Recently, Mr. Femi Falana, SAN published an opinion concerning the ongoing political crisis at the Senate Chambers of the National Assembly. Aside from some well-deserved rebukes which the Senior Advocate of Nigeria handed out as an equal opportunity offender to the two main aisle straddling Nigeria’s legislative highground, his statement were mostly legal, intended to help clarify some normative questions Nigerians have been impaled, unfairly, to make their burden in the last few days – another slew of unfair burdens dished from a political corps that seems to delight in delivering constitutional conundrums rather than good governance.
Some of those legal questions can be reduced majorly to this two for the purposes of this rejoinder:
1. Does the Senate Membership need two-third majority of the 109-members Senate to impeach any Senate President;
2. Has Saraki already self-impeached?
They are questions this discourse proposes to engage in four segments: Candle-light from the Supreme Court; the Sense in Vacate-if-You-Decamp; Interpretation Tenets Nigeria Needs; and Answering the Question of the Day.
I. CANDLE-LIGHT FROM THE SUPREME COURT
The Supreme Court of Nigeria, which Falana rightly invoked, has been very clear and consistent in the view that when it comes to the interpretation of the Constitution, any adventurist agitated enough to set on its construction must respect some basic tenets.
One: that the Constitution must be construed liberally and holistically. Two: that the Constitution must be interpreted, when it bothers on politically charged matters, in such a way as to enhance, in contradistinction to frustrating or impeaching, the proper development of Nigeria as a developing country with multifaceted socio-economic dynamics.
Accordng to the Law-Saint, Udo Udoma, JSC, in Nafiu Rabiu v. The State (1980) 8-11 SC. 130 at pages 148-149. observed:-
“the function of the Constitution is to establish a framework and principles of government, broad and general in terms intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution.
My Lords, it is my view that the approach of this court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat. I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”
Chief Justice Fatai-Willaims in concurrence and amplification said in Senator Abraham Adesanya V. President of Nigeria and Another, 3PLR/1981/2 (SC), (1981) 5 S.C. 69:
“I only need to add that 1 am also strongly of the view that when interpreting the provisions of our [Constitution] not only should the Courts look at the Constitution as a whole, they should also construe its provisions in such a way as to justify the hopes and aspirations of those who have made the strenuous effort to provide us with –
“a Constitution for the purpose of promoting the good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice, and for the purpose of consolidating the Unity of our people.”
So, ours is not a Constitution for purely positivist construct – even if for too long, the Bench, Bar and the Advocacy Circuit (especially the ‘human right’ segment) have been dominated principally by those who espouse just that: a narrow engagement of the Constitution to address ANY event regardless of its precedent-setting outcome, or worse, their potential to generate or exacerbate demonstrably unconscionable outcomes . Well intentioned as Mr. Falana may be, the objectivity of the activist when principally conceived to rebuke an incumbent political leadership, especially one that has underwhelmed both supporters and foes, is not a good substitute for the posterity-sensitive standards demanded by the Supreme Court. In other words, an interpretation is not correct simply because it seems equitable in the context of two wrong doers still set on doing greater damage to their nation through their crass and self-serving deployments. It is vital that one rises over the irritation and frustrations daily purveyed by today’s political gladiators and their ‘supporters’ in interpreting the Constitution even if in the exercise an outcome emerges that could embolden the side with the heavier gun. Activists’ passion-led preferences and justice under the Constitution do not always coincide – .even if we all wished they did.
