15 August 2018
Ever since Senate President Bukola Saraki defected from the ruling All Progressives Congress (APC) to the Peoples Democratic Party (PDP) – from where he had joined the APC in 2014 – new APC Chairman Adams Oshiomhole has fired off threats about impeaching the former Kwara State governor almost everyday.
Oshiomhole, whom Saraki accused of behaving like a “rain-beaten chicken” said that Saraki must resign or be “legally impeached”. There is even a claim from Saraki sources that the siege of the National Assembly by Nigeria’s secret police on 7 August was masterminded by Oshiomhole and was allegedly an attempt to bus in anti-Saraki senators, once the Senate chamber was secured by the security agents, to impeach the senate president. All this was going on while the National Assembly was on recess.
Oshiomhole and the APC have denied all involvement, but he continues to threaten Saraki with impeachment. When Saraki with House of Representatives Speaker Yakubu Dogara cancelled the reconvening of the National Assembly from recess yesterday, it fuelled rumours on social media that the move was to stop his impending impeachment.
But despite the sound and fury from Oshiomhole and his many supporters, impeaching Saraki “legally” is near impossible. This is simply because the APC do not have the numbers required.
The constitution states quite clearly in Section 50(2)(c): “The President or Deputy President of the Senate or the Speaker or Deputy Speaker of the House of Representatives shall vacate his office 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.”
There is clearly no ambiguity here. To remove Saraki requires a resolution that is backed by two thirds of senators. Nigeria’s upper house has 109 members. Two thirds should be 73 senators. At the last count, according to Wikipedia, the APC has 53 senators, the PDP has 50, four belong to other parties, with two seats vacant. In the current climate of defections, the numbers on each side can be subject to mood swings.
However, it is safe to assume that Oshiomhole and his fellow travellers know the law and the numbers are not in their favour, but it hasn’t stopped them from trying to remove Saraki. What we have had since has been an attempt to muddy the waters and create the impression that Saraki could still be impeached without the votes of 73 or more senators.
One attempt was to claim that because the constitution did not state explicitly that the two-thirds majority means “all” members, then it must imply that it meant the members “present” at a sitting. Babafemi Ojudu, a former senator and political adviser to President Muhammadu Buhari, was among the most prominent to attempt to deceive the public, saying in an interview: “Please, I want you to go back to the record, when Saraki was elected the President of the Senate, how many senators were there? Were they 96, were they 70, were they 60? Many of the senators were at the International Conference Centre, ICC, on that day, waiting to meet with the President. And the few who were there quickly elected him (Saraki) and he was sworn-in. What I am saying is that the law says two-third of lawmakers present in a sitting. Now, do you agree with me on the procedure that was used in electing Saraki as Senate President at that time? Those who were sitting that day were not 96.”
The fact that the law says no such thing didn’t seem to bother someone who is the president’s political adviser. It wasn’t just Ojudu. Itse Sagay, a professor of law and Senior Advocate of Nigeria (SAN), and the chairman of the Presidential Advisory Committee Against Corruption, also went down the path of lawlessness claiming in a speech: “Nevertheless, for him [Saraki] to be removed, they need two-thirds, not of the Senate, but of those present and voting at a meeting. It doesn’t have to be everybody. It’s those who happen to be there. Once they meet the quorum of one-third, and he is there, he can be removed by two-thirds of that one-third.”
Sagay must surely know that his position is not backed by law, but it didn’t seem to bother him. Instead, what those peddling this illegality have done is to try to confuse the public with constitutional provisions for ordinary legislative business in terms of forming a quorum. The relevant section on a quorum is 54: “The quorum of the Senate or of the House of Representatives shall be one-third of all the members on of the Legislative House concerned.”
What Sagay, despite his law degrees and legal pedigree, does not tell his listeners is that there is Section 56 that shows that Section 53 can’t possibly apply to the impeachment provisions. Section 56 states: “Except as otherwise provided by this Constitution any question proposed for decision in the Senate or the House of Representatives shall be determined by the required majority or the members present and voting; and the person presiding shall cast a vote whenever necessary to avoid an equality of votes but shall not vote in any other case.
(2) Except as otherwise provided by this Constitution, the required majority for the purpose of determining any question shall be a simple majority.”
This means that the issue of members “present and voting” does not apply when “otherwise stated”. It clearly states “otherwise” in Section 50 that for impeachment purposes what you need is “the votes of not less than two-thirds majority of the members of that House.”
The law didn’t say two-thirds of those present. It didn’t make reference to the section on forming a quorum. It stated quite clearly that the votes should be “not less” than “two-thirds majority of the members”. This clearly means “all” members by any interpretation of the English language. Anyone stating otherwise is either a charlatan or ignorant. Readers should decide where the likes of Oshiomhole, Sagay and Ojudu belong.
It is very likely that they know that they can’t impeach Saraki with the number of senators they have on their side. But the word from the Saraki camp is that they plan to go ahead regardless and hope they can “lean on” the courts for a favourable judgment to support their illegality. No matter what people may think of Saraki, no right-thinking Nigeria should support subverting the constitution in order to remove him as Senate President.