Bukola Saraki,

•Is It by 2/3 of Members Present and Voting, or 2/3 of the Entirety of Members?

Olawale Olaleye

The serial attempts to remove the President of the Senate, Dr. Bukola Saraki (PDP/Kwara) from office has continued to raise constitutional, legal and political questions, especially after the botched attempt last Tuesday seeking to sack the National Assembly complex in order to ferry in his opponents Gestapo style and effect an unconstitutional change. Saraki’s All Progressives Congress (APC) opponents cite the manner of his emergence on June 9, 2015 to justify their plot, which was to use the state security apparatus, in this case, the Department of State Services ( DSS), to stop the entry of Saraki’s supporters in the Peoples Democratic Party (PDP), ferry in some 30 APC opponents meeting at the behest of their new no-nonsense chairman, Adams Oshiomhole, somewhere in Aso Drive, Asokoro, Abuja; create a quorum of 30 members required under the Rules for meetings, and then vote out the Senate President and his Deputy, Ike Ekweremadu (PDP,Enugu). But they disagreed on replacements. Some wanted the party’s zoning formula maintained, with a new Senate President emerging from the North-central zone between, George Akume (APC, Benue) or Abdullahi Adamu (APC, Nassarawa) while others wanted the South-east, with Hope Uzodinma ( APC, Imo) or the South-south, with the newly defected Goodwill Akpabio (APC, Akwa Ibom) as Senate President.

How Saraki Emerged:

On June 9, 2015, Saraki was elected Senate President about 10:30am by 57 of the 108 members, as 51 of them were waiting for an APC political caucus meeting about two kilometres away, at the International Conference Centre (ICC), waiting for President Muhammadu Buhari to resolve which of them, between Saraki and Ahmed Lawan (APC, Yobe) should be Senate President. But they forgot the President had already sent in a letter proclaiming the Senate at 10 am on the faithful June 9. While his colleagues sat at the ICC, Saraki and 56 others were being sworn-in as Senators. Following the swearing-in, the next item on the order paper was elections, and without much ado the election was called and Saraki (then of APC) emerged unopposed and was elected by 57 of the 57 newly sworn-in Senators which at that time was 100 per cent of the Senate. The other 51 Senators who were still Senators-elect at the time scrambled back to the chambers once they heard the elections were underway. But Saraki had won. Ekweremadu was later to defeat Mohammed Ali Ndume (APC, Borno) for the Senate Deputy Presidency when he polled 54 to Ndume’s 20. As Senate President, it was Saraki who swore-in the rest of the absent Senators. So legal experts say the quorum that elected Saraki was 100 per cent of the newly sworn-in members, “present, sitting and voting”… and the 51 members holed up at the ICC were not yet Senators at the time but Senators-elect, so could not be counted.

Today, the issues are slightly different. At the heart of the matter is whether removing a Senate President requires two-thirds of members present and voting at a sitting, or two-thirds of the total number of senators of the upper chamber, which discomfortingly puts the number at a near-impossible 73.

To elect the President of the Senate, the constitution clearly demands a simple majority of members. But that is not the case with his removal. For instance, to impeach the president, the constitution clearly demands the consent of two-thirds of “the entire members”. In the case of the removal of the President of the Senate, the constitution says two-thirds of members.

That is where legal experts begin to differ. What does two-thirds of members mean in this context? Is it two-thirds of those present and voting or of the entire membership? By extension, the question to ask here is: can a simple quorum take such a decision as removal of principal officers on behalf of all members? It is this ambiguity
which keeps PDP members and Saraki’s supporters awake all night, that APC seeks to exploit – if by hook or crook.

The Tuesday Drama

Contrary to whatever narrative out there in the attempt to manage the fallout of Tuesday’s siege to the National Assembly, the truth is that the operation was devoted solely to the removal of Saraki as senate president and his deputy, Ike Ekweremadu. It is also correct that the APC party apparatchik were with former Director-General of the Department of State Services (DSS), Lawal Daura, in the plot to get Saraki out of the way.

