envisaged by section 92(2) of the Constitution is two-thirds majority of ALL THE MEMBERS of the House of Assembly of the state that could remove the Speaker.I respectfully submit therefore,that,mutatis mutandi,and afortiori,section 58(5) which deals with the all important matter of overriding Mr. president’s veto of a bill is a special provision akin to section 50(2)(c) which deals with the sensitive issue of impeachment of the leadership of the NASS.
These therefore override the general provisions of sections 54 and 56 which deal with the simple quorum required for the ordinary legislative business of both Houses on the matters stated therein.This argument is afforded further constitutional imprimatur by section 61 of the Constitution which provides to the effect that “the Senate or the House of Representatives may act notwithstanding any vacancy in its membership,and the presence or participation of any person not en titled to be present at or to participate in the proceedings of the House shall not invalidate those proceedings”.
Were the perverse and ludicrous argument that 24 Senators can legally impeach Saraki to hold sway,it would have meant that even 17 Senators can easily remove the entire leadership of the Houses voted in by all the members of the Houses under section 50(1),even if only 50 Senators were alive,simply because that represents 2/3 of 50 Senators.
Such a situation would not only be absurd,but would tantamount to doing violence to the Constitution itself.In statutory interpretation,it is elementary that the law should be interpreted in such a way as to avoid absurdity or infer meanings different from the clear intention of the legislature.See Bronik Motors v Wema Bank Ltd (1983) LSCLR 296.Remember the conundrum faced by the Supreme Court as to what constituted 2/3 of 19 states in Awolowo v Shagari (1979) LPELR SC 62,decided on 26th September,1979).
Those deceiving the government with warped “legal opinions” on sensitive national matters that could snowball into serious cataclysmic miasma capable of consuming all of us,just to keep their cheap jobs and serve the insatiable bacchannalian appetites of their gods at the ephemeral corridors of power,must remember the immortal words of the Supreme Court in Military Governor of Lagos State v Odumegwu Ojukwu (2001) FWLR (part 50) 1779,1802,coran erudite Obaseki,JSC:
“The Nigerian Constitution is founded on the rule of law,the primary meaning of which is that everything must be done according to law.Nigeria,being one of the countries in the world which professes loudly to follow the rule of law, gives no room for the rule of self-help by force to operate”.
I therefore earnestly caution paid “advisers” of the present government and the government itself,especially the Executive,from using any strong hand,jackboot,gunboat,or vile unconstitutional means to forcefully remove or torpedo the leadership of the Senate with a mere 24 members,instead of the constitutionally mandatory 73 members.
That would reduce us to international odium, obloqhy, ridicule and opprobrium. It 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.Let those who have ears,hear and those who have eyes,see.”
Another human rights activist, Femi Falana (SAN), the Senate President can only be removed by two thirds majority of senators.
He demanded that the planned removal of the Senate President, Dr. Bukola 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 two thirds 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.
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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, Honourable Ume Ezeoke of the NPP, a minority party in the House was not forced to resign. The election of Honourable Aminu Tambuwa as Speaker was made possible by the alliance of pdp and acn legislators. And when he decamped from the pdp to apc Honourable Tambuwa was not asked to step down from the office of the Speaker. Therefore, the apc is estopped from demanding the resignation of Dr. Saraki as Senate President.”
The activists were joined by another lawyer, Jesutaga Onakpasa, who supported his position.
According to the Delta State lawyer, “Indeed, that the Constitution uses the phrase “’the members’” with respect to the removal of the Senate President or his deputy or the Speaker or his deputy, as opposed to the phrase: “’all the members’” that is used elsewhere in the Constitution, does not, in law, mean that a sitting of the Senate or House of Representatives that manages to form a quorum can then go ahead to remove the leadership by two-third majority.”
“Having formed a quorum, such sitting must further be attended by such numbers of members that the number of those voting in favour of removal adds up to two-thirds of the entire membership of either House. “So for the removal of the Senate President or his deputy, for instance, you would at the very least require “73 senators sitting and all 73 of them voting to impeach” “In law, both phrases “all the members’” and “’the members’” mean one and the exact same thing. “Since in ordinary standard English, “’the members’” has the same meaning as “’all the members’” as opposed to “some of the members”, imputing any difference in meaning between the two is entirely superficial and turns more on the professional incompetence and inadequacy in use of English language on the part of the person claiming the existence of such difference in meaning than on any even remote actual difference residing therein. “If the Constitution had intended that the phrase “the members” should mean anything less than the totality of the membership of either House, it would have specifically said so. “As such, in the strict contemplation of law, the difference between “all the members” and “the members” does not exist at all.”
Another senior Advocate of Nigeria who spoke to Daily Sun in confidence, giving his closeness to the presidency stated, ”from all indications and in spite of the seeming ambiguity of the constitution, what is required is the two-thirds of the entirety of the senators. While Enwerem was impeached by 90 senators, 80 members voted out Okadigbo, thus, exceeding even the 73 two-thirds that is constitutionally demanded.
But if the debate was reduced to the two-thirds of members present and voting, what it means is that where 30 senators were present, only 20 could conveniently remove the senate president in a house of 109 members.
This, according to him, would have made nonsense of the intentions of the framers of the constitution, who envisaged that there could be mischief in the attempt to remove a senate president, which only requires a few disgruntled elements to gather at the chambers and announce a leadership change. In fact, if it was that, Saraki would have been long gone.
It is therefore important to establish that,the two-thirds being referred to by the constitution is the two-third of the entire members and not of those present and voting, as is the case in electing the senate leadership.
In other words, Saraki’s continued stay in office is not inconsistent with the provisions of the constitution, even if he were of the minority party. Section 50 (1) (a) of the 1999 constitution as amended states: “A President and Deputy President of the Senate shall be elected by the members of that House from among themselves.”
The constitution did not expressly bar lawmakers from the minority party from aspiring to elective senate leadership positions, for as long as the number favours the individual. In addition, the constitution does not stipulate that a senate president, who becomes a member of the minority party, should give up the position.
What Section 50 (2) of the Constitution states is: “The President or Deputy President of the Senate or the Speaker or Deputy Speaker of the House of Representatives shall vacate his office: a) If he ceases to be a member of the Senate or of the House of Representatives, as the case may be, otherwise than by reason of a dissolution of the Senate or the House of Representatives; or b) When the House of which he was a member first sits after any dissolution of that House; or c) If removed from office by a resolution of the Senate or the House of Representatives, as the case may be, by the votes of not less than two-thirds majority of the members of the House.”
In essence, what this means is that Saraki could keep his position as president of the senate till the National Assembly reconvenes and he’s removed by two-thirds majority of the entire members of the red chamber. Unfortunately, the APC could only attain the two-thirds majority required to impeach Saraki if PDP senators align with them, a situation that is very unlikely in the current power game.