Melaye: Lawyers Fault Senate, Say Power To Recall Lies With INEC

Contrary to the position of the Senate that the Independent
National Electoral Commission (INEC) lacks the power to recall a
legislator, senior lawyers in the country yesterday held that the
power to recall any lawmaker from both the national and state
assemblies rest squarely on the electoral body and the
constituents.

The members of the inner bar who spoke exclusively with our
reporter on the issue argued that both provisions of the
Constitution and the Electoral Act is unambiguous in respect of the
processes of recalling any legislature.

They noted that there is nowhere legislative process, such as
motion, debate or voting by members of any legislative house is
required before a member is recalled.
They further held that Senator Dino Melaye is vividly aware of the
constitutional requirements, which is the very reason he approached
the court to restrain INEC, knowing fully well that it is only
through a court injunction his recall process can be halted and not
by Senate resolutions or its threat against the commission over
appropriation of fund for recall exercise.

The lawyers advised the Senate to guide against legislative
rascality and impunity, which they insist can never improve or
deepen democratic understanding and rule of law in the country, but
rather create chaos and resorting to self-help in the long run.

Lagos lawyer and human rights activist, Chief Femi Falana (SAN)
said, “The procedure for recall of a legislator has been spelt out
in the constitution and the Electoral Act. INEC has a role to play
and it has duly put the engine in motion for the recall process.
Melaye is well aware of the legal provisions; hence, he has
approached the court to stop that exercise.
“Senate should be advised to stop indulging in legislative
rascality by passing resolutions that are clearly illegal and
unconstitutional”.

Also faulting the Senate over its position on Acting President
Yemi Osinbajo, Falana said, “No Senate that knows its onion will
insist that Section 2 (3) of the EFCC Act which requires senatorial
confirmation of the appointment of its chairman will take
precedence over Section 171 of the 1999 Constitution which has
empowered the President to appoint or remove the head or acting
head of any extra-ministerial officials of the federal
government.

“It is trite law that any provision of any law that is
inconsistent with the provision of the constitution is null and
void to the extent of such inconsistency. The SGF, Head of Service
or Permanent Secretaries are all extra-ministerial officials of the
government. Why is the senate not insisting on their
confirmation?”, the learned silk queried.
On his part, a constitutional lawyer, Alasa Ismaila, noted that
section 69 of the Constitution clearly addresses the issue of
recall of Senators and members of the House of Representatives.

He said, “It (the said section) simply states that member of the
Senate or of the House Representatives may be recalled as such a
member if (a) there is presented to the Chairman of the INEC a
petition in that behalf signed by more than one-half of the persons
registered to vote in that member’s constituency alleging their
loss of confidence in that member and (b) the petition is
thereafter, in a referendum conducted by INEC within ninety days of
the date of receipt of the petition, approved by a simple majority
of the votes of the persons registered to vote in that member’s
constituency.

“After the referendum, INEC Chairman will write the Speaker or
the Senate President that Section 69 has been complied with, in
case by simple majority of the constituents’ votes the member loses
in the referendum.

“Section 68 (1a -h) discusses situations under which a member
shall lose membership and the only provisions that deals with
recall is Section 68(1h) and it is only INEC chairman that can
determine or issue certificate for recall, informing the Speaker or
the Senate president that section 69 is complied with.

“It is that certificate or letter notifying him that the Senate
president brings to the attention of his colleagues that the member
has been recalled. This provision don’t ask the member to debate or
vote after referendum has been conducted.

“That section, as stated, does not require the consent of the
presiding officers of the National Assembly for the recall but only
seeks to inform them of the outcome, contrary to the claim of the
senate that it would also verify the legitimacy of the votes before
a conclusion is made”, Ismaila concluded.

Also speaking, another constitutional lawyer, Mukta Abanika Isah
noted that the Senate is trying to be tyrannical about the recall
process of Senator Melaye.

He said, “The Senate is rather being tyrannical for asking INEC
more or less to put on hold the process of this recall until it
comes first by way of virement for the approval of N300 million to
fund general recall exercise since no amount was earlier
appropriated for the commission to undertake any recall
exercise”.

