Only 73 Senators, Not 24, Can Remove Dr Bukola Saraki As Senate President; By Mike A. A. Ozekhome, SAN




Mike A. A. Ozekhome, SAN
Mike A. A. Ozekhome, SAN
Much ink has been spilled and much needless rocus generated by the argument that a mere 24 Senators can lawfully as Senate President. Nothing can be further from the truth. Expectedly, this skewed view emanates mostly from pro-government lawyers and commentators, baying for the blood of Saraki, who had  defected from the ruling APC to the opposition PDP, inspite of sustained, spirited and overt pressures by the President, Presidency and the APC leadership not to do so. This interpretation, however, stands both reasoning and logic on their heads. It is full of puff and emotion, more of lachrymal effusion, than of solid law or constitutionalism. I shall show this anon. In statutory interpretation, one cannot import into a law that which is not so specifically stated. This is explained by the Latin maxim, “expressio unius est exclusio alterius” (the explicit  mention of one thing is the exclusion of another).

See the cases of Ogbuniya v Okudo (1976) 6-9 SC 32; AG of the Federation & 2 v Alhaji Atiku Abubakar (2007) NGSC 118 (decided April,2007); Osahon v FRN (2003) 16 NWLR (oh 845) 89; Commissioner for Local Government and Chieftaincy Affairs v Onakade (2016) LPELR 41133 (CA, decided on 5th May,2016). Now, sections 143 and 188 of the 1999 , as altered (“”), dealing with removal of the President, Vice president, governor and Deputy Governor respectively, specifically deal with those situations only and nothing more. They are totally different from section 50(2)(c) which specifically  deals with the removal or impeachment of the President or Deputy President of the Senate, or the Speaker or Deputy Speaker of the House of Representatives. Section 50(2)(c) clearly discounts the word “all”. If it wanted to import “all” as done in sections 143 and 188, it would have said so clearly. But, it did not. It simply says, “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”. Now, what is “that House”? For the Senate, it is the “House” that comprises 109 Senators, three from each of the 36 states of the federation and the Federal Capital Territory Abuja (see section 48). For the “House” in the case of the House of Representatives, it comprises of 360 members(see section 49). See also section 47 for the composition of both Houses. Surely, section 50(2)(c) also did not talk about “quorum” of any of the “Houses” as stated in section 54(1), which simply deals with the quorum of members before any of the Houses can sit at all. That is why in the case of sitting, section 54(1) provides for “one-third of ALL the members of the legislative House concerned”. This “quorum” issue cannot therefore be imported into the clear and unambiguous provisions of section 50(2)(c),which specifically deals with the business of impeaching those officers of the two Houses mentioned therein. Section 50(2)(c) did not also talk of “members present and voting”. It simply states, “not less than two-thirds majority of the members of that House”. Two-thirds of the 109 members Senate is 73, while two-thirds of the 360 members House of Representatives is 240.

In any event, because proceedings for impeachment of any of these principal officers of the bicameral legislature is a very sensitive legal and constitutional matter, courts in Nigeria,including the apex court, have severally interpreted what is meant by the phrase “two-thirds majority vote” of a House. In the causa celebre of The National Assembly v The President, FRN (2003) 41 WRN 94, the Court of Appeal in a lead judgement delivered by cerebral Justice Oguntade, JCA (as he then was;later JSC, and currently the Nigerian High Commissioner to the UK), interpreted “two-thirds” to mean two-thirds of the entire two Houses, ie, Senate and House of Representatives.The court held that to override the president’s veto of a bill, each House must garner 73 (Senate) and 240 (House of Representatives) members votes respectively, as representing two-thirds. Said the court:

“Its ordinary meaning, two-thirds majority of each House can only mean two-thirds of the membership of each House of the Senate and the House of Representatives. It cannot mean anything else. The section has no relationship with the ordinary quorum of each House. It does not employ a language referable to a proportion of the membership of each House. It is two-thirds of each of the whole of the Senate and House of Representatives. In order to override the president’s veto, there must be at least 73 members in the Senate and at least 240 members in the House of Representatives.But as I observed earlier, when the Senate made a motion of veto override on the Bill on 25/9/2002, there were only 55 Senators present. In the House of Representatives on 26/9/2002, when a motion of veto override was made,there 204 members. Clearly therefore, the appellant was not properly constituted when the Bill was “passed” into law on 25/9/2002 and 26/9/2002….. The lower court was therefore in error to have taken the position that what was needed to pass the Bill was the ordinary working quorum of the appellant and that the “motion of veto override” was in order”.