Thus it is important to emphasize that it is not only legislators that have their rights to association and expression circumscribed or interfered with – for good or for bad. We all do – for the sake of the nation’s proper development and stability. Section 39 and Section 40 of the Nigerian Constitution in protecting the Nigerian Peoples’ right to freedom of expression and association rightly prescribed ascertainable limits on their expressions for the promotion of what amounts to expressed objectives of the Constitution, like security/welfare of other citizens and national integration. On the negative gradient, laws prohibiting pornography, graphically violent artistic expressions, acts constituting torts or personal injuries, discriminatory expressions in official communications or actions and associations constituting criminal conspiracies or membership of terrorists/proscribed organizations are all geared towards achieving expressed constitutional imperatives through criminal law regimes so as to elevate healthy inter-personal, family and community mores in Nigeria. On the positive side, the Constitution also mandates that the State proactively insinuates itself by way of regulations and incentives into the socio-economic expressions and associations of its citizens so as to socio-economic mobilizations that conduce to the emergence of a secure and prosperous nation. In the words of S.15 (4) of the Constitution:
“The State shall foster a feeling of belonging and of involvement among the various people of the Federation, to the end that loyalty to the nation shall override sectional loyalties. “
II. THE SENSE IN VACATE-IF-YOU-DECAMP
There may be a good reason why the framers extended the requirement to vacate one’s seat on the abandonment of the political party upon which one was elected to the legislature but not to the executive arm of government.
There are only two elected members in the executive arm of the federal government whose tenure are subject to the power of removal wielded by the Nature Assembly. In contrast, there are 109 Senators and 360 members of the House of Representatives all of whom are elected and whose tenure are only subject to impeachment by way of recall directly or recall indirectly by way of seat falling into vacancy for playing truant. So, the intangible social good – representativeness – is an essential feature of the legislature – outranking even their roles as law makers. As strange as it may sound, to enthrone a robust but balanced federation in Nigeria, it is vital that representativeness re-emerge as the cardinal deliverable that defines a legislator. Thus, we are exactly at the place where it may indeed be possible for one to be a great representative of his/her constituency without making a single law: by just ensuring that the tangible benefits of existing laws and public policy exertions become demonstrably operational in regard to that given constituency.
It needs reiterating that the reason why some countries, including Nigeria, maintain two otherwise very expensive legislative chambers is simply because of the peremptory principle of representativeness. They are deemed necessary so as to emphasize and yet keep separate (and not conflated) the two recognized subjects of a federal republic: its recognised federating units (States/Federal Capital) and its individual Citizens. The two chambers thus exist to symbolize and functionally represent both subjects in the law making and implementation platforms of the Federal government. While the Senate has three members from each State to reflect the equality of States regardless of size or population, the House of Representatives has individual members who represent roughly equal constituencies (population-wise) across the 37 federating units (States/FCT) to represent the equality of citizens. Together both chambers are supposed to advance in their law making and oversight functions, key themes of the Constitution which advance the wellbeing of Nigeria as a federation of thirty seven federating units and about two hundred millions individual citizens. Two sides of a coin does not properly define the relationships: two sides of a scale does. It is a scale upholding two phenomena which priorities may not always coincide and are often be in competition with each other and so requires focused and circumspect minders immersed in the peremptory principle of representatives as to work together to keep the scale upright or when it tilts, to err on the side of the People. After all, it is 360 Citizens representatives against 109 federating unit representatives (that ultimately still represent the people in aggregates)..
Such a delicate task requires the embrace of intangible pillars around which the legislative minders can take their cue from as to what constitutes common objectives and principles of state policies –common to both government entities and citizens. So, reminding every Senator at the risk of ‘deletion’ that they represent platforms and human constituencies very much beyond themselves individually or as caucus or as a House is one good reason why the rule exist. When representativeness is at risk of being vacated through political silliness, the Constitution prescribes that such Senator(s) be vacated as a bad leopard who has changed his people given spots.
This is also important to note. Legislators make laws. The role of legislators role in a non-parliamentary democracy is not to determine the course of presidential elections through political collusions orchestrated to meddling with the outcome of the any upcoming general election. They are not the mythical Russians that the Democrats of the USA are currently deploying to great effect to delegitimize President Donald trump, themselves and their nation. Every election outcome is a prerogative which should at times be left to the people the legislators represent. In their true function of law making, a legislator’s greatest tool is winsomeness in consensus building. For indeed, while one person can draft a law, making a law requires consensus, happy or begrudged, of both friends and enemies. Consensus in legislative business is a difficult undertaking that requires grunt workers committed to short, medium and long term strategies best serviced by a predilection for accommodations, barters and trade-offs. Very few laws in a federation truly delivers uniform satisfaction across the whole socio-economic spectrum or disparate demographics of the nation. A legislator’s role in that set-up is therefore key so as to ensure that every represented constituency of Nigeria would at least rest assured that laws which confers no direct benefit on them do not as a minimum exact unfair levies or constitute discriminatory burdens for them.