It is important to state that the leadership of the APC had planned to take about 30 of their “loyal senators” to the National Assembly to remove Saraki. This followed a meeting overnight, just like the plot that was deployed in the failed impeachment of Benue State Governor Samuel Ortom.

The plan was to seal the National Assembly with the aid of the DSS operatives, take in their own senators – 30 of them – who would be present and voting on the impeachment saga. But the Senate President’s group got wind of the development and stayed back, in Abuja refusing to travel out on recess. In the Saraki group, however, were 48 senators, more than those allegedly meeting with the APC and Daura.

To give fillip to the planned impeachment and contrary to some reports, THISDAY confirmed that Daura, who operated in cahoots with the APC apparatchik, had prevented the Clerk of the National Assembly, Mr. Sani Omolori, from proceeding on leave, which had long been planned, allegedly, saying “a new Senate President would have to be sworn in on Tuesday” and Omolori’s presence was constitutionally key to such an exercise.

The Clerk, THISDAY learnt, had planned to go on leave (which had been approved) since two Fridays ago but he received “an order” to put it on hold, because of the planned removal and the expectation that a new Senate President would emerge on Tuesday, to be sworn in immediately. But it turned out a failed plot.

The Enwerem, Okadigbo, Wabara Examples

From 1999 till date, only two Presidents of the Senate – Chief Evans Enwerem and Dr. Chuba Okadigbo – had been successfully removed and both of them were removed from office on the grounds of corruption. The third person, whose position was also threatened, was Senator Adolphus Wabara. He, however, beat his colleagues to the impeachment move by resigning.

The late Enwerem was impeached for alleged perjury and age falsification. He was President of the Senate from June 3, 1999 to November 18, 1999. Having been accused of falsifying his age and academic qualifications, he was subsequently asked to step down. But Enwerem refused, and 90 of 99 senators (in a 109-member Senate) voted to impeach him. Two opposed the motion and the rest were either absent or abstained from voting.

Okadigbo, who is also late, took over from Enwerem and was President of the Senate between 1999 and 2000. The senate voted to impeach him following demands for his resignation over allegations of corruption. Okadigbo, who spent just about 263 days in office, was impeached by 81 to 11 votes, following his refusal to resign as demanded by the Senate.

However, in the case of Wabara, his colleagues had in May 2004 moved to investigate him over alleged financial misdeeds, accusing him of exceeding his authority by handing out various contracts without the knowledge or approval of the Senate committee responsible for such. Wabara denied the allegation and claimed that it was a plot by Igbo senators, who wanted his position.
But in April 2005, Wabara resigned from his position after allegations were made that he and others took a $400,000 bribe from then Minister of Education, Fabian Osuji.

Now, the Saraki Debate

Following the issues above and the examples, the natural question to ask is: what is the threshold for removal of the senate president? Is it the two-thirds of members present or two-thirds of the entire members?
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.

That, according to legal scholars, 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, and given the informed views of some lawyers, who have enhanced the quality of this debate, 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.

Minority Leadership Not a New Development

While this debate continues, it is worthy of mention that Saraki is not the first leader of the National Assembly to come from a minority party even as there is no party with an absolute Majority of 55 Senators, Between APC and PDP they have some 52 to 53 senators each with APGA and ADC having the rest. However, in the Second Republic, for example, then Speaker of the House of Representatives, Edwin Ume-Ezeoke, was of the Nigeria Peoples Party (NPP), which wasn’t the ruling party at the time. President Shehu Shagari’s National Party of Nigeria (NPN) was the ruling party. But to get elected NPP was in alliance with NPN which later broke down but because of the 2/3 rule the Speaker could not be removed.

Recall also that in the 7th assembly, former Speaker of the House of Representatives and now Governor of Sokoto State, Aminu Tambuwal, remained in office even after defecting from the then ruling Peoples Democratic Party (PDP) to the APC, a move the APC was favourably disposed to.

And currently, in this 8th assembly, the Deputy Senate President, Senator Ike Ekweremadu, is of the PDP, when ordinarily the office is deemed to belong to the APC by practice. What this means is that the running of the affairs of the National Assembly is purely the business of its members as guided by their rules and the Constitution. Conventions not supported by the Constitution are not valid in the current debate.