BY AHURAKA ISAH,
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 LEADERSHIP 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”.