Frontline lawyer and rights activist Jiti Ogunye examines the crisis at the National Assembly. His opinion: the election of Senate President Bukola Saraki and Deputy Senate President Ibe Ekweremadu should not stand.
• Continued from last Wednesday
For example, a judgment that is given without jurisdiction, or a judgment which is a nullity, which is liable to be set aside, cannot give birth to a good execution. It does not even matter that the Judgment sought to be set aside has been executed. In such a situation, both the judgment that is liable to be set aside and the execution that is predicated thereon will suffer the same fate. The oft-cited dictum of Lord Denning in the case of Macfoy v. U.A.C. Ltd (1961) 3 W.L.R. 1405 at p. 1409 P1] comes to mind here. He said: “any purported exercise of any function being without any legal or constitutional authority was null and void and of no effect.
If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding, which is founded on it, is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
Thus, it does not matter that following the purported election of Saraki and Ekweremadu, they were subsequently sworn in and they later administered the oath to the other senators. All that is a grandiose nullity. And also it does not matter that following that farce of an election Senators Saraki and Ekweremade have been receiving courtesy visitors, including the Nigerian Bar Association Leadership ( a big shame!) and some funny civil society elections monitors. This sham of an election is incurably defective, and cannot be cured by this ineffectual showmanship. .
Also, it does no matter that the APC and the APC Presidency have accepted the sham election in the Senate as a successful coup d’état. They said “ a somewhat constitutional process has taken place” and that they are ready to live with it. No sirs. You are wrong. There can be no equivocation on the critical question of whether an act in constitutional or not. If politicians prevaricate, the law does not. It is either a constitutional process has taken place or it has not taken place. An unconstitutional act cannot become “somewhat constitutional” because of the disposition to condone and accommodate such an act, based on political expediency or naïveté .
It is thus our submission that consequently, any Nigerian, be he a senator or not who is affected by that election and is aggrieved has a right under Section 6(6)(b) of the 1999 Constitution, as amended, to invoke the Court’s power of judicial review and the Court is empowered ex debito justitiae to nullify the purported election. Mercifully, before his glorious transition, Chief Gani Fawehinmi, SAN & SAM, of blessed memory had helped in liberalizing the anti-public interest litigation rigidity of the legal principle of locus standi ( standing or capacity to sue).
Secondly, even if the election in the Senate had been conducted on the basis of the Senate Standing Orders, 2011, it still would have been flawed, for not following the due process and for lack of compliance with the provisions of the Senate Standing Orders, 2011.
Order 2 ( Rules 1-3) in Chapter II of the Senate Orders, 2011, provides for the first sitting of the Senate as follows: “on the first sitting of a new Senate, pursuant to the proclamation of the first sitting of the President of the Federal Republic of Nigeria, Senators-Elect shall assemble at the time and place so appointed; ( 2) Senators-elect, having assembled, the Clerk to the National Assembly shall: (a) read the proclamation for the holding of the first session of the Senate; ( b) call the Senate to order, and proceed to the roll call and confirmation of writs of election as well as declaration of assets and liabilities of the Senators- Elect in alphabetical order; and ( c) after the roll call, but before their swearing in, preside over the election of the President and Deputy President of the Senate; ( 3) each Senator Elect called shall present the writ of election and the receipt for declaration of assets and liabilities which shall be laid upon the table by the Clerk.”
The above stated procedure for convocation and inauguration of the Senate was not complied with on the 9th of June, 2015, when the election purportedly took place. All the senators-elect did not assemble before the Clerk and his cohorts committed their grand fraud. It is after the senators-elect ( not 57 or 75 of them, but all of them, save those who may be unavoidably absent, for example in the case of death, illness, detention in police or prison custody, or deliberate, clear and willful abstention from or boycott of the inauguration) had fully assembled that the Clerk can legally proceed to read the proclamation. By reading the proclamation to a half empty Senate Chambers, the Clerk willfully committed an act of illegality. But this is not the only procedural error knowingly committed by the Clerk on that date. Upon reading the proclamation to a Senate Chamber that was half empty, the Clerk persisted in his aberration by not proceeding to the roll call and confirming the writs of election as well as declaration of assets and liabilities of the Senators- Elect ( again, we posit, not 57 or 74 of them, but all of them, save those who may be unavoidably absent, for example in the case of death, illness , detention in police or prison custody, or deliberate, clear and willful abstention from or boycott of the inauguration) in alphabetical order. The Rules say each Senator Elect called shall present the writ of election and the receipt for declaration of assets and liabilities which shall be laid upon the table by the Clerk. Being part of a conspiracy to foist a fait accompli on the absent senators, the Clerk was in a hurry to consummate an infamy.
