Why APC Can’t Punish SaraKi, Dogara – Okutepa | Independent Newspapers Limited
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Why APC Can’t Punish SaraKi, Dogara – Okutepa

Posted: Jun 21, 2015 at 12:01 am   /   by   /   comments (0)

Jibrin Samuel Okutepa, a Senior Advocate of Nigeria (SAN), in this interview with David Odama, bares his mind on the National Assembly Crisis and other national issues. Excerpt:

Okutepa

Okutepa

There are contrasting views on the validity or otherwise of the election of the leaderships of the 8th National Assembly, especially that of the senate because of the constitutionality involved. As a legal luminary, what’s your view? Is there a constitutional problem?

The election in the Senate and House of Representatives is governed by section 52 (1) of the 1999 constitution as amended and it entitles every member of the House and Senate the opportunity to elect their leadership. We must make a distinction between the constitutional provisions that give you the entitlement to vote and the refusal to exercise that right. The question we need to ask is was opportunity created for every member of the Senate and the House to attend the inaugural sitting and to vote? My answer is yes. Was any lawmaker obstructed or prevented from attending that sitting? My answer is no. So, where an opportunity is created for you to participate in a proceeding and you choose, out of political convenience, to stay out, then you cannot say that opportunity had not been given to you. It is like taking a horse to the river but you can’t force it to drink the water. There was a date set, a proclamation issued by the President of the Federal Republic of Nigeria that the Senate and the House of Representatives will be inaugurated on the 9th of June and notice was given all members of both the senate and the House and l presume that was why they were in Abuja for that inauguration and a time was also set -10 am on that day.  Some senators-elect were in the chambers and the business of the day commenced. This situation is akin to where a Judge fixed a case for hearing, shared notices to the litigants but then for reason best known to the plaintiff he chose to absent himself from the court while the defendant was in court. The normal consequence is that the Judge will never wait for the litigants to come. My answer, therefore, is that l did not see anything unconstitutional in what took place in the senate and House on June 9. The situation would have been different if other persons by virtue of coercive state apparatus were kept out of the senate. In that case, they can complain that they came to enter to participate in the process but we were prevented from doing so.

What could be the cause of the present disenchantment?

Our politicians must learn to make a distinction between politicking and a constitutional publication. There was a constitutional obligation on each and every one of them to be present in the chambers of the senate for the purpose of participation in the election. So, having chosen to attend a political meeting in contra-distinction to the constitutional imperative  that is obligated on them by section 52 (1), they cannot complain. I speak here as a lawyer and a SAN not as a member of any political party. Until we learn to respect time, the constitution, law and avoid political grandstanding and owing allegiance to individuals rather than to our constitution, then we have not started respecting due process and the rule of law. My answer to your question is that there was nothing unconstitutional: a quorum was met and the senators that made themselves available come from every sector. So if other senators refused to exercise a constitutional right vested on them by not appearing at the time appointed, then who do you blame?

The ruling party, the APC, says it has a constitutional responsibility to punish some of the senators, who presumably rebelled against the position of the party by refusing to attend a meeting, do you think they actually have the powers to carry out their action?

I don’t have answer to your political question. I am neither a member of the APC nor any political party at that. However, we are talking about a serious constitutional duty on every member of the House and the Senate. Section 52 (1) cast an obligation on them to be there and the failure to make themselves available there is their fault because in the court of equity wrongful conduct is no passport to favour. So, if they know that section 52 cast an obligation on them to be there but they were not there at the time both chambers were suppose to start the sitting to be inaugurated, and the party feels those who made themselves available in obedience to Section 52 (1) of the constitution should be punished for not attending a non-constitutional function, then the members should also go to the court to test whether they can be punished for obeying a constitutional imperative imposed on them.

 

What happens where the party constitution clashes with the nation’s constitution?

Where there is a clash between a party constitution and Nigeria’s constitution, it is the Nigerian constitution that prevails because Section 1 (1) says this constitution is supreme and has binding force on all persons and authorities in this country, including all the political parties. Section 52 (1) creates an obligation on every member of the National Assembly to make themselves available at the time and place of the election. Don’t forget the place of the election was not at the International Conference Centre but the hallowed chambers of the National Assembly Complex. While the party is contemplating punishment for the members that obeyed a constitutional duty by conducting an election as required by law, then the question arises, when there is a directive from a political party and a constitutional duty imposed on them which would they obey? I would rather choose to obey the Nigerian constitution than obey a political party’s directive that is clearly a breach of the constitution. Besides, there is no evidence that there was a counter proclamation to the Clerk of the National Assembly that the sitting be postponed from 10 am to another time and it was granted. If that is so, then there is a genuine complaint. It would be comparable to a court fixing to sit at 1pm but opted to sit earlier at 10 am it means it had sat at a time it lacked jurisdiction to sit. l have not been shown evidence that the APC or any of the political parties applied for a stand down of the sitting from 10 am to any other time and was so granted. So, we must not breach our constitution in the guise of politics. In any case, what stopped the APC from holding that meeting a day before the inauguration of the 8th assembly? When you exhibit attitude that is inconsistent with constitutional mandate, l, as a person, would be entitled to disobey that political directive. Anybody punished for obeying the Nigerian constitution will have the right to go to court to fight it.