Defection: Must Saraki Resign As Senate President? By Mike Ozekhome SAN

The first point to make here is that section 68(1) of the 1999 Constitution provides inter alia, that any member of the 109 Senators and 360 members of the House of Representatives who loses his Nigerian citizenship, or is made a minister, or decamps from his political party to another party AUTOMATICALLY loses his seat. However, section 68(1)(g) of the same 1999 Constitution permits a legislator to decamp or cross carpet from his original party under whose platform he contested and won election, to a new party if he can show that there has occurred a division or factionalization of his original party, or that his party has merged with another party, or a faction of another party. It is a question of fact, not of law, if there exists a division in a party. In the case of APC, 24 states held parallel congresses before the national convention. Can there be any better or stronger evidence of a division in a party? I think not.To add to the gravity of this internal implosion and vertical and horizontal schism, a new wing, r-APC emerged from the APC at the national level. It is headed by no less a person than Buba Galadima, a tested political strategist, Buhari’s right hand man and former Secretary of Buhari’s CPC. Although APC leadership had dismissed the breakaway factional members that have fecund Kassim Afegbua as their spokesman, the wind was removed from their sail when they commenced frantic fire brigade appeasement missions to the respective homes of these aggrieved members. They did these nichodemusly at wee hours of the night, even when they had claimed they would not lose sleep. They lost plenty sleep. The pandora box has since been broken as three governors, the Senate president,15 Senators, over 40 House of Representatives members, Local government chairmen, Councillors, Commissioners, etc, have defected in droves to the PDP, and some few ones to ADC and SDP. And still counting… So, all the legislators, including Dr Bukola Saraki, are constitutionally covered and immuned from removal from office, because their APC party is eventually irredeemably broken into smithereens and totally factionalized. Must Saraki and Yakubu Dogara (I can bet he will soon defect) lose their leadership positions as Senate and Speaker of the House of Representatives respectively by this defection? The answer is a categorical no. There is nowhere in the extant 1999 Constitution where it is provided that the ruling party must provide these principal heads of the bicameral legislature. Indeed, APC was lucky in June, 2015, when Saraki, then in APC, was narrowly elected Senate President and Ike Ekweremadu of PDP as his deputy. It could have been the other way round as has happened many times in the USA, and heavens would not have fallen. Section 47 of the Constitution provides that the Senate shall consist of 109 members and the House of Representatives 360 members. By virtue of section 50(1)(A) of the Constitution, the President of the Senate and the Deputy President of the Senate shall be elected by members of the Senate. By section 50(1)(b), the Speaker and Deputy Speaker of the House of Representatives shall be elected by members of the House. There is nowhere it is stated that such officers must come from any political party, whether ruling, or in opposition. The only circumstance in which the Senate President or the Speaker of the House of Representatives can lose his seat is provided for in section 50(2) of the same Constitution. It states, inter alia, that the President of the Senate, the Deputy President of the Senate, the Speaker of the House of Representatives and the Deputy Speaker of the House of Representatives shall vacate their offices through a resolution passed by 2/3rd majority votes of members. Consequently, for Saraki (and later, Dogara), to be removed, each of the houses needs 2/3rd majority votes. In the case of the Senate, that is a humongous 73 senators,and a whopping 240 members of the House of Representatives to remove Dogara. That is an impossible task under the present circumstances even if this corrupt government that feigns anti corruption war promises all the oil blocks and automatic tickets to the legislators. This is because its antecedents of self denial on everything it ever promised during campaigns makes it very untrustworthy 0to be believed on anything. In law, we call it similar facts. The last time I checked, APC and PDP stand shoulder to shoulder on membership, with each laying claim to numerical superiority. So,where will it achieve this talismanic constitutional superiority of 2/3 majority votes to sack Saraki and Dogara. It will not happen. The deft Machiavellian and superior sagacious political acrobatics of Saraki and r-APC movement have left APC breathless and confused. They must go to the drawing board, a tabula rasa, if it hopes to snatch the burning kernel from the blazing inferno. The next weeks and months will be very interesting. My Kobo take. Dr. Ozekhome (SAN) is a constitutional lawyer]]>