We submit that having failed or refused to comply with the Senate Rules contained in Order 2 ( Rules 1-3) in Chapter II of the Senate Orders, 2011, the condition precedent to the election of the senate president and deputy senate president was not satisfied , and thus all the steps taken thereafter, including nominations, acceptance of nominations, declaration as being elected unopposed, voting, conducting the president-elect to the chair of the Senate President, administering of oaths, all are a nullity.
To the rabblerousing defenders of the illegality that took place in the Senate Chambers on that day who are contending that a quorum was formed to constitute the leadership of the Senate with 57 Senators, and later 75 Senators being in attendance, we say that you are wrong.
These rabble-rousers bandy, in isolation, Order 10 (1) of the Senate Standing Orders ( Quorum) to justify their contention that there was a quorum to elect the Senate leadership. But Order 10 ( Rules 1, 2 and 3) of the Senate Standing Orders, 2011 provide thus: “(1) The quorum of the Senate shall be one-third ( 1/3) of members of the Senate; ( 2) if, at any time during the daily sessions of the Senate, a question is raised by any senator as to the presence of a quorum, the presiding officer shall within 15 minutes forthwith, direct the Clerk to call the roll and announce the result and these proceedings shall be without debate; ( 3) whenever after such roll call, it shall be ascertained that a quorum is not present, the President of the Senate may direct Sergeant at arms to request and, when necessary, to compel the attendance of the absent senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion except to adjourn or to suspend sitting shall be in order”
Section 54 of the Constitution also provides more forcefully in subsections 1-4 as follows: “(1) the quorum of the Senate or of the House of Representatives shall be one-third of all the members of the Legislative House concerned. “; “(2) the quorum of a joint sitting of both the Senate or of the House of Representatives shall be one-third of all the members of both Houses.”; “(3) If objection is taken by any member of the Senate or the House of Representatives present that there are present in the House of which he is a member (besides the person presiding) fewer than one-third of all the members of that House and that it is not competent for the House to transact business, and after such interval as may be prescribed in the rules of procedure of the House, the person presiding ascertains that the number of members present is still less than one-third of all the members of the House he shall adjourn the House.”; and “ (4) The foregoing provisions of this section shall apply in relation to a joint sitting of both Houses of the National Assembly as they apply in relation to a House of the National Assembly as if references to the Senate or the House of Representatives and a member of either Houses are references to both Houses and to any member of the National Assembly, respectively.”
When the provisions of Order 10 ( 1-3) of the Senate Standing Orders and the above-cited provisions of the Constitution are properly read and construed, it becomes clear that those provisions do not apply to the first sitting of the Senate, and in particular the election of presiding officers of the Senate. They do not. In constituting the leadership of the Senate, all senators-elect not only have the right to contest in the election, but they also have the right to participate in the election. They have the right to vote and be voted for. Therefore, none of them can be excluded, based on the forced application of the “one-third ( 1/3) of members of the Senate” quorum clause. The quorum clause applies to the ordinary sitting ( or daily sessions) of the Senate, its committees or its joint sitting with the House of Representatives. It does not apply to the first sitting of the Senate, which, in the context of the Senate Standing Orders, is not a sitting, properly so called. At the inaugural first “sitting” of the Senate, all senators-elect are expected to assemble and participate in the election. Not one-third of them.
A sitting of the Senate, to which “one-third ( 1/3) of members of the Senate” quorum clause applies can only start or take place after the first “sitting” of the Senate, that is after the election of the Senate’s presiding officers, and not before. The Senate cannot sit without presiding officers. A court cannot sit without a judge or panel of judges presiding. Gathering to elect a leadership of the Senate may be a meeting or an assembly, but certainly not a sitting.
