Law News
Recalling Dino Melaye

The plan by the electorate to recall the senator representing Kogi West senatorial district ‎Dino Melaye may prove tougher than his detractors envisaged, but may be potent enough to caution him against playing politics like a unionist, writes Tobi Soniyi

When the Independent National Electoral Commission (INEC), announced a time table for the recall of the senator representing Kogi West senatorial district, Dino Melaye, the senator, who had established a reputation for picking up a fight with anyone who crosses his way panicked.

Three instances supports this assertion. First, he appealed to his colleagues in the Senate to save him citing Order 14 of the Senate Rule. So, Melaye too could panic was the thought in many people’s mind. He got the needed assurance from the Deputy Senate President, Dr Ike Ekwremadu.

Before then, after the petition was submitted to INEC by the campaigners who claimed they had secured 188,588 signatures, more than 52 per cent of about 260.000 voters in the district, and enough to kickstart the recall, Melaye had, in his typical boastful manner, dismissed the plan to recall him with a wave of the hand. Using his twitter handle, he said “it can not succeed. It is a hoax and absolute comedy of errors. I am laughing at the stupidity of Kogi state government.”

Apart from appealing to his colleagues to save him, he took a further step. If truly he remained unshaken by the move to recall him, his next line of action betrayed that position. He hired a lawyer. Not just a lawyer, a Senior Advocate of Nigeria. Since hiring a senior advocate does not come cheap, while paying millions of naira to scuttle the process, if you are unmoved?

Thirdly, mobilizing support to beef up his support base. Four prominent sons of Okun extraction of Kogi, namely, Prof. Eyitayo Lambo, Maj.-Gen. Julius Oshanupin (rtd), Bayo Ojo (SAN) and Tunde Ipinmisho, denounced their purported support for Melaye in his battle to stop the recall. A group, the Okun Development Initiative (ODI) had included the names of the four people in a statement expressing support for Melaye apparently to shore up support for him.

In a statement by the four, they distanced themselves from the media report linking them with support for the embattled senator.

They said: “We wish to state that we do not know ODI and have no relationship with the body in any form whatsoever. It, therefore, follows that we did not and indeed could not have signed any statement for an organisation with which we are not affiliated.

“We have earned our reputation through decades of hard work and would go to any length to resist attempt by anybody or group to draw us into the mess in Kogi State.”

Pointing Accusing Finger at the Kogi state Government.

Recalling a member of the National Assembly isn’t a simple task. Who mobilised the people of the Kogi West district against Melaye? The tough-talking senator, who obviously had stepped on many peoples’ toes, apparently knew where the trouble was coming from; the Kogi state, governor, Yahaya Bello. While speaking in Kabba, Kogi state, Melaye said that the governor was behind the move to recall him.

He said: “Quote me, Kogi state governor, Yahaya Bello, has released N200 million for each of the seven local government areas in my senatorial district to facilitate my recall from the Senate.” After making the unsubstantiated allegations, he led his supporters on a peaceful march around Kabba town. The Chief Press Secretary to the governor, Petra Akinti-Onyegbule, said Melaye accusation against the governor as unfounded and asked members of the public to disregard it

However, when the governor was given an opportunity to deny the allegation that he was behind the plan to recall Melaye, when he visited the Acting President, Yemi Osinbajo at the State House in Abuja, he surprisingly did not deny the allegation. His answer appeared to confirm Melaye’s position. Instead of making a categorical denial, he chose to admonish the Senate to remove the ‘social deviant’ among them.

He said: “Talking of the Senate, let me rather admonish the Senate that, that is an institution that is held in a very high esteem and I think the Senate and indeed the National Assembly is made up of men of high calibre and of high integrity and good character.

“I think it is necessary that that wonderful house should, as a matter of urgency, and as a matter of fact, check any social deviant that exists within them before they could be adjudged birds of the same feather. I know they are not of the same feather.”

Melaye had accused the governor of targeting him because he insisted that Kogi workers must be paid. Those who have inside knowledge of the wrangling between the two also said that Melaye objected to the appointment of Taofiq Isah as the coordinator of his Ijumu Local Government Area.

For assuring Melaye that the recall process was dead on arrival because of the rigorous constitutional requirements of undertaking a successful recall, the Deputy Senate President, came under heavy criticisms.

Among those who have publicly criticized the Senate for appearing to undermine the recall process is a former Minister of Education and a co-leader of the #BringBackOurGirls group, Oby Ezekwesili.

Responding to the ‘dead on arrival’ position taken by Ekweremadu, the former minister accused the Deputy Senate President of speaking “so cynically and without due respect to citizens’ right”.