LEADERSHIP

Contrary to the position of the Senate that the Independent
National Electoral Commission (INEC) lacks the power to recall a
legislator, senior lawyers in the country yesterday held that the
power to recall any lawmaker from both the national and state
assemblies rest squarely on the electoral body and the
constituents.

The members of the inner bar who spoke exclusively with our
reporter on the issue argued that both provisions of the
Constitution and the Electoral Act is unambiguous in respect of the
processes of recalling any legislature.

They noted that there is nowhere legislative process, such as
motion, debate or voting by members of any legislative house is
required before a member is recalled.
They further held that Senator Dino Melaye is vividly aware of the
constitutional requirements, which is the very reason he approached
the court to restrain INEC, knowing fully well that it is only
through a court injunction his recall process can be halted and not
by Senate resolutions or its threat against the commission over
appropriation of fund for recall exercise.

The lawyers advised the Senate to guide against legislative
rascality and impunity, which they insist can never improve or
deepen democratic understanding and rule of law in the country, but
rather create chaos and resorting to self-help in the long run.

Lagos lawyer and human rights activist, Chief Femi Falana (SAN)
said, “The procedure for recall of a legislator has been spelt out
in the constitution and the Electoral Act. INEC has a role to play
and it has duly put the engine in motion for the recall process.
Melaye is well aware of the legal provisions; hence, he has
approached the court to stop that exercise.
“Senate should be advised to stop indulging in legislative
rascality by passing resolutions that are clearly illegal and
unconstitutional”.

Also faulting the Senate over its position on Acting President
Yemi Osinbajo, Falana said, “No Senate that knows its onion will
insist that Section 2 (3) of the EFCC Act which requires senatorial
confirmation of the appointment of its chairman will take
precedence over Section 171 of the 1999 Constitution which has
empowered the President to appoint or remove the head or acting
head of any extra-ministerial officials of the federal
government.

“It is trite law that any provision of any law that is
inconsistent with the provision of the constitution is null and
void to the extent of such inconsistency. The SGF, Head of Service
or Permanent Secretaries are all extra-ministerial officials of the
government. Why is the senate not insisting on their
confirmation?”, the learned silk queried.
On his part, a constitutional lawyer, Alasa Ismaila, noted that
section 69 of the Constitution clearly addresses the issue of
recall of Senators and members of the House of Representatives.

He said, “It (the said section) simply states that member of the
Senate or of the House Representatives may be recalled as such a
member if (a) there is presented to the Chairman of the INEC a
petition in that behalf signed by more than one-half of the persons
registered to vote in that member’s constituency alleging their
loss of confidence in that member and (b) the petition is
thereafter, in a referendum conducted by INEC within ninety days of
the date of receipt of the petition, approved by a simple majority
of the votes of the persons registered to vote in that member’s
constituency.

“After the referendum, INEC Chairman will write the Speaker or
the Senate President that Section 69 has been complied with, in
case by simple majority of the constituents’ votes the member loses
in the referendum.

“Section 68 (1a -h) discusses situations under which a member
shall lose membership and the only provisions that deals with
recall is Section 68(1h) and it is only INEC chairman that can
determine or issue certificate for recall, informing the Speaker or
the Senate president that section 69 is complied with.

“It is that certificate or letter notifying him that the Senate
president brings to the attention of his colleagues that the member
has been recalled. This provision don’t ask the member to debate or
vote after referendum has been conducted.

“That section, as stated, does not require the consent of the
presiding officers of the National Assembly for the recall but only
seeks to inform them of the outcome, contrary to the claim of the
senate that it would also verify the legitimacy of the votes before
a conclusion is made”, Ismaila concluded.

Also speaking, another constitutional lawyer, Mukta Abanika Isah
noted that the Senate is trying to be tyrannical about the recall
process of Senator Melaye.

He said, “The Senate is rather being tyrannical for asking INEC
more or less to put on hold the process of this recall until it
comes first by way of virement for the approval of N300 million to
fund general recall exercise since no amount was earlier
appropriated for the commission to undertake any recall
exercise”.

LEADERSHIP