The Constitutionality Of The Election Of The President Of The Senate By Sunusi Musa

There has been a lot of argument as to whether what transpired at the floor of the Senate on the 10th of June 2015 as regards to the election of Sen Bukola Saraki as the President of the Senate is in tandem with the provision of the Nigeria’s constitution or not.

From what I gathered from the argument on social media pages and personal discussion with some people, most of those claiming that the emergence of Sarki was unconstitutional seems to confuse  morality with legality.

While it may be immoral (particularly for APC then Senators elect) to have allowed the inauguration to go on without their colleagues present, there is nothing illegal about it. In other words, APC senators owe their colleagues and the party a moral not a legal duty to have made a spirited effort in making sure that the inauguration of the senate was delayed so that their 51 colleagues who were absent will be present.

But for us to have the issue in clear perspective, the starting point should be the legal procedure for summoning the first sitting of the Senate. Put differently, what are the what, when and how of the first sitting of the Senate from the legal point of view? I think this can be answered by looking at the constitutional provision as well as the standing orders of the senate that deals with the issue under discussion.

The procedure for summoning the first sitting of the National Assembly and Senate in particular, is provided for by the 1999 constitution under sections 52, 53, 54, 56, 60, and 64. From what I have read so far against the election of Sen Saraki, the grouse of the antagonist is whether there was compliance with the provisions of sections 54 and 64 of the constitution? The two sections deals with the issue of quorum and proclamation respectively.

Many people who form legal opinion on the basis of what they think, not what they read, opined that there was no quorum for the inauguration to take place. According to them, there was no 2/3 majority of senators elect as at the time the CNA inaugurated the senate. When asked, as to the basis of their argument, they will say the constitution, but when press further to pinpoint the provision of the constitution backing their argument, they realize the fallacy of their argument.

One may ask, what is the quorum required for the inauguration of the Senate? The answer is provided by section 54 of the constitution which provides “the quorum of the Senate… Shall be one-third of all members…” This provision is further re-echoed by Order 10 Rule (1) of the Senate Standing Orders. That being the case, we had 109 Senators elect therefore 1/3 of them is enough to form a quorum for the inauguration of the senate. It is impossible to get 1/3 of the Senate, but it can safely be argued that where there are 37 senators present which slightly above 1/3, the quorum of the senate is properly constituted. This means that with 57 Senators present, the senate were in excess of 20 senators above the minimum constitutional requirement for it to be inaugurated.

This also means that even if the entire APC Senators were absent, the inauguration could have still proceeded with 49 PDP Senators and leaders could have emerged and there is nothing unconstitutional about it.

The second grouse is whether the senate was properly summoned for the first sitting? To answer this question, we need to know who is to summon the first sitting of the National Assembly and under which circumstances.

The constitution as well as the senate standing orders did not contain explicit provision on who is to summon the first sitting of the senate. However, one can infer that the responsibility to summon the first sitting of the Senate fall within the shoulders of the Clerk to the National Assembly when sections 60 and 64 (3) of the constitution is read together with Order 2 of the Senate Standing Orders.

By the provision of section 60 of the 1999 constitution, the senate has the power to make regulation with regard to procedure of carrying out its business including the procedure for summoning and recess. It is pursuant to that Section that Senate made Order 2 of the Standing Orders of the Senate. That Order makes provision as to the first sitting of the Senate.

Like I said, the Order is not explicit as who is to summon the first sitting but by necessary implication and the principle of law established in the U.S.A. Case of McCulloch V. Maryland, one can safely say that it is the clerk to the National Assembly who  has the power to summon the first sitting of the Senate.

But the power of the clerk of summoning of the first sitting is subject to the provision of section 64(3) of the 1999 constitution which vests the president with power to sign proclamation of the National Assembly immediately after taking oath of office as President.

It is not in dispute that the President in the exercise of his power, had earlier signed the proclamation of the National Assembly as a result of which the CNA summon the first sitting of the Senate on 9th June by 10:00 am. That being the case, it is expected that all Senators will be seated  before 10:00 am in compliance with Order 2 Rule(1) of the Senate Standing Orders.

It was some minutes after ten that CNA entered the Senate chambers in order to perform the rituals that will lead to the inauguration of the Senate. As at the time the CNA arrived, 51 Senators were not on seat as stipulated by the standing orders of the senate.

The CNA having realize that there was quorum, he decided to go ahead with the procedure as provide by the standing orders and in compliance with the Presidential proclamation which  appointed 10:00 am as the time for the inauguration.

After the roll call, the next business of the day is the election of the President of the Senate and his deputy which is provided by Order 3 of the standing orders. Orders 3 Rule (1) of the orders provides that each senator “MAY (emphasis mine) before taking oaths of office… Take part in the election of the President and Deputy President of the Senate.”

The operative word in the provision quoted above is the word ‘may’ which connote discretion on the part of    each senator either to participate in electing  the presiding officers or not. In other words, it is not mandatory on each senator to participate in the election of presiding officers.

That being the case, it is safe to conclude that while it is mandatory to inaugurate the Senate on the appointed date and time as indicated by the proclamation, it is not mandatory that the inauguration must be in the presence of all senators elect. Provided, at the appointed date and time, there is sufficient number to comply with the provision of section 54 of the constitution, the CNA must carry out the inauguration as directed by the President. And to my understanding that was what happened that day.

That being the case, I am of the view that the election was done in accordance with the provision of the constitution of the Nigeria and extant law applicable therein.

One can only add that it is very unfortunate that we are starting on very wrong note for failure of our party to manage our electoral success well. However one can take solace in the conduct of the President who have against all odds, keep to his earlier commitment as contain in his inauguration speech with regard to respect for and commitment to the principles of separation of power.

Sunusi Musa Esq.

11/06/2015