DINO MELAYE; SENATE AND LAWYERS AT WAR OVER POWER TO RECALL

The Senate and legal experts in the country yesterday disagreed over constitutional provisions for the power to recall a lawmaker.

While the Red Chamber insisted that it has a role to play in the recall process of a legislator, the experts, including constitutional lawyers and members of the inner bar argued that the power to recall lies mainly with the constituents of a lawmaker and the Independent National Electoral Commission(INEC).

This is even as the Senate and Kogi State government traded tackles over the ongoing recall process of Senator Dino Melaye (APC Kogi West) by his constituents and INEC, with the Red Chamber maintaining that the state government was behind it.

Kogi State, through its Attorney- General and commissioner for Justice of, Ibrahim Sani Mohammed, had on Monday kicked against Senate's position on the recall process.

The Attorney- General had in a statement took exception to submissions made by the deputy Senate president, Ike Ekweremadu, last week during Senate's deliberation on the recall process, the bulk of which was later taken as the Senate's position on the raging issue.

Mohammed said, "A situation where the Deputy Senate President would on the floor of the Senate describe a lawful exercise of recall initiated by the good people of Kogi West Senatorial District as an exercise in futility or posit that the constituents are wasting precious time, is highly regrettable and condemnable.

"I must also put on record that contrary to the legal opinion of Senator Ekweremadu on the role of the Senate in the recall process, the Senate has no role whatsoever in the exercise than to receive the Certificate under the hand of the Chairman of INEC stating the provisions of sections 69 of the constitution have been complied with in line with sections 68(1h) and 69 of the 1999 constitution.

"Indeed by the provisions of INEC regulations for the recall of a legislator, a legislator stands recalled upon INEC's confirmation of a majority vote in favour of the recall".

But in his reaction to the Attorney General's submission, the deputy Senate president insisted that the Senate has a very vital role to play in the process, just as he questioned the intellectual and legal competence of the Justice commissioner on the issues on ground.

Ekweremadu said, "I would have ignored him (Mohammed) but because of his statement in the final paragraph: 'but I must put on record that contrary to the legal opinion of Senator Ekweremadu on the role of the senate in recall process'.

"He is saying that the Senate has no role. I stand by what I said the other day and I would like to take him to Section 68 (1h) and (2) to show him the role of the Senate, which he says has no role.

"Section 68 (1h) reads: 'The President of the Senate or, as the case may be, the Speaker of the House of Representatives receives a certificate under the hand of the Chairman of the Independent National Electoral Commission stating that the provisions of section 69 of this Constitution have been complied with in respect of the recall of that member'.

"That was the section the Attorney General was referring to but he mischievously refused to state the provisions of section 2 or probably out of ignorance, he did not put Section 68(2) which states: 'The President of the Senate or the Speaker of the House of Representatives, as the case may be, shall give effect to the provisions of subsection (1) of this section, so however that the President of the Senate or the Speaker of the House of Representatives or a member shall first present evidence satisfactory to the House concerned that any of the provisions of that subsection has become applicable in respect of that member'.

Hitting back at Kogi State government, Ekweremadu said, "I don't know how he came to conclusion that we don't have a role. I stand by my position.

"So, I pity the people of Kogi that hired this type of AG. It is unfortunate that we are paying a public servant and he is unable to do a simple work of looking at the constitution".

Towing Ekweremadu's position, the upper legislative chamber insisted that it has constitutional role to play in the process as against the position of the state government that it has no constitutional role whosoever in the process.

In his remarks, Senate President Bukola Saraki concurred to the submission made by his deputy regarding the constitutional right given the Senate in the recall process and declared that the advertorial by the Attorney General clearly shows that the recall exercise against Senator Melaye was engineered by the state government.

"The Deputy President of the Senate came under Order 43 and according to our rules it cannot be further debated, but honestly I am concerned with the calibre of people holding very senior positions in the land. Even those of us who only have association with the legal profession by being married to one have learnt over the years to know that this is straight forward.

"This pretty much shows that it is government that is truly behind the entire process. This is a very simple matter in the constitution. You did not write it, neither did you invent it. So, DSP you were just reading it as it is and you are right. As you said, it is very unfortunate for the people of Kogi State to have such a person as their Attorney- General".