That’s another reason why the political character of any person that can be presented for election as a representative of a constituency to the National Assembly is very important. A legislator, unlike an elected member of the executive, is like an arrow shot at a target four years away. A little change in air direction can make all the difference between a hit or a miss. It is exactly against the objectives of the Constitution for any Constituency of Nigeria to have the integrity quotient of its mandated representation usurped by a legislator who midway through his tenure runs amok in the service of his personal political chi while riding on the back of his constituency and in the pay of the nation.
III. THE INTERPRETATION TENETS NIGERIA NEEDS
In interpreting the Constitution – as to distil its provisions into ethical parables or native rules of conduct – it is important more of us begin to recognise the idea of hierarchy in the provisions of the Constitution – an established conception robustly developed by many eminent jurists like Ronald Myles Dworkin and H.L.A Hart.
Under that conception, the Constitution is rightly appreciated as made up of at least three entities – principles, rules and doctrines – each with their distinguishing features. For instance, inconsistency and opposition aren’t a problem in the pot of stew of principles. In fact, just as action and reactions are needed to be equal and opposite to maintain equilibrium in physics, so it is for principles normative dynamics. Thus, Nigeria’s Constitution should be acknowledged as inhering within itself otherwise inconsistent and opposite principles which apply or become muted at different times or even concurrently to bring about the rightful balance in lady Justice’s scales. Most of the hues and cry against the Nigerian Constitution as it is flows from a poor appreciation of that conception. It is a vicious cycle: the more we refuse to wrap our head against the tear-drawing onion skin of this Constitution, the more we cry ad nauseam ad infinitum for new constitutional documents even before the ink has dried on the latest one. Beside principles are doctrines like separation of powers, federalism, republicanism, checks and balances, etc which also can sometimes snooze, apply partially and sometimes dominate – in singles or teams or groups. Doctrines are dangerous double-edged scalpels in the hands of skilled legal jurists, the sort of which are becoming extinct at an alarming rate at the appellate levels of Nigeria’s judiciary since the turn of this millennium. A nation needs the right wielding of normative doctrines to harness the unruly vibrations of very complex forces which need to harmonize to achieve the normative equilibrium every federation needs to survive and thrive: and without which it rots.
Rules being on the lowest rung among the threesome represent constitutional norms which depend mostly on ‘consistency’ for their validity. In other words, they always need to be right, or in the right. One has to follow and reaffirm each other or one of them would be invalid. To cover up this self-gorging handicap, rules free-ride to on the engine of Principles and Chassis of doctrines to achieve any usefulness in the context of the multiverse of human normative arrangements that a nation is. To interpret them as stand-alones is to deliberately orchestrate a chaotic and unjust system: the very definition of the National Assembly right now as a microcosm of Nigeria.
It is therefore submitted, that the only way to properly understand what is happening at the National Assembly is to look beyond the actors jostling for attention and instead, revert back to the signposts of great jurists of the Nigerian Constitution in order to discern the Principles that are stake right now. Nigeria is currently faced with the prospect of making the Senate about its individual members rather than the People and State constituencies they represent. Nigerians are faced with having to choose whether to esteem more the principle requiring that Senators face consequences for trifling with the integrity of the representative functions they owe their constituencies or trade it in for low level rules regulating how Senators relate with each other in the symbolic chambers of the National Assembly.
IV. ANSWERING THE QUESTION OF THE DAY
And they are two:
A. DOES THE MEMBERSHIP OF THE SENATE, NEED TWO-THIRD OF 109 SENATORS TO IMPEACH A DECAMPING PRESIDENT OF THE SENATE?
The 1999 Constitution of Nigeria allows for the recognition of at least seven types of elected persons connected with the Senate of the Federal Republic under Chapter 5.
