This expose by Premium Times’ Samuel Ogundipe examines the provisions of the Constitution and the Electoral Act as they apply to a recall exercise.
The unfolding debacle of Kogi State senator, Dino Melaye, has elicited curiosity amongst Nigerians about one of the most obscured but powerful constitutional instruments in Nigeria’s evolving democratic system.
A recall process that began with a few people queuing to etch their signatures in what initially seemed an ill-fated exercise on June 10, has now morphed into arguably the most keenly-watched political phenomenon three weeks later.
On June 22, the Independent National Electoral Commission served a notice of recall proceedings on Mr. Melaye, ushering in the newest recall exercise in the country.
On July 3, the electoral umpire unveiled a timetable of five critical dates for the recall process. The process continued despite Mr. Melaye’s attempts to block it from the court.
Although the provisions for recall are enumerated in the Constitution, ostensibly as tools for accountability, they are rarely tested by the electorate.
While there have been a few recall efforts in the past, no member of the parliament at the local or federal level has ever been recalled.
On August 28, 2005, a recall referendum conducted by INEC in Plateau State was unsuccessful as the incumbent retained his seat with 74 percent of the votes.
Simon Lalong, then Speaker of Plateau State House of Assembly, had reportedly secured a court injunction against his recall, but INEC, under Maurice Iwu, went ahead with the exercise, anyway.
This gives Mr. Melaye hope that the outcome of a referendum, if conducted against him, might not end his mandate; but does not mean the process is, by any means, easy.
Mr. Melaye apparently had this in mind when he first declared his recall process an exercise in futility a day after it began.
“He is shooting the moon and boxing the wind,” the senator said of Governor Yahaya Bello, his political rival whom he strongly believes is financing the recall campaign.
In a display of solidarity, Deputy Senate President, Ike Ekweremadu, assured his embattled colleague that his seat will remain intact.
“The recall process is dead on arrival going by the Constitution,” Mr. Ekweremadu said at the plenary Tuesday. “It’s a long process, after the verification of votes.”
Legality of the process
A recall is the power of voters to unseat a serving lawmaker before the person’s tenure is up.
Practically, the procedures that apply to the recall of federal lawmakers are the same as those for members of a House of Assembly at the state level.
But Section 69 of the Constitution addressed recall for senators and members of the House of Representatives only, while another section dealt with a state-level recall. The process does not apply to elected executives, those can only be impeached.
From Section 69 of the Constitution:
A 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 Independent National Electoral Commission 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 approved by a simple majority of the votes of the persons registered to vote in that member’s constituency, in a referendum conducted by the Independent National Electoral Commission within ninety days of the date of receipt of the petition. See also Section 116 of the Electoral Act.
In Kogi, Mr. Melaye’s opponents said they’ve collated about 188, 588 signatures to recall him from Senate.
The number represents roughly 52.3 percent of 360,098 registered voters, according to the News Agency of Nigeria.
The campaigners also said they ensured that all voters who signed the recall petition attached their respective voter’s cards to the document for proper and easier verification by electoral officers.
The Electoral Act advises that petitioners list offences against a target, but Mr. Melaye’s public image as perhaps the most controversial lawmaker in the Eighth Assembly makes it easy for his opponents to pin as many offences against him as they deem necessary.
Since INEC has announced some key dates in the exercise, it is no longer a question of whether the recall process would be exhausted but if Mr. Melaye can survive it.
Next, INEC will verify that all the signatures are accurate and constitute more than a half of the electorate in his Kogi West Senatorial District as asserted by the petitioners.
The Constitution and the Electoral Act require only a simple majority (51 percent) of ‘Yes’ votes in the referendum that will be conducted after amongst other tasks authentication of submitted signatures.
This may likely be the most difficult stage for officials, especially as Mr. Melaye has said the collated signatures were fictitious in his prayers before the court.
But if INEC could weather the legal, political and other storms and successfully verify the signatures, the referendum is expected to be conducted by the open secret ballot system.
Once the recall process has been completed and results announced, INEC will pass instruction based on the will of the majority in Mr. Melaye’s constituency to the Senate President, in this case, Bukola Saraki, for immediate action.
This will be in accordance with Section 68 (h) of the Constitution:
“The President of the Senate or, as the case may be, the Speaker of the House of Representatives receives a certificate under the hand of the Chairman of the Independent National Electoral Commission stating that the provisions of section 69 of this Constitution have been complied with in respect of the recall of that member.”
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 Mr. Ekweremadu that “The Senate would also verify the legitimacy of the votes before a conclusion is made.”
If Mr. Melaye’s recall succeeds, INEC will conduct a by-election in his constituency.
Although the Constitution and the Electoral Act did not say if a recalled individual could still participate in a bye-election arising from such recall, legal experts say the situation is not that complicated.
Liborous Oshoma, a Lagos-based legal practitioner, said Mr. Melaye can contest if his party nominates him.
He cited the case of Ekiti State governor, Ayo Fayose, who was elected as governor in October 2014, exactly eight years after he was impeached by the House of Assembly in October 2006.
When Mr. Fayose’s 2014 victory was challenged on the basis of his past impeachment, the Supreme Court held that the governor has the constitutional right to stand election because he was not indicted or convicted by any court.
“A recall is neither an indictment nor a conviction,” Mr. Oshoma said. “It’s only a vote of no confidence passed on an elected official by constituents.”
No matter how the process ends, all lawmakers, state and federal, have been put on notice, once again, that their mandate is dependent on voters — and thus they should discharge their duties accordingly.
Source: Premium Times
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