You Have No Role In Recall Process, Lawyers Tell Senate:-

But countering Senate's position that it has constitutional power of the recall process, senior lawyers in the country contended that there is no legislative process involved in the recall process.

Former president of Nigerian Bar Association (NBA), Mr Joseph Daudu (SAN), averred that the Senate has no role to play in the recall exercise of Melaye.

In a chat with LEADERSHIP yesterday, Daudu argued that section 68 (2) Ekweremadu was referring to does not demand for any legislative action in the forms of motion, votes or resolutions in any recall process.

The learned silk said, "Section 68 (2) simply asks legislative leadership or member to give effect to process undertaken and completed under Section 68 (1). It never requires legislative exercise whatsoever like voting, motion or resolution after certificate is issued and transmitted by INEC chairman confirming to leadership of the Senate that a member has been recalled.

"What other evidence are the Senators talking about other than the certificate written by INEC chairman and delivered to Senate president in this instance, confirming that a recall process is completed?" Daudu queried.

Another member of the inner bar, Chief Mike Ahamba (SAN) said, while the provisions of the constitution as regards the Senate in the recall process is to merely ratify what INEC has already done, the upper chamber must be very careful because it is under a test at the moment.

His words: "There must be a combined reading of Sections 68 (1h), 68 (2) and 69. Section 69 gives power to recall, while Section (2) gets Senate involved. The purpose is to ratify what INEC has done, to ensure the commission complied with the laid down rule. But Senate is under serious test now and must be careful not to be seen to be doing self-protectionism in order to discourage future recall processes. Having been given power to ratify, it must be exercised judiciously and justiciably devoid of emotion.

"They must take note that Senate is seen by the public to be biting more than it can chew. It is no longer representing Nigerians. Rather, it is acting as if it is Nigeria itself by its posture'', Ahamba said.

On his part, Professor Akinseye-George (SAN) told LEADERSHIP that Senate has nothing to do with recall process of a legislator. "Senate has no role to play. The decision of INEC is final, except where a court of competent jurisdiction faults it'', he stated.

Also, a Lagos Lawyer, Emmanuel Majebu, noted that no part of the 1999 constitution (as amended) gives the Senate the power of review over the process of recall.

"Are they saying that if a Senator who is elected mid term presents his INEC issued certificate of return they would tell the voters to convince the Senate that the person was elected?", he queried.

He argued that the constitution says a Senator loses his seat if INEC presents a certificate to the Senate, informing it that a Senator has been recalled.

The learned jurist said, "The constitution provides very clear on the steps to be taken and by whom before a Senator can be recalled. Section 69 of the 1999 constitution makes provisions for 10 steps that must be followed before a Senator is recalled. The good people of Kogi West Senatorial district have complied fully with Stage 1 to 4 of the recall process.

"So, the process can only be subjected to judicial review and it is only the courts that can examine whether or not the laws were obeyed. The lawmakers cannot constitute themselves into the judiciary, Majebi added.Also jumping into the arena, the president, Voter Awareness Initiative, Wale Ogunade, said the Nigerian Senate as an institution has continued to disparage itself by its indulgence in unnecessary meddlesomeness and pettiness.

He also stressed that it is sad that Ekweremadu, a lawyer who ought to know better, is the one leading this opprobrious dance, while the rest of the Senators are following.

Ogunade argued: "The Senate has no role in the recall of a lawmaker as far as constitutional provisions are concerned. It is time Nigerians rise up to the Senate by occupying the National Assembly.

"Ekweremadu and the rest of the smSenators in the Senate already know the effect of Dino's recall. If successful, a good number of them would soon follow suit as most of them have no business being in the Senate in the first place.

"The Senators are twisting the Constitution to Favour themselves because they are taking advantage of the fact that many Nigerians don't read.

"For the records, there is nowhere in the constitution or Electoral Act where it is written that the Senate has a role to play in the recall of a legislator. The only place the Senate is mentioned is in the aspect where INEC needs to notify the body about the lawmaker being recalled".

Also speaking, a senior advocate of Nigeria, Chief Niyi Akintola (SAN), noted however that recall is a euphemism for impeachment which is a process involving the electorate, INEC, National Assembly and sometimes the court as well.

"Each must be taken. It is like the impeachment of the state governor, which is not easy, neither is it a tea party. Senate has a role to play, just like INEC and the electorates. Fail in one, fail in all", he pointed out.

Source;Leadership