Was Robert Clarke (SAN) Right? : A Closer Look at the Nigerian Constitution

I know, I know!! The Oracle seems to be talking too much these days abi? Anyway, in my last divination, I talked about how APC's disrespect of the PDP cost them a say in who became the President and Deputy President of the Nigerian Senate. I also briefly mentioned a number of arguments and opinions about the emergence of Saraki and Ekweremadu as Senate President and Deputy Senate President respectively.

One of these arguments was that the elections-ab initio-was unconstitutional; an argument initiated by a Senior Advocate of Nigeria in the person of Robert Clarke on Channels Television. Clarke stated that it was wrong for those who nominated and elected Saraki and Ekweremadu to justify their actions by claiming that the 57 senators-elect present at the time were more than enough to form a quorum in line with the "quorum rule" in the Nigerian constitution. He argued that the "quorum rule" was meant for Senators who have been inaugurated and for the purpose of carrying out normal senate businesses and that it was wrong to be used by mere Senators-elect as an excuse to disenfranchise their colleagues. He further urged the APC to go to court.

Mr. Clarke’s argument resonated widely amongst Nigerians and many see the elections as were conducted at the Senate House on the 9th of June 2015 as unconstitutional...the acceptance of this argument may be because of Mr. Clarke’s  position of authority as a SAN...surely he must know what he is talking about. Although I am not a legal practitioner and I really am not worthy to argue with a highly placed Learned Gentleman in the person of Robert Clarke... this is exactly what I intend to do.  I believe that the Nigerian constitution is for all to read, interpret and seek understanding of. I do personally think that Mr. Clarke has got his interpretation wrong on this occasion and I will say why.

The "quorum rule" can be found in section (54); sub-section (1) of the Nigerian constitution and it states that:

"The quorum of the Senate or of the House of Representatives shall be one-third of all the members of the Legislative House concerned".

So in this case, since there are 109 (presently 108) Senators, a quorum can be formed by 36 Senators. Now, whilst those who elected Saraki and Ekweremadu argue that 57 Senators were more than enough to form a quorum, Mr. Clarke argues that the rule says"...members of the senate or house of representatives" and therefore only comes into play when the Senators have been inaugurated. This sounds legit yeah? Well let's see what the same constitution says about the election of senate leaders.

Section (50), sub-section (1), article (a) of the Nigerian constitution states that there shall be:

“A President and a Deputy President of the Senate, who shall be elected by the members of that House from among themselves.”

Now, this section clearly referred to those who shall elect the Senate President and Deputy President as "members of the house" even though they are yet to be inaugurated. The 57 people who were present when Saraki was elected unopposed and 75 people who were there when Ekweremadu was elected were indeed "members of the house". At this very point, it is clear that Clarke's argument cannot hold water because the constitution clearly sees Senators-elect as members of the house prior to their inauguration.

Clarke also claimed that 51 senators-elect were deliberately disenfranchised...it is this particular claim that annoys me about Clarke. Like I said in my previous article, 108 Senators-elect chose a venue, time and date for an event; at the agreed time, some were absent and the scheduled event went ahead as planned. I cannot understand why those who kept to the agreed time should be chastised...common sense tells me that the 51 APC senators disenfranchised themselves and should really be admonished for their folly. Apart from what common sense tells me, you may wonder if it was constitutional for that election to be held when others were away...let's see what the constitution says.

Section (52), sub-section (1) of the Nigerian constitution says:

“Every member of the Senate or the House of Representatives shall, before taking his seat, declare his assets and liabilities as prescribed in this Constitution and subsequently take and subscribe the Oath of Allegiance and the oath of membership as prescribed in the Seventh Schedule to this Constitution before the President of the Senate or, as the case may be, the Speaker of the House of Representatives, but a member may before taking the oaths take part in the election of a President and a Deputy President of the Senate, as the case may be, or a Speaker and a Deputy Speaker of the House of Representatives”

Now the point of focus is "...but a member may before taking the oaths take part in the election of a President and a Deputy President of the Senate, as the case may be...".Do you notice that the word “may” was used instead of “must”? This section clearly states that participation in the election is optional...Senators can clearly decide not to be there, or decide not to vote even if they were there. Since 51 senators decided to attend another event instead of a pre-agreed event in the Senate house...the 57 who turned up were free to carry on with the events of the day as attendance and participation were optional.

At this point, I plead with Mr. Robert Clarke to drop the sentiments and really study the Nigerian constitution before coming up again on live TV to feed unsuspecting Nigerians with wrong information. I also suggest to you- the Nigerian citizen- to grab yourself a copy of the Nigerian constitution...it not only lets you know what should be allowed and what shouldn't in the Nigerian polity, it also helps you crosscheck the information you get from obviously biased persons as it concerns the laws of the land. God bless Nigeria!

The Oracle has spoken!!