Senate President David Mark has been advised against bowing to pressure from the People’s Democratic Party (PDP) to declare vacant seats of senators who defected to the All Progressives Congress (APC).
A Senior Advocate of Nigeria (SAN), Chief Adegboyega Awomolo argued that by virtue of the provision of Section 48 of the Constitution, Mark lacked the powers to declare the seat of a Senator vacant without first obtaining an order from a competent court.
In a statement at the weekend, Awomolo, a former Osun State Attorney General, contended that the office of a Senator is a creation of Section 48 of the Constitution, who shall be elected by one third of each of the states of the federation.
Awomolo contended that the certificate of return issued by the Independent National Electoral Commission (INEC) entitled a Senator to continue to be in office for four years, except he is removed by a court or tribunal lawfully constituted, resigned, died or he was otherwise removed under Section 68 of the Constitution.
“Can the Senate President remove or declare vacant the office or seat of a Senator who had defected to another political party or who has ceased to be a Senator by reason of Section 68(1)(a – h) of the Constitution?”
In answering his own question, Awomolo argued that “the Senate President, on his own as president of the Senate, cannot take a decision to declare vacant the seat of a Senator for the following reasons:
“He has no constitutional or statutory powers to revoke, annul or withdraw the certificate of returns issued by INEC to any Senator.
He cannot discard, annul or disregard the electoral mandate given to a Senator like him, which is given by the electorate of the affected senatorial district.
“The constitutional role, duties and powers given under Section 53 or any other provision of the constitution does not extend to determination of validity, lawfulness or whether a Senator has ceased to be a member of the Senate.
“It is an offence under Section 57 of the Constitution for any person to sit or vote in the Senate, knowing or having reasonable grounds to know that he is not entitled to sit in the Senate. The legal implication of this is that there must be a prosecution and conviction for such a person by a court of competent jurisdiction, after which the seat of the senator will be declared vacant.
“Section 68 of the Constitution creates a tenure for every senator and prescribes conditions for ceasing to be a senator. Section 68(2) provides that the President of the Senate shall give effect to termination of tenure of a member only after a member shall first present evidence satisfactory to the Senate that any of the provisions of the subsection has become applicable in respect of that member.”
According to Awomolo, what this means is that there must be an occurrence of the events in sub section (1) and a formal presentation must be made to the entire Senate for decision.
In such a case, he argued, such decision would be resolved by 2/3 majority of the Senate.
“Where the facts are contentious, and unclear, the rule of law requires reference to a court of law for determination because the Senate President cannot make a declaration of the state of the law. It is only a superior court of record that can state a declaration of the meaning of a provision of the Constitution based on the peculiar facts,” the lawyer added.
He said the Senate President, not being the appointing authority, could not exercise the power to terminate a senator’s tenure.
Awomolo said: “The peculiarity of the matter puts the Senate President in the midst of controversy. Being a member of the highest ruling organ of PDP, he cannot be a judge in his own case. The rule of natural justice and the rule of law will not permit the President of the Senate to use Police or force to evict or bar the affected Senator.
“A combined reading of Sections 68(2); 79(a)(iii) and 285(i)(c) of the Constitution is that the President of the Senate can only give effect to declare vacant the seat of a member after the Tribunal lawfully established for that purpose has heard and determined whether the seat of a member of the Senate has become vacant.
“There must be a declaration and a decision of the appropriate Court or Tribunal that the seat of a member of the Senate has become vacant. The President of Senate cannot exercise judicial powers of a court of law. That will amount to a violation of Section 1 of the Constitution, null and void and of no event.
“A latter provision of the Constitution is deemed to have overriding effect and force. There must be a declaration and a decision of the appropriate Court or Tribunal that the seat of a member of the Senate has become vacant.
“The President of Senate cannot exercise judicial powers of a court of law. That will amount to a violation of Section 1 of the Constitution of the Federal Republic of Nigeria, null and void and of no event,” Awomolo said.
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