FROM ALOYSIUS ATTAH, ONITSHA
Mr Joseph Onuoha, a constitutional lawyer hails from Enugu-Ezike in Igbo-Eze North L.G.A., Enugu State. The 1989 Law Graduate of University of Nigeria is the founder of Enugu State Indigenes Forum Anambra State Chapter and an expert in Constitutional Law.
In this interview, he speaks on Constitutional issues on the Crisis rocking the National Assembly on the election of Senator Ike Ekweremadu as Deputy Senate President on June, 9 2015 among other national issues
From your own legal view, what are the causes of the crisis in the National Assembly?
The crisis arose out of deliberate refusal to recognize the fact that we operate a constitutional democracy in Nigeria. There are separate and independent functions assigned to the three organs of government by the 1999 Constitution of Federal Republic of Nigeria (as amended). Section 4 of the Constitution confers the legislative powers of the Federation on the National Assembly. The National Assembly comprises the Senate and the House of Representatives. The National Assembly and the Houses of Assembly of the States are known as the Legislature. The legislative arm of government is not subject to the ruling political party and cannot be bound by the dictates of the political parties.
In a presidential cum constitutional democracy, like ours, the doctrine of the separation of powers between the legislative arm and that of the executive is sacrosanct and the concept of constitutionalism demands that both “the rulers and the ruled” are subject to the provisions of the Constitution and the ruling party (APC) is expected to operate within the ambit of the Constitution.
This is because constitutionalism insists that the conduct of politics must be in accordance with the Constitution. The APC government does not want to know whether the National Assembly election was done in accordance with the provisions of the 1999 Constitution or not. It is not for the APC to recognize the election but what is important is whether the Constitution of Nigeria recognizes the election. Our Constitution by Section 1 (3) is supreme over any law, decisions, actions or directives of any political party. Any actions or directives of the executive arm of government that run contrary to the provisions of the Constitution, is null and void. Our Constitution established a limited government and in modern political science, a Constitution is an authoritative text possessing legal force that prescribes the structure and principles of limited government.
Was the election conducted by the National Assembly on June 9, 2015 in accordance with the Constitution?
Section 50 of the 1999 Constitution provides for the election of the Senate President and the election of Deputy Senate President. The section provides that the Senate President and a Deputy President of the Senate shall be elected by the members of that House from among themselves. It did not provide that the APC or the President of Nigeria shall play any role in the election or determine who becomes the Senate President or a Deputy President. On the day of the election, all the 49 PDP Senators were present in the Red Chambers. In all, there were a total of 76 Senators that took part in the election which by Section 54 (1) of the Constitution requires a quorum of 1/3 of all the members of the legislative house for the conduct of all the legislative business. The Senate has 109 members and 33 Senators constitute the required quorum as provided by Section 54 of the Constitution. It is my submission that the election of the Senate President and a Deputy Senate President by 76 Senators satisfied the constitutional provisions and cannot be faulted in law.
Can Senator Dr. Ike Ekweremadu be removed by the APC led Federal Government?
The legislature is independent of the Executive and no pressure from the executive can remove Dr. Ike Ekweremadu, except as provided by the Constitution. PDP has 49 Senators and APC has 59 Senators. Section 50 (2) (c) provides that the Senate President or the Deputy Senate President cannot be removed from office unless by the votes of not less than 2/3 majority of the members of the Senate. The APC government cannot raise 2/3 majority votes of the Senators in the Senate to remove the Senate President or the Deputy Senate President. The 2/3 votes of the Senators would be 66 votes while APC has 59 Senators. PDP’s 49 Senators cannot vote for the removal of Senator Ike Ekweremadu in the spirit of the PDP family. Furthermore, the APC Senators that are loyal to Senator Bukola Saraki cannot vote for the removal of Senator Ike Ekweremadu as Deputy Senate President no matter the pressure from the APC.
President Buhari reportedly said that he would not work with his enemies; can the President remove Senator Ike Ekweremadu?