Order 5 of the Senate Standing Orders provides that after their respective elections, “the President and Deputy President of the Senate shall take and subscribe to the oath/ affirmation of allegiance and membership prescribed in the Constitution before the Clerk to the National Assembly”. Order 6 of the Senate Standing Orders provides that “ having been sworn, the President of the Senate returns his acknowledgment to the Senate for the honours confirmed upon him, thereupon takes the Chair, and then the mace ( which hitherto lay under the table shall be laid upon the table).” Order 8 of the Senate Standing Orders provides that “ every senate elect shall, before taking his seat, take and subscribe to the oath/ affirmation of allegiance and membership prescribed in the 7th Schedule to the Constitution of the Federal Republic of Nigeria, before the President of the Senate.” And Order11 ( contained in Chapter III-Sittings of the Senate) of the Senate Standing Orders provides that “(1) the President of the Senate shall allocate a seat to each senator; and ( 2) a senator may only speak from a seat allocated to him, provided that the President of the Senate may change the allocation from time to time”
In the same vein, and foundationally, Section 52. (1) of the Constitution of Nigeria provides that “every member of the Senate or the House of Representatives shall, before taking his seat, declare his assets and liabilities as prescribed in this Constitution and subsequently take and subscribe the Oath of Allegiance and the oath of membership as prescribed in the Seventh Schedule to this Constitution before the President of the Senate or, as the case may be, the Speaker of the House of Representatives, but a member may before taking the oaths take part in the election of a President and a Deputy President of the Senate, as the case may be, or a Speaker and a Deputy Speaker of the House of Representatives.
Section 52(2) of the Constitution provides that “the President and Deputy President of the Senate and the Speaker and the Deputy Speaker of the House of Representative shall declare their assets and liabilities as prescribed in this Constitution and subsequently take and subscribe the Oath of Allegiance and the oath of membership prescribed as aforesaid before the Clerk of the National Assembly.” And Section 53. (1)(a) of the Constitution provides that “ at any sitting of the National Assembly – (a) in the case of the Senate, the President of the Senate shall preside, and in his absence the Deputy President shall preside;”
Reading these orders and cited provisions of Sections 52 and 53 of the Constitution together, in relation to the “one-third ( 1/3) of members of the Senate” quorum clause, it should be very clear, even to the dull and unintelligent, that until the President and Deputy Senate President are sworn, take the Chair, the Mace of the Senate is laid on the table, every senator-elect is sworn and takes his seat, and the President of the Senate allocates a seat to each Senator, there can be no sitting or session of the Senate to which the “one-third ( 1/3) of members of the Senate” quorum clause can apply.
At any sitting of the Senate, the President or Deputy Senate President must preside. A gathering of senators, where the President and Deputy President are yet to be elected, let alone presiding, is, thus, not a sitting for the purpose of applicability of the quorum clause. Without a sitting, no sensible person can be talking about a quorum. Clearly, senators-elect, including aspirant presiding officers (who are yet to be elected) cannot sit until all the afore-stated protocols are completed. Quorum applies to a sitting of the Senate, and not to an assembly of senators who are gathered for the sole purpose of constituting a leadership that will preside over the Senate, so that sitting may commence. The Senate cannot sit before the election of presiding officers. And it is when the Senate does sit that the “one-third ( 1/3) of members of the Senate” quorum clause can apply.
Order 17 (1) of the Senate Standing Orders, 2011 provides that “no person shall be admitted to the lobby or the floor of the Senate while in session, except the following and only by consent of the Senate.” The Order then provides a long list of current and former public office holders, who, with permission of the Senate, are eligible to be admitted into the Chambers. These include the president and vice president, former elected presidents and vice presidents, former president and former deputy presidents of the senate, former senators and senators-elect, judges of the Supreme Court, Governors of State and former elected Governors, et cetera. As every observer of the charade called an election in the Senate witnessed, the Senate Chambers was invaded by PDP cheerleaders, including PDP Governors, who stormed the Senate to “ supervise the election”. This fact gives credence to our submission that no sitting or session of the Senate took place on that day to which “one-third ( 1/3) of members of the Senate” quorum clause could apply. If the Senate was in session, its permission would have been sought and obtained before the admittance of those intruders. There was no “session” or “sitting” of the Senate on that day, and there was no leadership to give any consent to the invaders or strangers to come into the Chambers and participate in the sham process as observers. Even if we were to assume that the Clerk of the National Assembly allowed the invasion, the Clerk of the National Assembly is not the Senate. Thus, he, lawfully, could not have given any consent to the intruders to come in. If he did so, he acted unlawfully.
