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Ozekhome: Constitution Requires 73 Senators to Remove Saraki



• Cautions against using 24 lawmakers to impeach him •Even 36 APC-controlled states can’t remove Saraki, PDP chieftain tells Oshiomhole

Gboyega Akinsanmi in Lagos and Sylvester Idowu in Warri
As the All Progressives Congress (APC) insists on leadership change in the Senate, a human rights lawyer, Dr. Mike Ozekhome, yesterday noted that the 1999 Constitution requires at least 73 senators to impeach Senate President Bukola Saraki.
Also, a chieftain of Peoples Democratic Party (PDP) in Delta State, Chief Sunny Onuesoke, has told the National Chairman of the APC, Adams Oshiomhole, that even 36 states controlled by the APC cannot remove the Senate president.

Onuesoke, who made the statement while addressing journalists in reaction to Oshiomole’s demand that Saraki should resign or be impeached, described the APC chairman as someone who is “day- dreaming,” stressing that it would be highly impossible without corruptible imputation for APC to get 73 senators in a House of 109 senators to impeach Saraki.


Ozekhome, also a Senior Advocate of Nigeria (SAN), has also cautioned the APC and presidency against listening to some perverse legal opinion from different quarters that 24 members of the upper chamber could lawfully impeach Saraki as the Senate president.
He gave this warning in a statement he issued yesterday, citing relevant sections of the 1999 Constitution and different judicial precedents to justify the requirement of 73 senators for the impeachment of the principal officers of the National Assembly.

Ozekhome’s position aligns with the legal opinion which another senior lawyer, Mr. Femi Falana, gave last week. In his legal opinion, Falana noted that the APC “cannot remove Saraki without the two-third majority of the entire lawmakers in the upper chamber.
After Saraki’s defection to the Peoples Democratic Party (PDP) about three weeks ago, the APC, especially its National Chairman, Oshiomhole, had not only been asking him (Saraki) to resign as the Senate president, but also threatening to impeach him by all means.

But in a three-page statement yesterday, Ozekhome explained the process and technicality of impeaching the Senate president or Speaker of the House of Representatives beyond provision enshrined in section 50(2) of the 1999 Constitution.
The senior lawyer first cited sections 143 and 188 of the 1999 Constitution, which according to him, deal with the impeachment of the president, vice president, governor and deputy governor respectively.


He noted that the sections “are different from section 50(2), which deals with the impeachment of the president or deputy president of the Senate, or the Speaker or deputy Speaker of the House of Representatives.”
He pointed out that section 50(2)(c) “does not use the word all in its provision. 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 the Chamber.”
He explained that the Senate “comprises 109 senators. The House of Representatives comprises 360 members. Surely, section 50(2)(c) does not talk about quorum of any of the chambers as stated in section 54(1), which simply deals with the quorum of members before sitting.

In the case of sitting, he said section 54(1) provided for one-third of all the members of the legislative chamber, thus arguing that the quorum issue “cannot be imported into the clear and unambiguous provisions of section 50(2) (c).”
Specifically, Ozekhome noted that Section 50(2)(c) did not also talk of members present and voting, but simply required not less than two-thirds majority of the members of that chambers to remove the president or deputy president of the Senate or the Speaker or deputy Speaker of the House of Representatives.


Contrary to an argument by presidential advisers that 24 senators could impeach Saraki, the senior advocate noted that two-thirds of the 109 members of the Senate “is 73 while two-thirds of the 360 members of House of Representatives is 240.”
Ozekhome, therefore, said different courts in Nigeria, including the Supreme Court, “have interpreted what is meant by the two-thirds majority vote of a chamber because the impeachment proceedings of the principal officers of the bicameral legislature are a very sensitive legal and constitutional matter.”

He cited a decision of the Court of Appeal in a case between the National Assembly versus the President of the Federal Republic of Nigeria (2003), which interpreted the two-thirds majority “to mean two-thirds of the entire two chambers-the Senate and House of Representatives.”

Then presided over by Justice George Oguntade, the court held that to override the president’s veto of a bill, each chamber “must garner 73 votes in the Senate and 240 votes in the House of Representatives respectively, as representing two-thirds.”
In its ordinary meaning, the court held that two-thirds majority of each chamber “can only mean two-thirds of the membership of each chamber of the Senate and the House of Representatives. It cannot mean any other thing 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.”
On these grounds, Ozekhome said: “Were the perverse and ludicrous arguments that 24 senators can legally impeach Saraki to hold sway, it will have meant that even 17 senators can easily remove the entire leadership of the chambers voted in by all the members under section 50(1) of the 1999 Constitution.”

He noted that such a situation “will 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.”

Ozekhome then cited a judgment of the Supreme Court in a suit between the Governor of Lagos State versus Odumegwu Ojukwu (2001) to warn the APC and the President Muhammadu Buhari administration against undue infraction of the 1999 Constitution.
The court held: “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.”

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