1. SENATOR ELECT
The first is a Senator-elect, a status that is vested on a person once the Independent Electoral Commission of Nigeria, INEC endorses a certificate of return against his/her name in connection with a recognised constituency pursuant to an INEC supervised election.
2. SITTING SENATOR
The second is a Senator of the Federal Republic being a person who has taken the requisite oath of office prescribed under S.52 of the Constitution and outlined in the Seventh Schedule to the Constitution.
The third is a Senator-with-a-seat-in-risk –of-being-declared-vacant, one whose continuing status as a Senator requires affirmation by the Senate President for decamping from the party under which platform he was originally elected. This category must necessarily pass through a quasi-judicial process of some sort under S. 68(2) to have his/her status reaffirmed or declared vacant.
4. SERIALLY-DEFECTING SENATOR
The fourth is a serial defector who had already defected in the past from the party under whose sponsorship he/she was elected and is merely switching back to that party or into a third party. This category has no constitutional liability of any sort whatsoever. The liability only affects a first time defector abandoning the party under which his constituency voted for him/her.
5. SENATOR WITH CONSTITUTIONALLY RECOGNISED SECONDARY ROLE AS PRESIDING OFFICER
The fifth category is the Presiding officers which for the Senate are the Senate President and Deputy Senate President. Those are the only two constitutionally recognised roles. Under Section 50(a), what is required to designate ANY sitting Senator the President of the Senate is very simple: a vacancy and a majority of votes by members at any meeting of the Senate. The Constitution did not prescribe any special session or special quorum or special majority for such election. In other words, a Senate President could be elected at any session of the Senate where the quorum for same under S.54 of the Constitution – one-third of all the members or 36, to the nearest whole number – is present. There is no requirement for a special inauguration in any form or the administration of any additional oath all of which lends credence to the submission that the intention of the framers was to highlight and enthrone the higher principle that Nigeria operates two legislative houses of peers/equals who elect from among themselves their presiding offices to provide coordination to their daily business.
6. PRESIDING OFFICERS OF THE SENATE: SENATE PRESIDENT/DEPUTY SENATE PRESIDENT
This is a Senate President in good standing. Nigeria’s Constitution allows for any Senator in good standing to be elected and serve as President of the Senate regardless of membership of party – minority or majority. Specifically for the Senate President, the grounds upon which s/he can be removed as a presiding officer are also clear under Section 50(2)(a)(b)(c).
Section 50 (2): The President [of the Senate shall vacate his office] –
(a) if he ceases to be a member of the [Senate], otherwise than by reason of the 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 tenure; or
(c) if he is removed from office by a resolution of the [Senate] by the votes of not less than two thirds majority of the members of that House.
In other words, by the impeachment of his office as a Senator (through status sabotaging conducts prescribed under sections 68(1) and 69 of the Constitution); or upon the expiration of current tenure as a Senator (even if re-elected for another tenure as such); or by impeachment by fellow Senators in his role as presiding officer (a loss that does not, without more, affect his role as a Senator.)
Sections 50 (2)(a)(c), 68(1)(a)-(h) and 69 of the Nigerian Constitution furnishes the framework through which any question as whether any putative Senate President(or any other constitutionally recognized presiding officer of the Senate) has lost his seat or not – could be determined.
The first category is impeachment by vote of one: that is, impeachment by virtue of conduct or events connected directly with the person of the Senate President viz: s.68 (1) (a), (d), (e) – where a Senator voluntary trades in his job as a Senator for another appointment in the same government; Section 68 (1)(b ) – circumstances coming to light which impeaches his election as a Senator on grounds of non-qualification ; Section (1) (c) – loss of Nigerian citizenship by presidential deprivation (for naturalized citizens under Section 30 of the Constitution) or by voluntary renunciation of same (for citizens by birth or by registration pursuant to section 29 of the Constitution: section 68(1) (f) – for Senators who are shown to have been absent from meetings of the House for a period amounting in the aggregate to more than one-third of the total number of days during which the House meets in any one year.