It is only the Senate that can remove Senator Ike Ekweremadu as Deputy Senate President and President Buhari cannot remove Senator Ike Ekweremadu. Even the presidential proclamation cannot remove Ike Ekweremadu as Deputy Senate President because it will amount to executive interference in legislative affairs. The former President, Chief Olusegun Obasanjo who purported to have declared the seat of the then Vice-President, Atiku Abubakar vacant when the Vice-President cross-carpeted to another political party, did not see the light of the day. The Vice-President challenged his removal in office in the case of A-G FEDERATION V ABUBAKAR (2007)10 NWLR (PT 1041)1. The Supreme Court held that unlike the Ministers, the Vice President cannot be removed by the President and went on to hold that purported removal was unconstitutional, null and void. The 1999 Constitution created no veil for any form of arbitrariness or dictatorship and the court must guard against such impunity in any guise in order to uphold and protect the spirit of the Constitution. Even the Senate President cannot under our Constitution remove the Deputy Senate President in order to please his party as a leader of a legislative house has no constitutional right to remove any member of a legislative house except as provided for in the Constitution. In M.O. OLOYO VS B.A. ALEGBE the Speaker, BENDEL STATE HOUSE OF ASSEMBLY (1981)1 NCLR 117, the court nullified the purported declaration of the seat of a member of House vacant by the Speaker as it is only a court of law that can determine whether or not the seat of a member of a house had become vacant.
What is your take on the effect of the allegation of forgery on the office of the Deputy Senate President?
It is the law that mere allegations without proof beyond reasonable doubt cannot stop the Deputy Senate President from holding his office. Our constitution provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty by a court of competent jurisdiction presided over by an impartial arbiter. The Deputy Senate President has not even been charged to court and the allegation on the purported forgery of the Senate Rules is still being investigated by the police.
In ROTIMI AMECHI VS INEC (2008)5 NWLR (PT 1080)227, the Supreme Court held that the indictment of a Governorship candidate in order to witch-hunt and victimize him cannot stand unless and until he is prosecuted in a court of law and found guilty. The allegation of the purported forgery of the Senate Rules against the Deputy Senate President cannot stand until he is prosecuted in a court of law and proved guilty. The election of the Deputy Senate President stands until he is removed by the 2/3 of all the Senators and my opinion is that the Federal Government should not dissipate its energy in pursuit of an unconstitutional impossibility.
Are you aware that some Senators have gone to court to challenge the election of June 9?
I do not have the facts, but such move is commendable and in accordance with the provisions of Section 6 (6) (b) of the Constitution that encourages any aggrieved citizens to go to court to ventilate his grievances. The plaintiffs in the said suit must establish that their rights to be elected the Senate President or/and Deputy Senate President are well and above other Senators’ rights, that they have locus standi to challenge the election and that the suit which is an internal legislative matter is justiciable. In INAKOJU VS ADELEKE (2007)4 NWLR (PT 1027)423, the Supreme Court held that once the legislature complied with the constitutional requirement on any legislative issue, a court of law cannot adjudicate in any matter arising from the legislative function, because such dispute are non-justiciable.
What are your views on the appointments of Service Chiefs and the proposed appointments of Ministers?
The President took oath of office and oath of allegiance to uphold and defend the constitution of the Federal Republic of Nigeria. The appointment of Service Chiefs without any Service Chief from the South-East is a violation of the Federal Character Principle and Section 14 (3) of the 1999 Constitution that requires all the appointments to reflect the Federal character principle. The National Assembly should not approve the list of Service Chiefs until the President complies with the Federal Character principles and the Constitution. The President who is the custodian of Constitution of Federal Republic of Nigeria is expected to uphold and protect provisions of the Constitution at all material times. The National Assembly should refuse and reject any list of nominees that do not reflect the Federal character principle. The list should be sent back to the President to include a Service Chief from the South-East before approval.
Section 157 of the Constitution requires the appointment of at least one Minister from each state. The National Assembly does not make laws alone but should act as checks on the executive and ensure that the provisions of the laws of Nigeria and the Constitution are complied with by the executive in all appointive positions that require their approval. The oversight and supervisory roles of the National Assembly are aimed at sustaining and deepening democratic principles and ensuring the delivery of democratic dividends to all and sundry across the Federation.
The National Chairman of the APC submitted lists of principal officers of the National Assembly to the Senate President, what is your reaction to that development?
The APC chairman acted beyond his constitutional powers and such development is an attempt to take over the powers of the National Assembly by a political party which the Constitution did not provide for.
Sections 221 to 229 of the 1999 Constitution provided for political parties and the Sections did not empower APC to determine or submit list of principal officers of the National Assembly. APC cannot make a demand outside its constitutional rights.
The 1999 Constitution overrides the APC Constitution and the APC should act within the Constitution of Nigeria for peace to reign in Nigeria. APC under the constitution cannot determine who becomes the Deputy Senate President because that is the function of the Senate and the decision of the Senate cannot be reversed by the APC.
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