Our third ground for reaching the conclusion that the election of Senator Bukola Saraki and Senator Ekweremadu as senate president and deputy senate president is a nullity is that the “election” was not in conformity with the spirit and letters of the Constitution. It did not pass the test of an inclusive and participatory democratic process under the Constitution. 57 senators or 75 senators cannot validly elect the leadership of the National Assembly, even if the Senate Rules were not doctored, save in the exceptional situations suggested above. . Section 50. (1) of the Constitution provides that: “there shall be:- (a) a President and a Deputy President of the Senate, who shall be elected by the members of that House from among themselves”. Under Section 50, there is no provision stipulating “one-third ( 1/3) of members of the Senate” as the quorum for the first “sitting” of the Senate where the Senate leadership is elected. Thus, the one-third quorum cannot and should not be imported into Section 50. In electing the leadership of the Senate, the intendment of the framers of the Constitution is that all the senators, who are to be inaugurated and sworn in at that first “sitting” will assemble and be eligible to vote and be voted for. It affronts common sense for anyone to imagine that one-third members of the Senate can validly elect its leadership, under Section 50 of the Constitution, when the same Section 50 provides in subsection 2(c) thereof that : “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.”. If it takes two-third majority of the members of the Senate to remove a senate president and his deputy once they are elected, why will one-third of the members be able to form an alleged quorum to elect the same officers?
Under our formulated third ground, may we point out that it is not only because 51 senators and later 33 senators were disenfranchised and thus could not participate in the said “election” that we are contending that the election is a nullity, but also because almost half of the people of Nigeria were shut out of that process. The National Assembly is the first arm or branch of government, and the Nigerian people participate in its affairs through their elected representatives. In a representative democracy, legislators perform the functions of representation, legislation, appropriation, passing resolutions, oversight, and governance. Being representatives, when the senators are electing their leadership, they are direct electors representing indirect electors in their respective senatorial districts. They are like an electoral college. Therefore, if a fragment of the Senate engages in a conspiracy and chicanery to elect the senate leadership, in the absence of other senators, the right of Nigerians, who are being represented by those shut out senators, to participate in the government of their country is violated. The right of a people to participate in the government of their own country is an internationally recognized civil and political right.
Let us put it more graphically. In that so called election, save the threesome Governor Fayose’s Senators from Ekiti State, an Ogun State Senator and two Ondo State Senators, the peoples of South-West Nigeria did not participate in constituting the senate leadership. Two-third of the people of Benue State did not participate, Senators George Akume and Barnabas Gemade not being there. And largely the people of Kaduna, Kano and Katsina States did not participate, their elected senators not being in the Senate. This is not the kind of senate leadership election that is envisaged by the Constitution. Constitutional processes governing compositions of arms of government must not be reduced to a game of power-grabbing stratagem in which chicaners use foul means to win , and gleefully declare thereafter: “ I have defeated you, let us move on”
We refuse to move on. A terrible unconstitutional precedent wittingly or unwittingly must not be created because the actors prefer to cut a deal and settle their differences . A fundamental breach of the provisions of the Constitution cannot be allowed to pass because the dramatis personae have agreed to share offices. Did the President and the Vice President and the dissatisfied senators not swear to protect, defend and uphold the provisions of the Constitution?. They sure did. And now this is the litmus test.
The Senate should return to the path of constitutionalism and rule of law. The first “sitting” of the Senate has not taken place. All that has taken place is a cocktail of illegalities. All the senators must properly assemble, pursuant to the relevant constitutional provisions and Senate Standing Orders 2011; and the proclamation must be read to all of them. Thereafter, a proper roll call must be made and an election of which all senators and the entire Nigerian people shall be proud must be conducted. This is the way to change and govern a country.
- Mr. Ogunye, lawyer, public interest attorney, legal commentator, author, and essayist, is the Legal adviser of Premium Times.