Mrs. Ezekwesili (@obyezeks) tweeted, “This too shall pass. Our members of @nassnigeria are like a man who NEVER imagined he would get an Ozo title. He wears the beads on his knees instead of ankles!
“Funny fellows that call themselves ‘Excellencies, Distinguished, and Honorable’. They don’t know that ‘the hood does not make a monk’”. She also took on the Senate President, Dr Bukola Saraki who was also said to have taken a position that also appeared to undermine the process.

Mrs. Ezekwesili warned the senate president to stop “talking down” on citizens.
“No serious leader of any institution of democracy in a serious country that respects its citizens speaks like you,” she warned Saraki.

The Deputy Senate President, has however, mounted a strong defence to justify his position. Throwing more light on Ekweremadu’s statement, his Special Adviser on Media, Mr. Uche Anichukwu, said his principal’s position was fully supported by the provisions of the 1999 constitution as amended.

He said: “Section 69 of the 1999 Constitution is not the only section that guides the process of the recall of a member of the Senate or the House of Representatives.

“Section 69 (a) stipulates that a petition shall be signed by at least one-half of persons registered to vote in the member’s constituency, alleging loss of confidence in that member. It also stipulates that the INEC shall verify the signatures.

“Then, if INEC is satisfied that the signature are authentic, then the commission goes to effect section 69 (b), which is the conduct of a referendum within ninety days of the date of the receipt of the petition. A simple majority of votes of persons registered to vote in the member’s constituency is required for the recall to pass.

“But, that is not the end of the matter because this Section goes hand-in-hand with Section 68 of the Constitution. Section 68 (1) lists conditions based on which a member of the Senate or the House of Representatives shall vacate his seat in the House of which he is a member.

“Then, Section 68 (1) (h) of the Constitution (as amended) provides that a member of either of the Houses shall vacate his seat if ‘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 a member’.

“But Section 68 (2) further provides that ‘The President of the Senate or the Speaker of the House of Representatives, as the case may be, shall give effect to the provisions of subsection (1) of this Section, so however that the President of the Senate or the Speaker of the House of Representatives or a member shall first present evidence satisfactory to the House concerned that any of the provisions of that subsection has become applicable in respect of that member.’

“So, the key words and phrases in Section 68 (2) are ‘give effect’ and ‘satisfactory evidence’.

“It simply implies that if no effect is given by the President of the Senate, it ends as an academic exercise. And if the evidence given is not satisfactory to the Senate concerned, it also ends up as an effort in futility”.

While many share his exposition of the law on recall, they believe he went too far in pre-judging a process that is just unfolding and the outcome of which may still come before him.

The Constitutional Process.

Recalling of a member of the National Assembly is principally governed by section 69 of the 1999 constitution as amended.

It provides as follows: “69. 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, in a referendum conducted by the Independent National Electoral Commission within ninety days of the date of receipt of the petition, approved by a simple majority of the votes of the persons registered to vote in that member’s constituency.”

Similar provisions are contained in the Electoral Act.

The first leg of the process appeared to have been complied with having allegedly secured about 52 per cent signatures of registered voters in the district. The constitution requires that the petitioners should have lost confidence in their representatives. They need nor give reasons why they lost the confidence. But those seeking to recall Melaye had given reasons. They, among others, alleged that he did not bring dividends of democracy to them.

The net step is to verify the petition to determine the validity of the voters who signed the petition. INEC said the notice of verification would be issued today July 10. The verification will take place on August 19, according to the commission’s timetable.

Melaye had alleged that some of those who allegedly signed the petition were dead. Others, he claimed, were misled. Whether all these are true or not, the verification exercise will provide him with the opportunity to dispute the petitioners’ claim. However, those coordinating the recall said that they ensured that each voter who signed the petition attached his or her voter’s card. If this is the case, Melaye’s task has been further made more difficult for him.

If the signatures are successfully verified to be genuine, the process will move to the next step. That is to conduct a referendum which the constitution requires to be a simple majority of yes votes to succeed. The outcome of the referendum will determine the next line of action.

Assuming the referendum turns out successfully, this will lead to invocation of the provisions of section 68 of the constitution, particularly, section 68 (h) which provides thus: “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 brings the process under the requirements the Deputy Senate President relied on in declaring Melaye’s recall dead on arrival. While Ekweremadu holds the views that section 68 has given the leadership of either chambers of the house, the final say in the recall process, there is an alternative view that the consent of the presiding officers of the National Assembly is not required. The purpose of the provision, the view goes, is just to give notice.

