Chief Robert Clarke (SAN) said the rules of the Senate permitted for at least 30 senators to form a quorum at plenary. However, he added that the problem with it was that the intention of the quorum might not materialise because the opposition could invade the chamber once they learnt about the meeting, thereby disrupting whatever decisions the quorum wanted to take.
A cross-section of Senior Advocates of Nigeria have expressed divergent views over calls for the Senate to reconvene from recess.
The Upper Chamber of the National Assembly had proceeded on recess on Tuesday, July 24, 2018, shortly after 14 senators of the All Progressives Congress defected to the Peoples Democratic Party.
The Senate President, Dr. Bukola Saraki, had announced that the Red Chamber would reconvene on September 25, 2018.
However, some APC senators have called for the Senate to reconvene, with the senator representing Katsina South District, Abu Ibrahim, saying it could be done without Saraki and with only 30 senators.
On whether that was legally possible, SANs have expressed different views.
While some said 30 senators could form a quorum and hold a plenary, others said only the Senate President or his deputy could reconvene the Upper Chamber.
Chief Robert Clarke (SAN) said the rules of the Senate permitted for at least 30 senators to form a quorum at plenary.
However, he added that the problem with it was that the intention of the quorum might not materialise because the opposition could invade the chamber once they learnt about the meeting, thereby disrupting whatever decisions the quorum wanted to take.
He said, “To reconvene if the Senate is in recess, 30 senators can form a quorum and have a plenary. But the problem with this is that if they ask one of them to act as sitting Senate President, they will be short of 30 again. A quorum must have 30 members apart from the presiding officer.
“But let’s be practical, this is politics. Once they reconvene, the opposition too will flock the Senate, so whatever they want to do will not materialise except they are sure they are in the majority.”
Asked if a quorum could act on any national issue, including removing the Senate President, if their meeting was not interfered with, Clarke said whatever decision the quorum took could still be subjected to court judgment.
He said, “Which party has the majority is a question of number and the number can best be known when the full House reconvenes. The 30 people will not be able to do anything or remove the Senate President. This is all politics. They can reconvene without the Senate President, but whether they will have the majority to do whatever they want to do is another issue.
“Even if the quorum is 31 and one presides, they can’t still remove the Senate President because they don’t form the majority. Until the House meets again and we know how many are in the parties, we can’t have the facts.
“If they form the quorum, they can hold a meeting, but whatever they do at that meeting may be subjected to court proceedings by the other people. It’s more of politics and you know politicians are magicians, there is nothing they wouldn’t try to do.”
But, Mr. Emeka Ngige (SAN), differed with Clarke, saying that only the Senate President or his deputy could reconvene the Senate.
He noted that no law required the Senate President to resign if he defected from a party to another.
He said, “I doubt if Abu Ibrahim, being a seasoned senator, would say such a thing, though I don’t know if the Senate Standing Rules have been amended.
“I believe it’s the Senate President or his deputy who can reconvene the Senate. Otherwise, if any other person can reconvene the Senate, there won’t be any certainty in the affairs of the Senate. It may signal a call to anarchy or bedlam in the Senate.
“Meanwhile, there is no law that states that the Senate President should resign if he defects from his party. That may be the case in a parliamentary system of government, but not in a presidential system like ours, where the three arms of government are independent.
“The issue of resigning is just on a moral ground, but the question is, where is honour in Nigerian politics?”
Chief Mike Ozekhome also said no faction of the Senate could forcefully reconvene the Senate except the Senate President or his deputy was present.
He said, “It would be tantamount to grave constitutional anathema and legal ‘harakiri’ for President (Buhari) or any faction of the Senate to forcefully or unilaterally convene an already adjourned Senate which is on its annual recess before the expiration of the vacation period.
“It is only the Senate President or, in his absence, the Deputy Senate President, who can reconvene a properly adjourned session when the Senate is on its annual recess.”
In like manner, Mr. Norrison Quakers (SAN) explained that by virtue of Section 53(1) of the 1999 Constitution, only the Senate President could preside over the Senate proceedings or the Deputy Senate President if the former was absent.
Quakers said the Constitution was silent on what would happen in the absence of both the Senate President and the Deputy Senate President.
Meanwhile, he stressed that the Senate President could only be removed by two-thirds majority of the senators.
The SAN added, “First, the law talks about two-thirds majority of the Senate. If the recess or the adjournment was at the instance of the full house of the Senate or two-thirds majority of the Senate, to reconvene will also have to be by two-thirds majority of the Senate. That’s the constitutional provision.
“If the Senate President, while sitting, adjourns proceedings, a reconvening of it will also have either the Senate President or the Deputy Senate President; it has to be two-thirds majority of the Senate with the leadership of the Senate being involved.
“So, the question is: the number of senators that are coming back, will they constitute two-thirds of the Senate for the purpose of removing the Senate President? If the answer is no, the reconvening of the Senate will be seen as unconstitutional.”
The senator representing Borno South District, Ali Ndume, had accused Saraki of abruptly shutting the Senate and therefore said he wanted it to reconvene in order to resolve some critical national matters.
He said some of the pending matters that needed urgent action included the approval of budget for the Independent National Electoral Commission to prepare for the 2019 elections; the Federal Capital Territory budget; and the appointment of members of the Independent Corrupt Practices and Other Related Offences Commission.
Similarly, Ibrahim made a call for the Senate to reconvene to discuss the pending issues and debunked allegations that some senators had recently attempted to break into the Senate chamber to reconvene plenary.
“We do not need to break into the chamber when we have the number. I will never subscribe to that. We can reconvene. The rules are there that if we are up to 30, we can reconvene. Why should we break into the chamber when we can reconvene legally and do what we want to do?” he had asked.