How 25 senators can impeach Saraki, by Sunusi Musa

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Sunusi Musa
Sunusi Musa

The recent upheavals in the National Assembly has further brought to the fore the argument of what is the constitutionally required number of Senators or members of the House of Representatives to remove any of the presiding officers or their respective deputies.

By this, I mean the President of the Senate, the Speaker of the House of Representatives, the Deputy President of the Senate and the Deputy Speaker of the House of Representatives.

While some lawyers hold the view that the removal of any of the above mentioned officers required 2/3 majority of the all the members of each house, others are of the view that what is required is 2/3 of the members present at a sitting provided they form a quorum. Each of the two opposing views are basing their argument on the provision of the Section 50 (2) (C) of the Constitution of the Federal Republic of Nigeria 1999 (as altered) (1999 Constitution). It is apposite to quote the said provision before going further. The section provides;

2 The President or Deputy President of the Senate or the Speaker or Deputy Speaker of the House of Representatives shall vacate his office –
a. …
b. …
c. 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.

The contention of both sides is with respect to the meaning of the phrase ‘…not less than two-thirds majority of the members of that House…’ In other words, what does the framers of the constitution mean by “two-third majority of the members of that House”? Does it mean for instance to remove the President of the Senate, it requires a resolution passed by at least 73 Senators which is 2/3 of the 109 Senators of the Federal Republic of Nigeria? Or it means 25 Senators which the 2/3 of the 37 Senators that the Senate require to perform its legislative duties as provided under Section 54 (1) of the 1999 Constitution.

In interpreting the provision of the constitution, the courts have over the years insist that words should be given their natural meaning, unless doing so will lead to absurd situation. It is also not allowed in interpreting a legislation to import words which are expressly or impliedly excluded in couching the provision of particular statute. The Supreme Court, in AG of Abia State V. the AG of the Federation & Ors (2005) LPELR-3151(SC) held;
It is also good law that as a general rule of construction of statutes that a court is not entitled to read into a statute, words which are excluded expressly, or impliedly from it. See Attorney-General, Ondo State v.Attorney-General, Ekiti State (2001) 17 NWLR (Pt. 743) 706 at 767, (2001) FWLR 1431, where at pp. 1472

It is therefore with the above holding of the Supreme Court in mind that I intend to begin this journey of finding the true intent of the framers of our constitution while couching the provision of Section 50 (2) (c) of the 1999 Constitution.

It is my humble opinion that for us to unravel the meaning of the phrase not less than two-thirds majority of the members of that House…’ used in subsection (2) (c) of the Section 50 of the 1999 Constitution, the constitution must be looked at holistically. In other words, the provision shall not be read in isolation of other provisions of the constitution. It is important to consider other provisions of the Constitution in order to determine the meaning and effect of the words being interpreted.

In this regard, the provisions of sections 54, 143, and 188 are of relevance vis-à-vis interpretation of section 50 (2) (c) of the 1999 Constitution. This is because the sections contain provisions that deal with required number of legislators needed at a different times with respect to particular legislative business.

Section 54 of the constitution deals with the quorum required to conduct legislative business by each house of the National Assembly. Sub section (1) of the section provides;
54. (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.

Section 143 makes provision with respect to the removal of President or Vice President from office and of particular relevance here are subsections (1), (2), (4) and (9) thereof which provides;

143. (1) The President or Vice-President may be removed from office in accordance with the provisions of this section.
(2) Whenever a notice of any allegation in writing signed by not less than one-third of the members of the National Assembly-
(3)…
(4) A motion of the National Assembly that the allegation be investigated shall not be declared as having been passed, unless it is supported by the votes of not less than two-thirds majority of all the members of each House of the National Assembly.
(5)…
(6)…
(7)…
(8)…
(9) Where the report of the Panel is that the allegation against the holder of the office has been proved, then within fourteen days of the receipt of the report at the House the National Assembly shall consider the report, and if by a resolution of each House of the National Assembly supported by not less than two-thirds majority of all its members, the report of the Panel is adopted, then the holder of the office shall stand removed from office as from the date of the adoption of the report.

Section 188 of the 1999 Constitution deals with the removal of the Governor or his deputy form office and subsections (2), (4) and (9) of the section have, (apart from substituting the word ‘President’ with ‘Governor’) similar wordings with those of Section 143 (2), (4) and (9).

I have taken the pain to quote the above provisions in order to make it as easy for non-lawyers to understand my argument. The provisions above, like section 50 (2) of the same constitution make provision with respect to the number of legislators required at a particular time for particular legislative business. Sections 54 (1), 143 (4) & (9) and 188 (4) & (9) have a common denominator that qualifies the number of legislators required for a particular business of to be carried out. The denominator is the phrase ‘all the members’.
On the other hand, reading section 50 (2) (c), 143 (2) and 188 (2) one will observe the absence of the phrase ‘all the members’ in qualifying the number of legislators required for the legislative business being dealt with by the said provisions.

From the provisions of the above sections of the 1999 Constitution, one can easily deduct that by the combined provision of Section 50 (2) (c) and section 54 (1) & (4) of the 1999 Constitution, what is required for any motion intended to remove President of the Senate or his deputy is two-third of the members present at any sitting of the Senate provided there are up to 37 senators when such motion is tabled.
It amount to standing logic on its head to posit that a Constitution that empowers 37 Senators to exercise the legislative powers of the National Assembly provided by sections 58 and 59, will turn around and make the less important duty of dispensing with who is leading the Senators to perform the legislative duty more daunting. It cannot be the intendment of the framers of the same constitution to make it possible for 19 senators to make a President of the Senate to turn around to require 73 senators to unmake him. If 19 can make a President of the Senate, it is only logical to posit that 24 can unmake the same President of the Senate.

If the intendment of the framers of the Constitution is to require 73 Senators to remove President of the senate, certainly the word ‘all’ could have been inserted in between the words ‘of’ and ‘the’ in phrase ‘…not less than two-thirds majority of the members of that House…’ of section 50 (2) (c) of the 1999 Constitution.

Sunusi Musa Esq. is Abuja-based legal practitioner