The Two Senator Endorsment Rule And Its Constitutionality, By Femi Gbajabiamila
I am not a member of the Senate but being a member of the National Assembly and part of the leadership of the legislature, I am compelled and duty bound to opine on any matter that touches on it. It is my considered opinion that the above made up rule by the Senate cannot pass the test of constitutionality.
Whilst Section 60 of the constitution gives the Senate the right to its own rules of business, Section 1(3) of the same Constitution expects such rules not to conflict with any provision in the constitution and declares that where there is any such conflict the constitution will take preeminence and such rule will be null and void.
Indeed Section 60 where the Senate derives the powers to formulate its rules declares that such powers are “subject to the provisions of this constitution” Furthermore, the rules envisaged in section 60 are those codified in the Senate Rule Book and I am not aware that there is anything like the 2 Senator endorsement rule in the book. It is only when there is no provision or a lacuna exists in the rule book in a given situation that the Senate is allowed by its rules to fall back on a convention. The convention so envisaged is the convention and practice in other legislatures and over time. The 2 senator rule is not a legislative practice in any part of the world and not in Nigeria for that matter.
But back to the constitution and why this new rule of engagement cannot pass constitutional muster and is caught and limited by the provisions of several sections of the constitution.
Firstly Section 147 (2) of the constitution provides :
“ Any appointment to the office of the Minister of the Government of the Federation, shall if the nomination of any person to such office is confirmed BY THE SENATE (emphasis mine) be made by the President“. In other words confirmation or approval is clearly by the Senate (simple majority) and not by 2
Senators from the nominee’s state. Where even all 3 senators from a state disapprove of a nominee, the nominee can still get the nod of majority of senators and this is what the law requires. The law never envisaged the screening of nominees to be a two man exercise which is what this is tantamount to.
Furthermore section 56 of the constitution is clear on the issue of voting on any issue in the Senate. It says:
56 (1) Except as otherwise provided by this Constitution, ANY QUESTION PROPOSED FOR DECISION (emphasis mine) in the Senate or the House of Representatives shall be determined by the required majorityof the members present and voting…”
56 (2)” Except as otherwise provided by this Constitution, the required majority for the purpose of determining ANY QUESTION shall be A SIMPLE MAJORITY (emphasis mine”
The above 3 provisions in the constitution make it abundantly clear that no rule of the Senate can subject the nomination of a minister by Mr. President to the votes , confirmation of just two persons. Simple majority is the law except where the constitution provides for two thirds majority as in for example constitutional amendments.
To subject a nominee to the whims and caprices of just 2 senators rather than the constitutional requirement of 55 senators (simple majority) is illogical. A situation where 2 senators from one state decide to play politics and filibuster a competent nominees confirmation will not help the country and Nigeria ends up the loser.
Confirmation of ministerial nominees is a serious national assignment and not an opportunity to settle individual, personal or political scores. Section 40 of the Constitution guarantees freedom to join a political party of ones choice and Section 42 is crystal clear that no one shall be discriminated against because of such choice. It states:
“A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or POLITICAL OPINION (emphasis mine), shall not by reason only that he is such a person (a)be subjected either expressly by , or in the practical application of , any law in force in Nigeria or any executive or administrative action, of the government to disabilities or restrictions to which citizens of Nigeria of other communities , ethnic groups, places of origin , circumstances of birth, sex ,religions or POLITICAL OPINIONS (emphasis mine) are not made subject”.
Any rule that leaves the fate of a nominee to the approval of senators from his state who are of a different political bent or ideology has the potential of running foul of the constitution in its application.
I encourage our senators to reconsider this new made up rule which is unknown to the constitution of our federal republic and a stark antithesis to it. We must avoid any temptation to introduce a dangerous and anti people precedent into our body politic.
*Gbajabiamila is the Leader of House of Representatives, Abuja