The second category under s.68(1)(h) of the Constitution and s. 69 covers the secondary impeachment of the Presiding Officer through impeachment of his primary status as a Senator by the constituents he represents at the National Assembly. This necessarily requires the satisfaction of the “Recall” process involving a petition, a referendum and the delivery of a Certificate of Recall certified under the hand of the Chairman of the Independent National Electoral Commission, INEC and delivered to the Office of the President of the Senate! The consequence of falling into any of this first two category of impeachment is fatal and final. Such a presiding officer completely loses legal standing as to membership and privileges of the chamber – as a Senator of the Republic along with the office of a presiding officer. Emphasis: secondary positions, like Senate President/Deputy President become automatically lost once the primary ones are pulled.
The third category (impeachment by virtue of change in original political affiliation under s.68 (1)(g) and s.68(2) of the Constitution) and fourth one (impeachment by peers for any reason whatsoever provided it passes a resolution of the [Senate] by the votes of not less than two thirds majority of the members of that House) are discussed in the final segment being the crux of this discourse.
B. HAS SARAKI SELF-IMPEACHED HIMSELF ALREADY?
The conditions as expressed under Section 68(1) (g) and Section 68 (2) of the 1999 Constitution inhere within them both evidentiary and administrative functions.
68(1) A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if –
(g) being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected.
Provided that his membership of the latter party is not a result of a division in the political party of which he was previously a member or a merger of two or more political parties or factions by one of which he was previously sponsored;
68.(2) [The President of the Senate] shall give effect to the provisions of subsection (1) of this section, so however [that the President of the Senate or a member] shall first present evidence satisfactory to the [Senate that the provision of S.68(1)(g)] has become applicable in respect of that member.
The provision prescribes the existence of a rebuttable presumption and the exercise of a quasi-judicial function. The presumption is automatic and attracts the consequences except there exist the proper exercise of the quasi-judicial function by a competent authority.
THE REBUTTABLE PRESUMPTION
The general rule in S. 68(1)(g) is that once any Senator announces that s/he has dumped the political party under which banner his/her constituency elected the Senator to the Senate, that fact alone should elicit a presumption, without more, that the Senator has consequentially vacated his membership of the Senate. Therefore, per established rules of evidence, the onus is on the person who would be prejudiced by that state of affairs to furnish evidence to rebut that presumption. Critically, a satisfactory evidence as already decided by the Supreme Court is one that establishes that there was indeed a factionalisation in the decamping Senator’s erstwhile political party to the degree asserted by the Supreme Court. The Constitution also allows the Senate President directly (or as lawyers would say, suo motu) and other members of the Senate to contradict the evidence of the decamping Senator. The final decision is that of the Senate President subject to the right to approach the courts under Section 6(6)(b) of the Constitution.
THE ADMINISTRATIVE OR QUASI-JUDICIAL FUNCTION
Once a Senator presents a motion or communication in the Senate for recognition as a member of another party other than the one on which platform he was originally elected as Senator, the Senate President becomes constitutionally inaugurated, specifically, into a one-man quasi judicial panel: a role which under the established principle of delegatus non potest delegare can only be performed by the Senate President as the competent authority in respect of the Senate. Instructively, it is clear that such a process is not required in the case of a Senator who having already decamped once subsequently seeks to decamp again – either back to the original party or to a third party. The test is: is the Senator decamping for the first time from the political party under whose banner INEC granted him/her a Certificate of return as Senator-elect for a legally designated constituency?
In that administrative or quasi judicial role, the Senate President, as again established by the Supreme Court through many cases, is required to act judicially and judiciously by observing the constitutional principles of fair hearing and natural justice. However, that function of the Senate President becomes, it is submitted, irredeemably hobbled to the point of absurdity where the decamping Senator is the Senate President as he would need to break every applicable principle required in order to pronounce on his case. Principles that would go to the sword include: delegatus non potest delegare and fair hearing: principles that cannot afford to go to the sword, both arguable, one certainly.