However, section 68 (2) appears to strengthen the Deputy Senate President’s position. For ease of reference, the provision is hereby reproduced. It states:

“The President of the Senate or the Speaker of the House of Representatives, as the case may be, shall give effect to the provisions of subsection (1) of this section, so however that the President of the Senate or the Speaker of the House of Representatives or a member shall first present evidence satisfactory to the House concerned that any of the provisions of that subsection has become applicable in respect of that member.”

If the appropriate leadership of the National Assembly, in the Melaye’s case, the Senate President, considers the evidence presented by INEC unsatisfactory, he is at liberty to tell the Senate not to act on it. In that case, the aggrieved petitioners may have no option but to go to court for interpretation. Giving the length of time it takes to resolve cases in the Nigerian courts and our leaders’ penchant to pick and choose which judgments to obey, is the recall process not dead on arrival as claimed by the learned Deputy Senate President?

Learning from the Past.

It is not a coincidence that no one has been successfully recalled under our democratic system. The process isn’t as simple and may be subject to political manipulation. However, attempts had been made in the past but were unsuccessful.

Threat to recall a lawmaker is usually political and it is often resolved politically. In 2005, INEC conducted a recall in Plateau State. It was against the then Speaker of the Plateau State’s House of Assembly, Simon Lalong. Despite getting a court order stopping the process, INEC conducted a reference which went in favour of Lalong. He retained his seat and the petitioners were defeated.

Recourse to the Judiciary

A Lagos based lawyer, Mr John Oloyede has rightly observed that when members of the political class disagree they usually go to the judiciary to sort out the mess.

According to him, politicians always give the judiciary the dirty job to do.

Not leaving anything to chance, Melaye had filed a suit at the Federal High Court in Abuja. The trial judge, Justice John Tsoho had last Thursday issued an order for the status quo to be maintained even though he refused an ex-parte application to stop INEC from going ahead with the recall.

Different interpretations were given to the order. While some said the order had stopped the process, others said that the order was for the process to continue since as at the time it was issued, INEC was already going ahead with the recall.

Melaye’s lawyer, Chief Mike Ozekhome, SAN understandably, said the order meant that INEC should halt the recall process.

Oloyede agreed with him. He said the order had put spanner on the wheel meaning that INEC had to stop. Many agree with him too. In order not to foist a ‘fait acompli’ on the court, the proper step for INEC to take is to exercise restraint otherwise, it will be accused of partisanship and bias.

Melaye may not have been removed, but so far, the saying; ‘attack is the best form of defence’ may be working here. Melaye is usually on the attack, now that he is being attacked, he is struggling to scuttle the process and retain his coveted seat. The good news is that while doing this, he may not be in the best position to attack anyone.

Melaye in an Originating Summons filed on his behalf by Ozekhome, asked the court to declare that the petition presented to INEC for his recall was illegal, unlawful, wrongful, unconstitutional, invalid, null and void and of no effect in law.

He also prayed the court for a declaration that the petition was invalid and of no effect, the same being signed by fictitious, dead and none existing persons in his senatorial district.

He further asked for an order of injunction restraining INEC from commencing or further continuing or completing the process of his recall.

He asks the court to make an order stopping INEC from acting on the petition submitted to it.

He asked the court to stop the commission from conducting any referendum predicated on the fictitious petition allegedly submitted to it by his purported constituents on the basis of the fundamentally and legally flawed petition.

Among other questions, he urged the court to determine whether by provisions of Sections 68 and 69 of the constitution, he was entitled to a fair hearing before the process of his recall as envisaged by the provisions of Section 69 of the constitution could be triggered.

He also asked the court to determine whether the petition was in compliance with the requirements of the constitution, same being heavily tainted with political malice, bad motive, personal vendetta and bad faith, which were initiated by top politicians in Kogi State, who wield enormous power over his Senatorial constituency.

He also asked the court to determine whether the process of recall as provided for in Section 69 of the constitution could be initiated against him when the number of registered and qualified voters in the constituency who purportedly signed the petition was grossly less than the number required in Section 69(a) of the constitution.

Further hearing in the suit will resume on September 29, 2017.

Melaye Mobilises for Work to Resume at Projects Sites

However, some aggrieved voters from Kogi West senatorial district of the state have said that the recall exercise was a wake-up call for Melaye to start doing what he was not doing before the recall process. A spokesperson of the group, Hon. Olowo Cornelius while speaking with journalists said Melaye had mobilized contractors to work on nine different projects across Kogi West senatorial district to show off his image as work commenced at the project sites.

He said that Melaye’s recall was entirely initiated and was being pursued by constituents of Kogi West senatorial district, haven had enough of the senator’s unbearable utterances, conducts and misbehaviour, both in and out of the hallowed chambers of the National Assembly. He noted that “what is happening to Melaiye presently is a self inflicted problem which he has to tackle.”

Source: TML News

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