The apex court indeed relied on the well known rule of statutory interpretation termed “generalis specialibus non derogant”, which means that where there are provisions in a special Act and in a general Act on the same subject which are inconsistent, if the special Act gives a complete rule on the subject, the expression of the rule acts as an exception to the subject matter of the rule from the general Act. See AG, Ondo State v AG, Federation (2002) 9 NWLR (part 772) 222; Akindorile v Akindorile (2977) 1 FCAR  148; Panormous Bay v Olam Nig Ltd (2004) 5 NWLR (part 865) 1; Ibori v Ogboru (2004) 15 NWLR (part 895) 154. Thus, Oduyemi, JCA, in his brilliant concurring judgement emphasised, with uncommon lucidity, that:
“The normal rule of interpretation of the Constitution or of any statute for that matter is that general provisions must give way to special provisions-see AG, Abia State  v AG, Federation (supra). By virtue of that argument, I am convinced that the special provision of 2/3 majority of each House or of joint sitting of both Houses take supremacy over the general provisions of the statute with regard to quorum and a simple majority contained in sections 54 and 56 of the Constitution .

In the event, I am of the view that what is required in a proper application of section 58(5) of the Constitution is for the Bill to be supported by at least 73 members of the Senate and be supported by at least 240 members of the House of Representatives at a repeat third reading of the Bill”. In the same 2003, the Court of Appeal had, in Asogwa v Chukwu (2003) 17 WRN 71, had cause to interprete section 92(2) of the Constitution which deals with the equivalent provisions for the removal or impeachment of the Speaker of a House of Assembly of a says. The Court of Appeal was emphatic that the 2/3 majority envisaged by section 92(2) of the Constitution is two-thirds majority of ALL THE MEMBERS of the House of Assembly of the state that could remove the Speaker. I respectfully submit therefore, that, mutatis mutandi, and afortiori, section 58(5) which deals with the all important matter of  overriding Mr president’s veto of a bill is a special provision akin to section 50(2)(c) which deals with the sensitive issue of impeachment of the leadership of the NASS. These, therefore, override the general provisions of sections 54 and 56 which deal with the simple quorum required  for the ordinary legislative business of both Houses on the matters stated therein.

This argument is afforded further constitutional imprimatur by section 61 of the Constitution which provides to the effect that “the Senate or the House of Representatives may act notwithstanding any vacancy in its membership, and the presence or participation of any person not entitled to be present at or to participate in the proceedings of the House shall not invalidate those proceedings”. Were the perverse and ludicrous argument that 24 Senators can legally impeach Saraki to hold sway, it would have meant that even 17 Senators can easily remove the entire leadership of the Houses voted in by all the members of the Houses under section 50(1), even if only 50 Senators were alive, simply because that represents 2/3 of 50 Senators. Such a situation would not only be absurd, but would tantamount to doing violence to the  Constitution itself.

In statutory interpretation, it is elementary that the law should be interpreted in such a way as to avoid absurdity or infer meanings different from the clear  intention of the legislature. See Bronik Motors v Wema Bank Ltd (1983) LSCLR 296. Remember the conundrum faced by the Supreme Court as to what constituted 2/3 of 19 states in Awolowo v Shagari (1979) LPELR SC 62, decided on 26th September,1979).

Those deceiving the government with warped “legal opinions” on sensitive national matters that could snowball into serious cataclysmic miasma capable of consuming all of us, just to keep their cheap jobs and serve the insatiable bacchannalian appetites of their gods at the ephemeral corridors of power, must remember the immortal words of the Supreme Court in Military Governor of Lagos State v Odumegwu Ojukwu (2001) FWLR (part 50) 1779,1802, coran erudite Obaseki, JSC:

“The Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. Nigeria, being one of the countries in the world which professes loudly to follow the rule of law, gives no room for the rule of self-help by force to operate”.
I therefore earnestly caution paid “advisers” of the present government and the government itself, especially the Executive, from using any strong hand, jackboot, gunboat, or vile unconstitutional means to forcefully remove or  torpedo the leadership of the Senate with a mere 24 members, instead of the constitutionally mandatory 73 members.

That would reduce us to international odium, obloqhy, ridicule and opprobrium. It will show us  more as a nation given to might rather than right, crass impunity, rule of the thumb, rather than rule of law  and executive lawlessness. Let those who have ears, hear and those who have eyes, see. May God save Nigeria.

•Dr. , OFR, is a constitutional lawyer and human rights activist





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