So when a Senate President decamps to another party for the first time, post-election, without first resigning his office, the rebuttable presumption kicks in automatically -and consequences attaches. The first consequence is the legal exit of a competent authority to decide the vacant-office-upon-defection question for every ‘decampee’ Senator including a putative Senate President. It is trite that you can’t build something on nothing and expect it to stand.
Thus the purposive interpretation of the Constitution which would not produce that absurdity is the one that would automatically deem as vacant the Office of the Senate President on his decamping from the party which originally sponsored his election as Senator. In other words, where a wielder of the office of the Senate President fails to factually resign his position as such before decamping, he would be deemed to have constructively resigned so as to allow the emergence of a new Senate President who would determine the primary issue in relation to his seat as a Senator first and foremost. Base attempts to import rules of interpretation from other sources, including the Interpretation Act, it is submitted, would end up doing incalculable harm to the higher objectives stipulated by the Constitution and the dicta of the Supreme Court on its proper construction.
The combined reading of Subsection 50(2)(a) and section 68(1)and(2) therefore provokes the following questions: by decamping, how has Saraki’s privileges, primarily, as a Senator been affected if any. Has his purported self-declaration or announcement satisfied the envisaged process as to a valid declaration known to law so as to settle the question whether his seat is vacant or not upon defection to another party? His purported continuance in the post of the Senate President, instead of frontally allowing someone else properly set up as Senate President, to determine the question as to the status of his own seat one way or another, has it put him in greater legal jeopardy by foreclosing the existence of a proper competent authority who can make that call? And worse, is he inadvertently creating an extra-legal window not envisaged by the Constitution under which a frustrated, desperate or mischievous Senator can advance to assert a rival claim to the leadership of the Senate thereby undermining the provisions of S. 1(3) of the Constitution viz:
The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the Provisions of this Constitution.
For many who believe that Mr. Saraki is acting within his legalistic (if not moral or ethical) rights, it surely is worth pondering if the framers of the Constitution contemplated the absurd event where a Senator can, by refusing to resign from his constitutionally established administrative role (devised to uphold the twin constitutional principles of fair hearing and delegatus non potest delegare) frustrate the determination of a substantive question relating to the representation of a whole constituency of Nigerian citizens. Weighed on a balance and using the proper canons for the construction of the Constitution, it is submitted that by falling into the status of a ‘decamped Senator’, Senator Saraki’s legal standing as a rank-and-file Senator from where he gained the foundation to become a presiding officer has either been self-impeached or rendered so impeachable that it is at best of an inchoate status and consequently put in abeyance pending when there is a substantive Senate President to pronounce on it as a competent authority.
Subsection 50(2)(c), which requires two-third majority of the Senate to remove a Senate President, it is submitted, applies only to a Senate President in good standing as such as it would not matter if s/he was originally elected from a minority party but got elected by majority from a coalition of parties – or if s/he was originally in a majority party whose members subsequently decamped away to other parties leaving him/her in a minority party. Once a presiding officer decamps without first resigning his position as such, a holistic reading of the Constitution strongly suggests that he is put in such an impeached column, status wise, that there is no base to support the retention of the privilege of being the Senate President.
Clearly, this avoidable conundrum evidences yet again that the Nigerian Constitution implicitly requires that anyone who aspires to the office of the Senate President be a person of unimpeachable personal integrity, fidelity to the Constitution and loyalty to the nation even at personal cost. In other words, a statesman. While it may be a ridiculous concept among knaves in both high and low places, including the National Assembly today and even among the corps of lawyers who advise them, it is not in the realm of nation building. Nigeria is a nation and only statesman who can fall on their own sword for the sake of those they represent are worthy of its privileges. The alternative is extra-constitutional crisis.
And that’s the right place to end this piece. Is someone, perhaps, pitching to gain some strange political mileage by orchestrating an unnecessary impasse so that the gungho leaders of President Buhari’s political operation would crassly take the bait and engender a free for all in the Senate Chambers? Is this a promotional for another another orgy of extra-constitutional exertions which orgasm depends on the mindless trampling of the will, honour, ethos, and mores that should define this nation’s leadership underbelly if the Constitution and its Supreme Court jurists of the extinct generation has anything to say about it?